Who the Jury Believes

Richard Busch will never forget the dispiriting phone call he got from opposing counsel on the eve of the “Blurred Lines” trial.

An IP and entertainment lawyer based in Nashville, Busch was representing the family of Marvin Gaye, who was alleging that Pharrell Williams and Robin Thicke’s 2013 hit song “Blurred Lines” had ripped off Gaye’s 1977 song “Got to Give It Up.” Except that day, in a pretrial conference, the judge had hurt the family’s case by ruling Busch could not play “Got to Give It Up” for the jury.

“It was not a good day,” he says.

At the DoubleTree Hotel in Los Angeles, Busch stepped out of the conference “war room” to take the call from Williams’ lawyer. “He basically said, ‘Richard, in light of this ruling, you can’t win,’” Busch remembers. “‘How can you win a copyright infringement case where you can’t play the infringed song? A lawyer needs to know when to extricate himself from a case.’”

He also reminded Busch that if he didn’t settle, and the other side won, it could recoup millions in attorney’s fees. The Gaye family would see the royalties they relied upon garnished. “‘And it’ll be your fault because you didn’t tell them to settle,’” the attorney said.

After hanging up, Busch called Marvin Gaye’s wife. When Jan Gaye first heard “Blurred Lines,” Busch says, she thought it was so close to “Got To Give It Up”—which features her vocals—she assumed it was licensed and tweeted a thank you for the remake. Discovering this wasn’t the case, the family’s lawyer reached out for a settlement.

“Instead of negotiating with the Gaye family, Robin Thicke and Pharrell’s team had the idea, which I’m sure they now regret, to file a lawsuit against the Gaye family seeking a declaration of noninfringement,” Busch says. “That’s when I became involved.”

To prove their countersuit, Busch hired musicologists who helped him build a strong case for infringement, and who determined that 15 elements of “Got to Give It Up” were contained in “Blurred Lines.”

Then came the pretrial ruling. Because “Got to Give It Up” was created before the amended Copyright Act went into effect in 1978, it fell under the 1909 law, which required written notation in order for elements of a musical composition to have copyright protection. Thus, only compositional elements in the lead sheet—not the recording itself—were protected. And only five of the 15 elements were reflected on the lead sheet.

“That, to me, was absurd because Marvin Gaye created ‘Got to Give It Up’ in studio,” Busch says. “The recording and composition are the same. Somebody comes along after the fact and sketches out the lead sheet, just to get the composition on file with the copyright office and that becomes the composition. The ruling thus effectively disenfranchises Marvin Gaye as the author. … So our case got completely annihilated from 15 elements down to five. Furthermore, the court ruled that I could not even play ‘Got to Give It Up’ to the jury because to do so would expose the jury to compositional elements of ‘Got to Give It Up’ that the judge ruled were not reflected in the lead sheet.”

Busch explained all this to Jan Gaye, along with the warning about attorney’s fees, and asked if she wanted to settle. She said she needed to talk to Marvin’s daughter Nona. He figured they’d call him back in a few hours.

Three minutes later, his phone rang. It was Jan. They would not settle. “She said ‘I believe in you, and I know you will win this case for us, Richard,’” Busch remembers.

“I was like ‘Oh shit.’ I hung up the phone and I stood there for a second and I didn’t go back to the war room. I went to my hotel room, shut off all the lights and said to myself: ‘I’m going to figure out not how I might win this case, but how I will win this case. And I’m not going to come out until I do.’”

He sat there for hours.

In the end, Busch decided he would make the case about credibility. Before the dispute, Robin Thicke gave interviews in which he said he told Pharell to create a song like “Got to Give It Up”; after several conflicting depositions, he denied that such a thing ever happened.

“Sometimes it doesn’t matter who is right or who is wrong,” Busch says. “Ultimately it matters who the jury believes, and if you can show the jury that someone has not told the truth, juries don’t like that. And so, what I decided to do was, I needed to get every inconsistent statement and just throw it at the jury in my opening. I put together every video, every admission, every statement and I juxtaposed it against their deposition testimony. I played them back-to-back. And then I used snippets of ‘Got to Give It Up’ that were still in the case against the ‘Blurred Lines’ portions that were copied. I wanted this case to be over when my opening statement was over. By that time, I wanted the jury to to believe that Robin and Pharrell don’t tell the truth.”

That was no small feat considering the popularity of the hit song—not to mention the popularity of Pharrell, who’d been on the Today show to proclaim his innocence. “Nobody thought we were going to win,” says Busch, adding his own partners told him to settle.

But Busch was confident. “I have a telltale sign of whether I’m winning in a jury trial. If the jury is laughing at my jokes, then I’m winning. If the jury is stone-faced when the other side tries to tell a joke, they’re not winning.”

In the end, the jury awarded the Gaye family $7.4 million.

Some in the music industry have criticized the verdict as opening the door to unfair infringement accusations. “They tried to say, ‘This is going to ruin music! No one is going to be able to create music anymore! There’s going to be all these infringement claims coming down!’” Busch says.

“None of that happened because this was a unique set of facts,” he adds. “I don’t think there’s been one lawsuit that has come out that has been similar to the ‘Blurred Lines’ case. Other people who have brought lawsuits have lost. If there was any impact, it was positive because after ‘Blurred Lines’ there were situations where [the artists] said, ‘Maybe it is pretty close, maybe I did hear the original song and maybe it was in my mind,’ and they worked out a settlement.

“So if there was any impact, people were more reasonable in trying to settle.”

Busch only got into the music business because of a taxi ride on a snowy day in 1999.

It was Busch’s last day in New York City after five years on a 600-defendant racketeering case, which settled, and he offered to share a cab with a stranger. The stranger turned out to be married to the copyright administrator for Bridgeport Music and Westbound Records, which owned the music of artists like George Clinton, Parliament Funkadelic and Ohio Players. A few months later, over dinner, she told Busch how the entire rap industry had been sampling their music.

“They’d identified 500 songs they believed sampled their songs without a license,” he says. “They wanted to file a massive lawsuit against the rap music industry.”
At the time, he knew nothing of copyright or music law, but he went to Detroit to meet the label’s owner and was hired to lead the litigation.

“We filed what is now the most famous copyright infringement litigation probably ever—500 cases,” Busch says. “We settled about 90 percent of them. We won all the cases we tried, and I made law that you can’t sample a master, even a second of it. The law we made in those cases is still taught in law school today”

Busch went on to represent Eminem’s producers, F.B.T. Productions, in litigation that went to the U.S. Court of Appeals and established that artists should be paid more for downloads. And it was FBT’s transactional lawyer who connected Busch to the Gaye family.

“The rest is history,” he says.

Since the “Blurred Lines” case, Busch has taken on major copyright infringement cases against Spotify, arguing that it streams music without the necessary license or payment. In a similar case against Pandora, he represents the estates of Robin Williams and George Carlin, among other comedians.

For Busch, the case was life-changing.

“My father drove a taxi. He passed away when I was 10 years old, and my mom and I didn’t have much,” he says. “Just to be able to meet the people I’ve met, it’s been beyond anything I could have dreamed.”