STOCKHOLM (CelebrityAccess) – The music publishing company that owns music penned by multiplatinum recording Hip-Hop icon and rapper – Marshall Mathers, who performs under the stage name Eminem, won a recent legal battle against Spotify and its CEO, Swedish billionaire Daniel Ek.
Ek will now have to provide sworn testimony in a long-running copyright infringement lawsuit brought by Eight Mile Style, LLC against Spotify for allegedly offering users 243 Eminem songs on demand without first obtaining the proper licenses. The songs in question make up the majority of the rapper’s catalog, which currently stands at a little under 400 songs.
Eminem does not own the rights to those songs, has not been consulted on the publishing company’s decisions, and is not involved in the litigation.
“Eight Mile Style is not owned or controlled by Eminem,” Mathers’ spokesperson Dennis Dennehy told Law&Crime. “It’s a production company owned by Joel Martin and The Bass Brothers that controls the publishing rights to his early catalog. He is not involved in this lawsuit in any way.” The publishing company alleges that 243 older songs have been streamed billions of times and, lacking the proper licensing, have resulted in approximately $36.45 million in lost revenue.
In a complaint filed in August 2019, Eight Mile says, “On information and belief, despite their not being licensed, the recordings of the Eight Mile Compositions have streamed on Spotify billions of times.” Spotify has not accounted to Eight Mile or paid Eight Mile for these streams but instead remitted random payments of some sort, which only purport to account for a fraction of those streams.”
Spotify countersued Kobalt Music Publishing in May 2020, bringing them into the lawsuit as a third party on the duel basis that: (1) Eight Mile Style’s underlying claims lacked merit but; (2) that if there was any merit to the claims, Kobalt should bear the burden of any infringement because they, Kobalt, led Spotify to believe they were allowed to license the songs in question on Eminem’s behalf.
“For years, Kobalt granted licenses to Spotify for musical compositions allegedly owned by Eight Mile,” the third-party complaint alleges. “Kobalt had the express or apparent authority of Eight Mile to do so on Eight Mile’s behalf, and certainly (at the very least) led Spotify to believe that it had such authority,”, reports Law&Crime.
“If Spotify were deemed liable to Eight Mile, the responsibility for such liability rests with Kobalt because, through its contractual representations and course of conduct, Kobalt caused Spotify to believe that Kobalt had granted valid licenses to the Compositions, and Spotify made sound recordings available on its service on the basis of that reasonable belief,” the streamer’s argument goes on. “Kobalt agreed to indemnify Spotify for precisely this type of claim.”
Eight Mile Style later included the Harry Fox Agency, a music rights and licensing management company, into the lawsuit as well. Things picked up in March of this year when Magistrate Judge Chip Frensley okayed Eight Mile Style’s request to depose Ek, shrugging off the streamer’s argument that their CEO has a lot of work to do.
On July 15, 2022, US District Judge Aleta Trauger declined Spotify’s request.
“The court has little difficulty rejecting Spotify’s argument,” the judge noted – citing a relevant federal rule of civil procedure. “Spotify suggests that the Magistrate Judge committed an error of law under that rule by failing to properly consider the possibility that another witness, former Spotify executive and in-house counsel James Duffett-Smith, would be a less burdensome alternative witness. The Magistrate Judge, however, engaged in a factual inquiry into whether Duffett-Smith was an adequate alternative to Ek and concluded that he was not because (1) Duffett-Smith, who is an attorney, would be more constrained by privilege and (2) the evidence had not established that Duffett-Smith’s knowledge was identical to Ek’s.”
“When a court considers the burdens associated with deposing an objected-to witness, the court must, of course, consider all of the considerations unique to that potential deponent, including those related to his unique job title and responsibilities, if applicable,” Trauger explained. “The Magistrate Judge, however, acknowledged those very considerations and engaged in a factual inquiry regarding both the amount of hardship involved in deposing Ek and the potential availability of information from other sources, and the Magistrate Judge concluded that an appropriate balance could be reached by allowing a time-limited, remote deposition of Ek that could be completed from virtually anywhere on Earth in less than half a day.”
It remains unclear as to when Ek might be deposed. Key motions in the case are due in July 2023, and CEO will likely be deposed well before then. A trial had been set for September 2023, but Judge Trauger ruled last month that the timeline was “not realistic” and pushed back the start date indefinitely.