In the News
Digital Music News Talks to Richard Busch on the Recent Passing of the Music Modernization Act and Acquisition of Loudr
Partner Richard Busch was quoted in the Digital Music News article “Spotify Is About to Receive a Giant Gift from Congress. Which Might Explain Their Latest Acquisition,” discussing the recent passing of the Music Modernization Act, which closes the door to all litigation against Spotify related to unpaid mechanical licenses. This equates to billions of dollars in damages, money that publishers will not be able to sue Spotify to recover.
“This is all pretty ridiculous. If not outright unconstitutional,” said Busch. “The reason is that an infringement liability is based upon the date when the infraction occurred, not the date that a plaintiff ultimately litigates.”
On the heels of the passing of the Music Modernization Act, Spotify purchased Loudr, a company that specializes in obtaining mechanical licensing that links songs to songwriters, calculates royalties and power publishing payments. Some say that the timing is perfect: The Music Modernization Act calls for a brand new collective to manage mechanical rights payments, and distribute them.
Richard Busch’s Copyright Infringement Lawsuit Against Sony Music & Artist James Arthur Widely Publicized
As published in Billboard, The Tennessean, The Guardian, MSN and numerous other news outlets, Partner Richard Busch filed a copyright infringement lawsuit against British singer/songwriter James Arthur and Sony Music. The lawsuit was filed on behalf of The Script rock band and multiple songwriters of the original hit song “The Man Who Can’t Be Moved” alleging Arthur and his co-writers deliberately copied and exploited the infringing song “Say You Won’t Let Go.” Additional defendants named in the lawsuit include: Neil Ormandy, Steve Solomon, Sony/ATV UK, Sony/ATV, Ultra, Third & Verse and Kobalt.
“Upon the release of ‘Say You Won’t Let Go,’ members of The Script immediately recognized their own work. It’s apparent after Mr. Arthur saw the success of The Script’s song, he chose to benefit from their creativity,” said Busch, who recently represented the estate of Marvin Gaye in the landmark “Blurred Lines” lawsuit. “It’s widely known that Mr. Arthur was dropped by his record label for public controversies, which caused a break in his career. It wasn’t until the release of ‘Say You Won’t Let Go’ that he achieved worldwide success. Not only has the infringing song been a huge musical success for Mr. Arthur and the other defendants, but it has resulted in label profits, touring revenue, artist royalty and publishing revenue totaling more than $20 million. These opportunities would not have been available to the defendants if they had not infringed upon The Script’s original work.”
Variety, The Hollywood Reporter, Billboard & The Tennessean Report on Richard Busch’s Defamation Lawsuit Against Daily Mail
As published in Variety, The Hollywood Reporter, Billboard, The Tennessean and many others, Partner Richard Busch filed a lawsuit on behalf of The Pussycat Dolls and owner Robin Antin against the Daily Mail Corporation for intentionally publishing false statements about the world-renowned recording group in two defamatory articles following on the heels of the group’s anticipated reunion. The complaint alleges that the Daily Mail republished and commented on untrue statements from disgruntled former backup singer Kaya Jones, insinuating that every member of The Pussycat Dolls was victimized, prostituted and/or drugged, and that Antin was somehow responsible for such treatment.
“It’s clear Ms. Jones was an unreliable and biased source simply looking for her 15 minutes of fame, and the Daily Mail could have taken their pick of dozens of sources to contact to see if there was an inkling of truth to the statements, but did not do so,” said Busch. “Instead, for pure sensationalism and to grab salacious headlines to sell their product, and without considering what it meant for The Pussycat Dolls, their business or their reputation, the Daily Mail published these defamatory statements with a reckless disregard for the truth. Daily Mail’s conduct was malicious and it should be held responsible for the enormous damage The Pussycat Dolls and Robin have suffered as a direct result.”
