Battle in Belgium over Eminem song


A five-year legal controversy over Eminem's 2001 track "Cleanin' Out My Closet" and Belgian violinist Raymond Vincent's 1968 "Daydream" is either nearing an end or about to spark more international litigation. The case is raising questions about Belgian copyright law, the rights and obligations of Belgian authors' and publishers' society SABAM and the Belgian government's oversight of the society.

In the U.S., a plaintiff must prove that a defendant had access to the plaintiff's song before a defendant is liable for damages. There may lawfully be songs that are identical to others -- after all, there are a limited number of notes one can use -- as long as they weren't copied from the other songs.

But in Belgium, Brussels-based lawyer Benoit Michaux says, the plaintiff does not have to prove that the defendant actually had access to the plaintiff's song (e.g., heard it) when there are clearly substantial similarities. The law presumes the defendant had access to the song in such a case.

This is where an expert musicologist's opinion can be helpful.

Vincent contacted SABAM in 2002 saying he believed Eminem's song infringed a portion -- eight out of about 160 measures--of his song. In May 2003, Vincent applied to SABAM to block royalties for Eminem's song, written by Marshall Mathers (aka Eminem) and Jeff Bass.

SABAM's Daily Management Committee reviewed Vincent's claim. In June 2003, SABAM notified by letter its American counterpart, BMI, as well as Eminem's Belgian publisher. The letter detailed the committee's opinion of infringement after comparing portions of the two songs.

The letter described "Daydream" as having three different themes: the first was originally composed by Vincent, while the second and the third were composed by Vincent but "inspired by Tchaikovsky." The committee found that a portion of Eminem's song had "flagrant similarities with the first theme," "very similar" harmonic sequences and three measures that included a "bass motif" identical to the melody of the same section of "Daydream."

At MIDEM this month, SABAM executive director of operations Christophe Depreter told me that SABAM offers a service to its members, for a fee, to provide an expert opinion about music. Also at MIDEM, SABAM counsel Carine Libert explained that the alleged infringer isn't notified during the review because SABAM, as a retained expert, must maintain the confidentiality of its requesting member. The committee provides an opinion that the member may use or not use.

In 2005, Vincent and BMG Unisong Music Publishing, the Belgian subpublisher for the Eminem song controlled by Joel Martin's Eight Mile Style Music, voluntarily appeared before the Brussels Regional Court. Neither Martin nor Eminem participated. The court adopted the SABAM opinion and rendered a judgment in favor of Vincent.

The Brussels Court of Appeals in December 2007 rescinded the judgment.

"It is very clear that nothing has been borrowed, particularly when the two pieces are superimposed, which makes the difference between the two very noticeable, producing a cacophony," the appeals court wrote.

The court also noted that the SABAM opinion had "no binding value," and it criticized that opinion as being "poorly substantiated" and "not based on any concrete demonstration by the six experts allegedly consulted by SABAM."

In fact, the court wrote, Vincent's first theme was really not original anyway. " 'Daydream' in its entirety is inspired by Tchaikovsky."

"I was in the studio with Jeff and Marshall," Martin says. "It was absurd that they used any portion of an obscure Belgian song (written) before Marshall was born. And if rappers were to use old records, they would use the records. They don't steal a melody."

Regardless, Martin says, some societies -- like Japan's JASRAC -- stopped sending accountings or payments as a result of SABAM's letter. He questions the Belgian society's right to reach across its borders.

Libert says that SABAM believes it was obligated to send out the letters. The Belgian Ministry of Economics, a government watchdog, requires SABAM to protect its members' rights throughout the world. As a result of the ministry's control over the society, she says, SABAM must suggest strongly -- even if it means having face-to-face meetings with other societies -- that they withhold royalties on songs until the dispute over a SABAM member's rights is resolved.

Susan Butler covers legal affairs for Billboard.