The King & Ballow partner talks about what it's like to be a music business disruptor in the midst of a pandemic.
"I come from a company that has no connection to the record labels," says King & Ballow partner Richard Busch, whose law firm specializes in litigation in the entertainment business. "When people come to me, they know that they have 100% of my loyalty because I am not loyal to anyone other than my customer."
This attitude often opposes the 53-year-old Busch against what he sees as an industry establishment, in the form of large labels, publishers and well-known artists. He is best known for representing two of Marvin Gaye's children when he made a decision that Pharrell Williams and Robin Thicke's song "Blurred Lines" violated the copyright of Gaye's 1977 hit "Got To Give It Up" and by the jury Received damages of $ 7.4 million. (This amount was reduced to about $ 5 million by a judge, then the ruling was largely upheld by the Ninth Circle Court of Appeals.) The decision triggered shock waves in the music business, and some creators believe that the Court of Appeal's decision set a precedent could hinder creativity.
In March, when Megan Thee Stallion's label tried to stop her from releasing Suga, Busch made the unusual decision to issue an injunction against the label, which ultimately allowed the project to be released as planned. In another case, which could potentially shake up the music business by challenging the constitutionality of the Music Modernization Act, he represents one of Eminem's publishers in a lawsuit against Spotify for intentional violation of the mechanical rights to 250 rapper songs. The stakes: potentially more than $ 1 billion in damages and the stability of the new legal structure for publications in the streaming era.
Busch did not want to become a disruptive force in the music business – or a copyright lawyer at all. On one of his first jobs as a King & Ballow employee, he went to New York to process a civil lawsuit against New York's Daily News. When the case ended, he took a taxi to Midtown in a blizzard and exchanged business cards with a man he shared a ride with. Months later his phone rang with a call from the man whose wife was the copyright administrator for Bridgeport Music. The Detroit-based music publisher, which holds the rights to George Clinton compositions such as "Atomic Dog" and "One Nation Under a Groove", had just discovered that hundreds of his songs were used for unlicensed hip-hop recordings.
"I told her I didn't really know music law or copyright law, but she said," You can learn, "Busch recalls." Eight months later, I filed a world-famous litigation against the entire rap music industry for copyright infringement – 478 Cases. "A case where even the two-second Funkadelic's Get Off Your Ass and Jam sample used in NWA's 100 Miles and Runnin was an infringement was an important copyright precedent that changed hip-hop.
While Busch's office is not officially closed due to the coronavirus pandemic, he is now working for his customers from his home in Los Angeles. In June, he filed a lawsuit against Travis Scott on behalf of three songwriters who claim the rapper used their distinctive guitar melody in his hit "Highest in the Room". He also added the Harry Fox Agency to his lawsuit against Spotify, claiming the two companies conspired to cover up copyright infringements by backdated the documents to obtain the mandatory mechanical licenses.
What is it like to be a litigator in the midst of the coronavirus pandemic?
It is a challenge. Hearings are decided either on the basis of the submitted documents or after a telephone hearing. I like to think that my papers are pretty convincing, but customers want you to be in the room personally. When you walk into a courtroom, you can read the room and receive signals from the judge's questions. Deposits via zoom create their own obstacles. Part of the purpose of filing is to be right there with the witness. Now you don't know what's going on behind the scenes and what's going on during the breaks. It is simply not an effective process. Unfortunately, I think this will remain so for most of 2020, and when we get back to the courtrooms, there will be a bottleneck in the cases.
The pandemic has hit the music industry hard, especially the live business. Do you expect a flood of cases related to this?
I don't want to give names, but I have someone who is an actor and has a movie in Mexico to start producing. He was not feeling well and the studio threatened him. I don't know if this will lead to an assertion, but you'll see something like that. I think most people will be sensible: that's why contracts have force majeure provisions. I cannot imagine that courts are very benevolent about claims that someone has not risked their lives to appear at an event and that this is a violation of the contract. However, I advise my clients to protect themselves and document everything – all inappropriate requests – and take whatever action they deem appropriate to ensure their own security.
You won the Blurred Lines case without the judge allowing you to play Marvin Gaye's "Got To Give It Up" in its entirety. Instead, the decision was based on the grades submitted to the US Copyright Office. You won, but you said you didn't like this judgment. Why?
The purpose of submitting a deposit copy with a copyright registration is for archiving – to identify the work, not to define the scope. Now, in the “Stairway to Heaven” case, the Ninth Circuit has essentially decided that copyright registration defines the scope of the work – which is contrary to the law of many other circuits. In my opinion, this judgment is ridiculous because Marvin Gaye and the plaintiff in the Led Zeppelin case (spirit guitarist Randy Wolfe, whose estate filed the case) created their music in the studio. They weren't sitting there writing notes. The publisher hired someone to make a sketch of the composition, called a lead sheet, for submission to the Copyright Office. What they are saying by this decision is that Marvin Gaye is no longer the composer of "Got To Give It Up" – that rather an unknown person who was hired to create a lead sheet to get a copyright registration, is the author. It is absurd! I think the Supreme Court, when dealing with the issue, would conclude that the Ninth Circuit was absolutely wrong.
In your lawsuit against Spotify filed by Eminems publisher Eight Mile Style, you described the Music Modernization Act as "unconstitutional". Why do you think so – and why are you so determined to overturn it?
The law is very clear and well established that copyright infringement is a property right that is vested at the time of the violation. The Music Modernization Act, which came into force in October 2018, contains a provision that retrospectively states that a plaintiff who claims a copyright infringement against DSPs (Digital Service Providers) such as Spotify cannot receive legal damages or legal fees if the lawsuit has not been filed gives DSPs retroactive immunity. For example, publishers and songwriters whose work has been injured lose the majority, if not all, of their teeth if they haven't filed a lawsuit by January 1, 2018 – before the law has even been passed. They deprive them of their rights and give the DSPs a card for years of copyright infringement that can free them from prison. That's not fair. No less authority than Laurence Tribe, a scholar at Harvard Law School, noted that our constitutional claims are "substantial".
One of your customers, the pop punk band Yellowcard, took some time to say that after he died of a drug overdose, she would continue her infringement proceedings against Juice WRLD's "Lucid Dreams". How do you control the sensitivity of a lawsuit in such a case?
It is important to remember that # 1 the lawsuit was filed before Juice WRLD passed away, and # 2 that there are other co-authors, production companies, music publishers, record labels, and distributors who all benefit from it, we believe that this is a hurtful job. While my customers are certainly sensitive and aware of these issues, the question is whether it is fair that all of these parties continue to benefit financially.
This article originally appeared in the July 25, 2020 billboard edition.