The Eminem track “Lose Yourself” featured in the soundtrack to a video shown privately to launch the new Audi A6 Avant. The usage angered the rapper, who had licensed Chrysler to use the same song for an ad shown during the US Super Bowl event. Proceedings have been issued and Kerstin Marek of Osborne Clarke Cologne reports.
Topic: Music
Who: Eight Mile Style (Eminem´s music publisher) v Audi
When: June 2011
Where: Regional Court of Hamburg
Law stated as at: June 2011
What happened:
Eight Mile Style, the music publisher of Eminem, has filed a suit against the German car maker Audi, as Audi has used parts of Eminem´s song “Lose Yourself” in a video without their permission.
The video was shown just once according to Audi, at an internal launch event for the new Audi A6 Avant. Subsequently it has appeared on YouTube although it is unclear who first uploaded it.
What makes things even worse for Audi is that a rather similar spot for the US car maker Chrysler using “Lose Yourself” (with Eminem´s permissission) was recently shown during the Super Bowl event. Audi´s ad is also available via YouTube.
It is reported that the parties are now trying to reach an out-of-court settlement. The trial date was cancelled. Whether Chrysler is bringing its own claims has not been reported. Therefore, this article only deals with the claims of Eight Mile Style.
The law:
Under German copyright law, a copyright infringement does not usually require a complete copy of the work, as the work is also protected against amendments and transformations. Therefore, the use of a song in an ad can constitute an infringement of copyright, even if only the main melody is copied, provided that the other provisions are met.
Copyright grants the rights holder the exclusive right to decide whether, when and how his/her works may be used, i.e., whether the work may be reproduced, translated, edited, distributed, sold, performed, broadcasted or transferred, § 15 German Copyright Act.
Therefore, the question in this case is, whether an internal presentation during an Audi meeting fulfils the publication requirement in the sense of German copyright law.
In a case where a work was performed during a company event of a large enterprise, the Federal Supreme Court held, that performances can be made available without permission of the author, only if the event can be characterised as being private or not open to the public. This presupposes that the members of the audience do not only belong together because of their employment by the same company but are additionally connected through close personal relations. Whether this personal relationship exists is mainly a matter of fact. That means that also club events, taking place exclusively for club members can be classified as being public, if the members have not established bonds amongst each other.
As it is rather unlikely that such bonds were forged amongst the launch presentation participants at Audi, there may be a material risk that the court would regard the video as already having been made available to the public during the internal presentation. Therefore, Eminem’s publisher is arguably entitled to claim injunctive relief and damages even if the ad had never been broadcasted.
In case the court held that the ad was not made publicly available during the presentation, Eight Mile Style would have to prove that Audi made the song publicly available on YouTube. That means that Eight Mile Style would have to prove that the publication on YouTube is attributable to Audi. However, it seems difficult if not impossible to furnish corresponding evidence
The suit was filed with the regional court in Hamburg. In this respect it is interesting to know, that especially in case of IP infringements on the Internet, the complainant is not limited to file suit with the court at the residence of the defendant, but can principally choose any place of trial, as it is assumed that an infringement on the Internet has an impact throughout Germany.
Why this matters:
This case demonstrates very well that the rights of the author must not be underestimated. Especially in times of social media, e.g. YouTube and Facebook, copyright becomes more and more important. Users should be aware of the fact that the placing of protected work on the Internet, e.g. within a specific Facebook group, is to be deemed as “publication” even if access to the work is limited.
