Eminem’s publisher Eight Mile Style is the latest music company to go legal over a brand using uncleared music in videos posted to social media, filing a lawsuit with the Michigan federal court yesterday.
The target this time isn’t a global or even national brand, but a Ford dealership that operates in St Clair, Michigan, about 40 miles from Eminem’s hometown of Detroit. That dealership, says the lawsuit, showed “blatant disregard” for the copyright in the rapper’s music, specifically ‘Lose Yourself’, through its “unauthorised use of the composition in online advertisements for one or more car dealerships”.
Not only did LaFontaine Ford St Clair allegedly use ‘Lose Yourself’ in promotional videos posted to TikTok, Instagram and Facebook last autumn, but it also referenced a lyric from the song as part of the promotion.
“If you had one shot or one opportunity, to seize everything you ever wanted in one moment, would you capture it or just let it slip?” Eminem famously raps at the start of the track from the soundtrack to his film ‘8 Mile’. The dealership’s videos told customers they had “just one shot” to get themselves a special limited edition “Detroit Lions 2024 PowerBoost Hybrid F-150”.
Although social media platforms have licences from the music industry, and on the back of those licences make available libraries of audio clips, those licences only apply to user-generated content, not brand content.
Brands and their digital marketing agencies need to either use only music provided within the platform for brand use - such as tracks in TikTok’s Commercial Music Library - or they need to negotiate bespoke sync deals with the relevant record labels and music publishers.
Importantly - though perhaps not obviously, unless you understand the nitty gritty of music licensing - when a brand uses music sourced from a platform-specific music library, like the TikTok Commercial Music Library, it can only be used on that platform. However, many brands often post videos originally created for TikTok to other platforms like Instagram Reels and YouTube Shorts. This can cause inadvertent copyright slip-ups because the CML licence only covers the TikTok usage.
There have now been a number of lawsuits filed against brands that used music in social media videos without licence, from all three majors and Kobalt, plus the Beastie Boys, whose company sued restaurant chin Chili’s over its use of their track ‘Sabotage’.
With the Beastie Boys, a key part of their lawsuit is that they would never have licensed the use of their track by Chili’s if they had been asked, because the will of late member Adam Yauch included a provision stating that his music should never be licensed for brand use.
Eight Mile Style, however, notes that it has licensed the use of ‘Lose Yourself’ for ads in the past, including within the car industry, but that - of course - doesn’t justify LaFontaine Ford St Clair using the track without permission. Not least because, the lawsuit argues, “LaFontaine’s unlawful actions have materially diminished the future value of the composition should plaintiffs wish to make it available for future commercial advertising opportunities”.
“The composition was licensed and featured in a two minute Chrysler television commercial that aired during the 2011 Super Bowl”, the Eight Mile Style lawsuit also notes, adding, “Chrysler generated millions of dollars of new and used automobile sales across the world from this use of the composition”.
But Chrysler generated that value by legally using Eminem’s track, whereas LaFontaine Ford St Clair wilfully infringed the rapper’s copyright when boosting its sales with his music.