Beyond ‘Blurred Lines’: How Forensic Musicology Is Altering Pop’s Future – Richard Busch Featured in Rolling Stone Article
Partner Richard Busch was featured in the Rolling Stone article “Beyond ‘Blurred Lines’: How Forensic Musicology Is Altering Pop’s Future,” discussing how the “Blurred Lines” verdict will alter the music industry.
The Ninth Circuit Court of Appeals decision to uphold the “Blurred Lines” verdict has many industry experts believing the jury chose to award damages based on secondary similarities between the two tracks rather than lyrics, melody and other elements more commonly considered protectable under copyright law.
Busch notes that the verdict and the Ninth Circuit Court of Appeals decision are consistent with prior infringement cases, such as the 1994 suit in which The Isley Brothers successfully sued Michael Bolton for copying their song “Love Is a Wonderful Thing.”
"When that case came down, the same hue and cry came from the defense side, which was that this is going to open the door to all types of copyright infringement cases going forward," said Busch. "It didn't happen.”
Forbes, Tennessean, Reuters and Associated Press Discuss ‘Blurred Lines’ 9th Circuit Court of Appeals Ruling
As published in Forbes, Tennessean, Reuters and the Associated Press, the 9th Circuit Court of Appeals has ruled in favor of the estate of Marvin Gaye, upholding a $5.3 million judgement against Robin Thicke and Pharrell Williams for copying Gaye’s song “Got to Give It Up.” Partner Richard Busch represented two of Gaye’s children in the lawsuit, which has prompted debate over the line between plagiarism and honoring works of other artists.
"The jury’s decision, affirmed by the 9th Circuit today, not only protects songwriters’ works from being unlawfully copied without payment or credit, but encourages today’s writers to create original work that does not take advantage of the success of others while pawning it off as their own,” said Busch.
Congress is Making Headway on a Bill to Modernize How Musicians Are Paid – Richard Busch Featured in Pitchfork Article
Partner Richard Busch was featured in the Pitchfork article “Congress is Making Headway on a Bill to Modernize How Musicians Are Paid,” discussing the Music Modernization Act (MMA) and why it could be unconstitutional.
Under the MMA, streaming services would be protected from lawsuits over mechanical royalties and licenses for music streamed before January 1, 2018. According to Busch, blocking lawsuits over infringement that may have already occurred could be unconstitutional.
Nashville Post Names Richard Busch to 2018 In Charge – Legal List
Partner Richard Busch was named to Nashville Post’s 2018 In Charge – Legal list for his representation of the family of Marvin Gaye against Pharrell Williams and Robin Thicke in the “Blurred Lines” case. The family of Marvin Gaye alleged that Williams and Thicke infringed upon Gaye’s hit song, “Got to Give it Up” in their smash hit, “Blurred Lines.” On March 21, 2018, the 9th Circuit affirmed the Gaye’s claims.
Nashville Post’s 2018 In Charge – Legal list recognizes the lawyers, judges, managers and others who have made an impact in Middle Tennessee’s legal sector.
Billboard Features Richard Busch’s Lawsuit Against Bishop Briggs
As published in Billboard, Partner Richard Busch is representing George Robertson, Mark Jackson and Ian Scott in a breach of contract lawsuit against recording artist Bishop Briggs. The singer’s former manager and producers are claiming Briggs used their good standing and experience in the music industry to her benefit before terminating their partnerships just as her career was taking off.
A production agreement under the plaintiffs’ jointly owned company, Teleport Records, and Briggs was drafted and signed in early 2016, and three months later a deal was signed with Universal Music Group’s Island Records.
On February 20th, the plaintiffs received two letters from Briggs’ attorney purporting to terminate both the production and management agreements. “Despite Plaintiff’s tireless efforts on her behalf, Defendant Briggs has chosen to breach her agreement with Plaintiffs, renege on all assertions made to Plaintiffs, and reap the benefits of Plaintiffs’ actions by unceremoniously dismissing those who helped make her a star and build her career,” the complaint states.
Robertson, Jackson and Scott are seeking a trial by jury in hopes of receiving compensatory damages, punitive damages and restitution for the alleged unjust wrongdoing of amounts to be determined.
