No secondary infringement in distribution of unlicensed Eminem album

02 May 2019

Who’s the real Slim Shady? Or more precisely, who’s the real Slim Shady’s distributor?  This was one of the questions that the court recently had to deal with in a copyright dispute relating to Eminem’s lesser-known first record “Infinite”.
The court found that FBT Productions LLC, the claimant, owned the copyright of the record and that Let Them Eat Vinyl Distribution Ltd, the first defendant, infringed its copyright by manufacturing unlicensed vinyl copies of the album.  However, the court dismissed the claim for secondary infringement against Plastic Head Music Distribution Ltd (Plastic Head), the second defendant, even though it sold the unlicensed copies of the album.
Secondary infringement is a form of copyright infringement where a person or company may not engage in the actual copying but merely contributes to the infringing activities.  For instance, secondary infringement can occur where a person knows that copyright exists and helps someone else to get access to material that is protected by copyright.  It can also occur where infringing albums or other unlicensed works are imported, sold or distributed.  Secondary infringement can only take place where the person or company in question has knowledge or reason to believe that they are dealing with unlicensed copyright protected material.
Not liable
The reason why Plastic Head was not found to be a secondary infringer in the Eminem case is that it did not know and had no reason to believe that it was distributing infringing copies.  The judgment provides guidelines for distributors who accidentally find themselves circulating albums that are not properly licensed, and sets out what facts distributors can reasonably be expected to know.  Plastic Head was found not liable because of the following facts:
  • The managing director of the distributor took immediate action as soon as he received notice that the album he was selling was infringing copyright.  He took the album out of circulation and ceased to sell the records.  This was held to be the actions of an honest man.
  • The distributor had also approached the Mechanical Copyright Protection Society (MCPS) for a licence and was granted permission to make a limited amount of vinyl copies for which they were charged royalty fees.  This indicated that the distributor had every intention to sell the records as legitimately licensed copies.
  • The sleeve of the album openly gave information on the manufacturer and distributor and it provided information on how the copies were licensed.  This further indicated that the companies had every intention to comply with copyright law.
  • The album had been available in Europe for years without previous complaint and the distributor had no reason to believe there could be a copyright issue.  
  • Another minor factor in favour of the distributor was that it was a legitimate business that would not want to risk its reputation.
If you are an artist who is featured on bootleg albums or if you are a distributor who is challenged over the legitimate licensing of records, we can help you resolve any copyright related dispute.

For further information, please contact Beatrice Bass. 

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