Richard Busch of Nashville-based King & Ballow has worked on some of the most important music disputes of recent years. The litigation partner represented artist Eminem's producers in the landmark 2010 case F.B.T. Productions v. Aftermath Records, in which the 9th U.S. Circuit Court of Appeals held that record labels' agreements with digital distributors are licenses, as opposed to sales, which gives the recording artist bigger royalty payments.
Busch also worked on the winning side of the 6th Circuit ruling from 2009, Bridgeport Music v. UMG Recordings, when a panel held that even the sampling of a single word can constitute copyright infringement.
Lawdragon: Can you explain to our readers, particular those who do not practice in this area of law, why F.B.T. Productions believed it was due a greater share of royalties and sued Universal Music Group (parent company of Aftermath Records)?
Richard Busch: F.B.T./Eminem's agreement with Universal provides that when Universal licenses a master sound recording to a third party for the manufacture and sale of records, or for any other purposes, Eminem/F.B.T. are to receive 50% of Universal's net receipts from such license. It was F.B.T.'s position that the agreements between Universal and iTunes, amongst other sellers of digital downloads and ringtones, were licenses, and Eminem/F.B.T. were therefore entitled to 50% of their net receipts. Universal had been paying Eminem/F.B.T. for these sales at the agreement's much lower royalty rate for regular record sales.
LD: Given the 9th Circuit ruling, what will happen now in district court proceedings?
RB: Universal has filed a petition for certiorari with the Supreme Court. If that is denied, the case will go back to the lower court for proceedings on damages.
LD: More broadly, what do you see as the big-picture significance of the ruling that the record-label agreements with the online distributors were licenses as opposed to sales?
RB: The bigger picture is that other artists who have similar language may have been underpaid on royalties for digital sales and would be able to make similar claims against their record labels.
LD: What about your victory from the previous year in Bridgeport Music v. UMG Recordings - can you discuss the possible impact that case may have on sampling practices?
RB: In that case, the Sixth Circuit affirmed the jury's finding, and the finding of the district court, that even an ordinary word, like "dog," if used in a new composition the same way it is used in an older composition, can be the basis of a copyright infringement claim. We argued that the repeated use of "dog" in George Clinton's legendary song, Atomic Dog, was used as "musical punctuation," and that it was used in the same way in the infringing song.
We also contended that the defendants used the signature line from Atomic Dog, "Bow-wow-wow-yippee yo-yippee yea" and that the taking of that signature line was infringement. The court rejected the defendants' fair use and de minimis defenses, so the impact again is to create original work, and don't steal someone else's composition, because the taking of an important part of a song, even if small in duration, can be copyright infringement.
LD: What led you to join King & Ballow?
RB: I was clerking for a Federal District Court Judge, and they recruited me. Nashville seemed like a nice place to live, and King & Ballow was involved in some very exciting litigation at the time.
LD: Once there, how did you develop a focus on music litigation? Did you always want to practice in this field or was there a certain case that drew you in?
RB: Actually, I was prosecuting a civil racketeering case for one of King & Ballow's clients in New York, and just happened to be living in the same building as Bridgeport's copyright administrator. We met, she introduced me to the owner of Bridgeport Music, and the rest, you might say, is history.
LD: What about it do you find particularly interesting or challenging?
RB: The ever developing landscape of entertainment litigation is challenging, as well as the competing forces that are always at work between those who think third parties can take someone else's property without penalty and those who are true protectors of intellectual property rights. Also, going up against the major record labels, who have very deep pockets obviously, is always a challenge. The most rewarding part of this has been establishing law in this area in numerous decisions now, which are being cited in just about every case in this area, and, I am told, being taught in law schools. I take great pride in that.