Digital Music News Quotes Richard Busch on the Three Major Problems with the Music Modernization Act
Partner Richard Busch was quoted in the Digital Music News article “3 Major Problems with the Music Modernization Act,” discussing the proposed legislation aimed to insulate Spotify and other Digital Service Providers from liability for statutory damages and attorneys’ fees for any lawsuit filed after January 1, 2018. Busch, a vehement objector to the MMA, previously authored an article for Digital Music News on the topic.
“Limiting damages retroactively if a lawsuit has not yet been filed may very well be unconstitutional,” said Busch. “It also seems patently unfair to basically retroactively absolve Spotify of infringement damages, and willful infringement at that, just because a victim has not yet filed a lawsuit.”
Music Modernization Act is Certainly Not Fair for Everyone – Richard Busch Authors Tennessean Article
The U.S. House of Representatives recently proposed legislation to assist with the payment of streaming royalties to songwriters and publishers. Titled the Music Modernization Act (MMA), the bill aims to insulate Spotify and other Digital Service Providers (DSPs) from liability for statutory damages and attorneys’ fees for any lawsuit filed after January 1, 2018. In his Tennessean article “Music Modernization Act is Certainly Not Fair for Everyone,” Partner Richard Busch discusses several issues with the Music Modernization Act, and the dangerous implications of the proposed legislation if it were to be enacted.
“With essentially no notice, songwriters and publishers whose songs had been allegedly infringed by Spotify for years would essentially lose a key weapon in any lawsuit filed if they had not filed as of Jan. 1, 2018, even though the bill had not been enacted and will not be enacted, if it ever is, until sometime later in 2018,” wrote Busch.
According to Busch, the bill preys on the independent songwriter and publisher, leaving their work available for Spotify and other DSP’s to use. The legislation requires that all musical compositions be registered with a “Mechanical Licensing Collective” in order to be paid mechanical royalties; entities that will be stocked with representatives of major music publishers – the National Music Publishers’ Association (NMPA) – and NMPA members will get to split the unclaimed money of the independent songwriters based on market share.
Richard Busch Authors Intellectual Property Magazine Article Discussing Lawsuits Against Streaming Giant Spotify for Copyright Infringement
Partner Richard Busch authored the Intellectual Property magazine article “Wixen Music Publishing, Inc. v. Spotify USA Inc.; Bluewater Music Services Corporation v. Spotify USA Inc.,” discussing the lawsuits filed against streaming giant Spotify for the copyright infringement of more than 2,500 songs on behalf of legendary recording artists Bob Gaudio, Frankie Valli and the Four Seasons, Tom Petty, Blake Shelton and Miranda Lambert, amongst many others.
In its Motion for a More Definite Statement, Spotify attempted to equate public performance licenses with mechanical licenses and floated the idea that perhaps they were not required, as an interactive service, to obtain either a compulsory license or a direct license with the publisher to reproduce and distribute the compositions on Spotify. Spotify, however, has made numerous public admissions that, individually and collectively, completely undermine this litigation inspired argument.
“Spotify has expressly, and repeatedly, acknowledged that Spotify, an interactive streaming service, must secure rights to reproduce and distribute the musical works embodied in its sound recordings, or else face the “crushing statutory damages” available under the United States Copyright Act,” wrote Busch. “In Spotify’s own words, ‘[t]o operate the Spotify Service, Spotify needs to secure multiple rights from multiple copyright owners. These rights include, among others, the right to reproduce sound recordings and the musical works embodied therein, the right to distribute sound recordings and the musical works embodied therein, and the right to publicly perform sound recordings and the musical works embodied therein by means of digital audio transmissions.’”
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The Thicke of It – Richard Busch Authors Intellectual Property Magazine Article
Partner Richard Busch authored the Intellectual Property magazine article “The Thicke of It,” discussing the Blurred Lines and Got to Give it Up copyright infringement lawsuit, the subsequent appeal and why the case has captivated the world of entertainment.
