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Eminem producers argue that UK label’s unlicensed pressing of Infinite caused big anniversary re-release plans to be abandoned

By Chris Cooke | Published on Wednesday 10 March 2021

The production duo behind Eminem’s early recordings were in the London high court yesterday. Well, their legal rep Zoomed in to a court hearing to discuss what damages the Bass Brothers should receive from a UK-based label that pressed up unlicensed versions of Eminem’s first ever album ‘Infinite’, which was originally released by the producers’ label.

The pay-out the producers will receive could depend on whether the court believes that they were planning their own anniversary re-release of the record before Let Them Eat Vinyl started selling its version, and that they incurred various losses when forced to call off those plans.

This week’s hearing follows on from a 2019 court battle that concluded that Let Them Eat Vinyl infringed the sound recording copyrights owned by Bass Brothers company FBT Productions by pressing up a short run of ‘Infinite’ on vinyl.

Although the court also concluded that LTEV owner Stephen Beatty did not knowingly infringe FBT’s rights, and therefore neither his label nor its sister company Plastic Head Music Distribution were liable for secondary copyright infringement for distributing the infringing discs.

Before LTEV pressed up the vinyl versions of ‘Infinite’, Plastic Head had been selling CD versions of the album that it sourced from US-based Boogie Up Productions, having taken over the European distribution of those discs from a German distributor that had gone under. In 2014, Boogie Up told Plastic Head that it had acquired the rights to manufacture vinyl versions of the Eminem record, which resulted in LTEV pressing up 2891 copies that were then distributed by its sister distribution firm.

In the original 2019 court hearing, legal reps for Beatty argued that their client acted in good faith in releasing the record, pointing out that he had secured a licence from collecting society MCPS to cover the song rights in the album, he’d printed his company’s name and address on the artwork of the records he manufactured, and he ran an otherwise entirely legitimate vinyl re-release label. None of which pointed to a guy trying to profit from bootleg recordings.

Those arguments were enough for LTEV and Plastic Head to avoid the secondary infringement liabilities, but the label had made 2891 copies of ‘Infinite’ without a proper licence, meaning it was still liable for primary infringement. Hence this week’s hearing on damages.

Now, at this point in the US, FBT would simply push for $150,000 in statutory damages per infringement. But under UK law you can only claim actual damages, which is to say the money the infringer made from the infringement, or the monies the copyright owner lost. You obviously go for whichever is highest.

Which brings us to FBT’s claim that it had been planning its own limited run anniversary vinyl re-release of ‘Infinite’. The album would have been remastered, it says, plus there would have been some single releases and a super documentary telling the story of the making of the album.

However, once LTEV had put out its pressing of the record, FBT abandoned that project, reckoning that any Eminem fan who might have bought their anniversary releases had now already got a copy of the album on vinyl.

Of course, you might think that – with LTEV only pressing up 2891 copies of the LP – that wouldn’t have damaged the big FBT re-release campaign too much.

However, FBT argues, when it first discovered the LTEV pressing it had no idea how many copies had been sold. A copy had popped up in a shop in Detroit, so it was reasonable for FBT to believe LTEV had put out and exported a sufficiently large quantity of records to saturate the market in both Europe and the US. Which is why it called off the anniversary re-issue.

That decision meant that FBT lost out of on nearly $264,000 in record sales income, plus it is out of pocket for the $25,000 it had already invested in the planned documentary. Some legal technicalities means it can’t sue for that total amount, but FBT nevertheless believes LTEV should pay it $222,000, or £160,000.

However, according to Law360, legal reps for Beatty told the high court this week: “The evidence that there was a serious intention [by FBT] to actually release this record is tenuous in the extreme. There isn’t a single contemporaneous document linking the discovery of the defendants’ infringing activity to the abandonment of a project”. In fact, “there is very little evidence that there was a project”.

LTEV’s lawyer also noted that the CD version of ‘Infinite’ had been available for years in Europe, initially via the German distributor, and that no action had been taken to stop the distribution of those discs.

It remains to be seen how the judge rules on this. Although – Law360 adds – FBT’s legal rep concluded yesterday’s session by stating it was “bold” for the other side to accuse his client of lying about its anniversary release plans.