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The complaint filed in Michigan federal court not only accuses the popular social network of lifting one of Eminem’s songs for the April launch of a new application called “Facebook Home,” but tells the story of how Facebook’s advertising company attempted to use Eminem to attract the liking of Mark Zuckerberg, and how, when threatened with copyright allegations, the ad agency’s response was to attack hip-hop producer (and sometime Eminem collaborator) Dr. Dre for being a flagrant thief who had stolen the song in question from Michael Jackson.
In the music world, there are only so many degrees of connection. This copyright infringement lawsuit adds another dimension by discussing willfulness in the context of likes and dislikes.
According to the complaint, when Zuckerberg held that April event to unveil “Facebook Home,” its new mobile software, he introduced an advertisement entitled “Airplane,” which featured music described as substantially similar to “Under the Influence,” from Eminem and D12 appearing on the Marshall Mathers LP.
The choice of music is said to be no accident. Zuckerberg reportedly called himself “Slim Shady” — one of Eminem’s monikers — in an early website he created in 1999.
The use of song in the advertisement was allegedly picked by Portland, Oregon-based ad firm Wieden + Kennedy. The lawsuit says that “W+K incorporated said music into the Airplane advertisement in an effort to curry favor with Facebook by catering to Zuckerberg’s personal likes and interests.”
After the ad was picked up online, the lawsuit implies that ordinary observers noticed the similarity of the music and that, as a result, Facebook then released the Airplane advertisement on its official YouTube channel but in altered form.
“The alteration of the Airplane advertisement was an admission that Facebook knew it had infringed on the Eminem/D12 Composition,” says the lawsuit.
But Eight Mile Style, which is controlled by the rapper born as Marshall Mathers as well as his producers Mark and Jeff Bass, wasn’t satisfied. The publishing company makes the point that it’s not possible to simply alter music to escape an infringement because the company owns rights to derivatives. So now, the company is asserting that Facebook and W+K are in just as much trouble because it hasn’t “granted W+K or Facebook permission to alter the Eminem/D12 Composition.”
A cease-and-desist letter was sent, and the defendants returned a response late last month.
“The April 29, 2013 reply from counsel was brimming with bellicose language and replete with gross factual inaccuracies,” says the lawsuit. “First, counsel falsely and wrongfully alleged that Andre Young, professionally known as Dr. Dre, composed ‘Under the Influence.’ Yet, a simple Internet search of the Eminem/D12 Composition would have revealed that ‘Under the Influence’ was composed by Marshall Mathers, III, and members of D12, including Denaun Porter, Von Carlisle, Ondre Moore, R. Arthur Johnson, and DeShaun Holton. Dr. Dre likewise did not produce ‘Under the Influence.'”
Nevertheless, lawyers representing W+K are said to have launched an attack on Dr. Dre.
“After wrongfully disparaging Dr. Dre with inflammatory accusations about his practices as a producer and his alleged ‘long, well-documented history of copyright infringement,’ (which is misguided, gratuitous and irrelevant since Dr. Dre was not involved in the creation of the Eminem/D12 Composition), the letter continues with bizarre allegations that Dr. Dre has actually stolen from Michael Jackson because ‘Under The Influence’ is supposedly a rip-off of one of Michael Jackson’s songs.”
The complaint adds, “Not one person, however, who heard the Facebook advertisement, and commented about it on the blogosphere, noted any similarity between the Facebook advertisement and any Michael Jackson song. To the contrary, it is clear that the Airplane advertisement copied directly the Eminem/D12 Composition, and ordinary observers have so concluded.”
The plaintiff is seeking maximum statutory damages (up to $150,000 per infringement) for the defendants’ allegedly willful misappropriation of Eminem’s song. The publisher is represented by Richard Busch at King & Ballow.
Facebook declined comment.
Below is a look at the Facebook advertisement in question:
E-mail: email@example.com; Twitter: @eriqgardner