If any music lawyer worries the music business, it’s Richard Busch.
On Friday (Oct. 6), the 9th Circuit will hear oral arguments in the appeal of the “Blurred Lines” lawsuit, in which Busch represents two of Marvin Gaye‘s children, Nona Gaye and Frankie Gaye*, against Pharrell Williams and Robin Thicke. In 2015, in a decision that became controversial among songwriters and rights holders worried about lawsuits, a jury awarded the family $7.5 million in damages — a verdict that was later cut by a judge to $5.3 million plus ongoing royalties. The 9th Circuit’s decision could set a landmark precedent on the line between originality and infringement in musical compositions.
It’s just one of the cases that has the industry sweating the Nashville-based litigator, head of the entertainment and intellectual property practices at King & Ballow. In July, he filed two cases against Spotify, on behalf of Robert Gaudio and Bluewater Music Services Corporation, alleging that the streaming company didn’t pay the proper mechanical royalties on the compositions the publishers owned. (Spotify says it has set aside royalties when it couldn’t identify or find the owners or compositions, and the issue has been the subject of an NMPA settlement, as well as a class-action settlement.) Spotify has signaled it may argue that it doesn’t need to pay mechanical royalties. Busch filed a third case, amid objections to the class-action settlement — and there are signs that the issue could expand to the point where it could cast a cloud over Spotify as it prepares to go public.
Busch is no stranger to big cases. He made his name bringing hundreds of copyright lawsuits on behalf of Bridgeport Music, the company that had come to own George Clinton’s song copyrights; one of the cases, against Dimension Films, set an important and controversial precedent in the 6th Circuit. Later, a case against labels that he worked on resulted in a decision that iTunes downloads are legally considered licenses, not sales, meaning that labels should pay higher royalties to artists and producers.
As he prepares to argue against the appeal of the “Blurred Lines” verdict, Busch, unsurprisingly, believes he’s on solid ground. “I disagree with people who say this case is an outlier,” he says by phone from his hotel in Los Angeles. “This is a strong case involving compositional elements and the fundamentals of what makes a strong infringement case.”
Billboard: You’re litigating some of the year’s most important copyright issues — the “Blurred Lines” case and three music publisher lawsuits against Spotify involving mechanical rights — but you didn’t start your career as an entertainment lawyer. How did you get involved in music?
Richard Busch: I was in New York working on a very big civil racketeering case with more than 600 defendants — it involved allegedly-fraudulent workers compensation claims at the New York Daily News. On my last day in New York, after the case was settled, I was waiting outside of my building for a taxi and offered to share the next one that came with a stranger waiting next to me. He turned out to be the husband of the copyright administrator for Bridgeport Music. We started talking, I told him I was going back to Nashville, and he said that he and his wife go to Nashville for music conferences and we should have dinner the next time they did. Less than a year later, he called, we had dinner, and she told me that Bridgeport had identified 500 songs that sampled their music and then introduced me to the owner of Bridgeport Music. The rest is history.
How much had you thought about music at the time?
Honestly, when I was first introduced to the owner of Bridgeport Music — this was the end of 1999, maybe early 2000 — I didn’t have much experience with music law or copyright law at all. We launched the Bridgeport Music litigation in May 2001. We filed about 480 cases [against labels and publishers that used elements of songs by Clinton and the Ohio Players and others that had come to be owned by Bridgeport] and settled about 90 percent of them. We won the cases we tried, which included an important case against Bad Boy Entertainment for a Notorious B.I.G. sample and a case involving the use of small phrases from “Atomic Dog.” We also obtained a landmark 6th Circuit decision against Dimension Films, in which the 6th Circuit held that held that there’s no de minimus defense to digital copying of a sound recording.
How did the “Blurred Lines” case come to you and why did you decide to take it?
It was referred to me by Mark Levinsohn, the transactional lawyer for the Gaye family. If you remember correctly, Pharrell Williams and Robin Thicke sued the Gaye family [seeking a declaratory judgment that “Blurred Lines” didn’t infringe Gaye’s “Got to Give It Up.”] We had a very strong musicology report, and I felt it was a strong claim.
Some of the media coverage focused on the idea that a win for your side would open up a can of worms, so more current songwriters could be sued by the owners of old compositions.
I could not disagree more. You have to check the source and realize that those who say that in an article may have an agenda. That was their pitch at trial and it has been the entire story of their legal team. It’s just not true. It is based on standards that have been in place for decades. When the Isley Brothers sued Michael Bolton [for infringing their copyright to the song “Love Is a Wonderful Thing” on his song of the same name], there was the same outcry: “This is going to stop the original creation of music.” It didn’t happen then, and it’s not going to happen now.
Where’s the line between influence and infringement?
There are real standards. I can’t tell you how many people have come to me saying someone copied their song and I sent it to a musicologist and they said it wasn’t original or it wasn’t compositionally similar — I turn down 80 to 90 percent of the cases that come to me. But we have a case involving Lil Jon and DJ Snake [who are being sued over “Turn Down For What” by Golden Crown Publishing for infringing the Freddie GZ song of the same name]. And we just settled a case involving Ed Sheeran [that involved a lawsuit brought by songwriters Martin Harrington and Thomas Leonard over his song “Photograph”]. There are standards you have to meet — and the “Blurred Lines” case met them.
How did you end up representing the music publishers that are suing Spotify for infringing their mechanical rights?
I was approached by someone who had been working on these issues and it seemed like the right thing to do. Spotify has created a multi-billion dollar company — if they’re not licensing the songs on their service, or paying properly, or at all, that’s obviously not right.
Spotify has always said that it can’t “match” all of the compositions it plays so it sets aside money for rightsholders — which the law doesn’t say is an option, but it also seems like they’re trying to do the right thing. Do you think the company acted badly? What about — and this is a separate issue — willfilly?
I disagree that they could not do that match if they wanted to do so. What we allege in the complaint is that they wanted to be first to market and they wanted to have all the compositions on their service and they didn’t care whether they were licensed or songwriters or publishers paid. We set out in detail in the Complaint how they continued doing so after being put on notice. That’s the definition of willful behavior.
Spotify filed a motion that seems to imply that its legal team is going to argue that it doesn’t have to pay mechanical royalties. Did that surprise you?
It was surprising because it’s contrary to their practice, their public statements about their obligation to do so, and the law.
There are music executives who worry that this will hurt Spotify, which is driving the recovery of the industry.
They’re not going to go out of business — it’s valued at $16 billion! I don’t think that making a streaming service like Spotify liable for infringement is going to do anything but make sure that in the future companies follow the law.
*Ed. Note: The original version of this story said Busch represented the Gaye family in the “Blurred Lines” lawsuit. Busch represents two of Gaye’s children; the third, Marvin Gaye III, is represented by Paul Philips.