Busch states that the case was the perfect storm: artists Pharrell Williams and Robin Thicke were at the height of their careers; Blurred Lines was a mega international hit song with a controversial music video; and the alleged copying of the most iconic and beloved R&B artist of all time, Marvin Gaye. All these factors generated immediate buzz from the beginning.
Adding to the controversy was the fact that while Williams, Thicke and Universal Music denied the claims, internal documents stated otherwise.
“While the other side proclaimed that the song copied only the music from a genre, or an era, and did not actually copy Got To, the Gaye Family not only presented musicological evidence to the contrary, but internal emails from within Universal Music (the Blurred Lines record label), that were inconsistent with that position,” wrote Busch. “Universal had acquired the Motown sound recordings years earlier, and therefore owns the sound recording of Got To. When Blurred Lines was released, a senior executive from Universal suggested that Universal link the two together for purposes of trying to sell the songs because Blurred Lines was ‘utterly based on’ Got To and ‘sampled/copied’ Got To.”
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Digital Music News Talks to Richard Busch on the Music Modernization Act
Partner Richard Busch was quoted in the Digital Music News article “Indie Songwriters Feeling Left Out as the ‘Music Modernization Act’ Moves to the Senate,” discussing the Music Modernization Act and why it could potentially be unconstitutional.
The Act is supposed to be a new, simple structure for paying publishing royalties and tracking rights owners, without the legal fees, class actions and bad press. According to Busch, the bill is unfair and potentially unconstitutional. “Limiting damages retroactively if a lawsuit has not been filed may very well be unconstitutional,” said Busch. “It also seems patently unfair to basically retroactively absolve Spotify of infringement damages, and willful infringement at that, just because a victim has not yet filed a lawsuit.”
Managing Intellectual Property Interviews Richard Busch on the Latest Spotify Lawsuit and the Future of the Music Modernization Act
Managing Intellectual Property turned to Partner Richard Busch to discuss Wixen Music Publishing’s $1.6 billion lawsuit against Spotify and the proposed legislation to streaming music, the Music Modernization Act.
According to Busch, Wixen’s lawsuit brings forth the same allegations as his two previous lawsuits against Spotify – that Spotify failed to properly license the compositions that appear on their service and pay royalties to the artists who composed them. Busch accuses Spotify of willful infringement and notes that willful infringement is why statutory damages exist.
“The major record labels own about 20% of Spotify,” said Busch. “They own the major music publishing companies, so they have no incentive to hold Spotify responsible for their infringement. The major publishers, owned by the major record labels, make up about 80% of the National Music Publishers’ Association (NMPA). They want Spotify to be as successful as possible to they can do an IPO and they can all makes millions of dollars.”
Busch also discusses the recently introduced Music Modernization Act, which would make victims of copyright infringement ineligible for statutory damages for all complaints brought since January 2018. According to Busch, the Act is potentially unconstitutional. “The Act strips songwriters and publishers who file in the future of a major remedy to copyright infringement,” said Busch. He notes that the Act is likely to pass but sees a conflict of interest.
I’m One of the Attorneys Suing Spotify. And Here’s Why the ‘Music Modernization Act’ Makes Little Sense – Richard Busch Authors Digital Music News Article
Partner Richard Busch authored an article in Digital Music News discussing the copyright infringement lawsuits filed against Spotify by numerous artists, songwriters and music publishers, and the proposed legislation intended to eliminate the ability to hold Spotify liable for statutory damages for copyright infringement. However, as Busch details in the article, “I’m One of the Attorneys Suing Spotify. And Here’s Why the ‘Music Modernization Act’ Makes Little Sense,” there are numerous problems with this Bill.
“It is well established that a copyright infringement cause of action is a property right that vests at the time of the infringement — whether a lawsuit has been filed or not,” wrote Busch. “Limiting damages retroactively if a lawsuit has not yet been filed may very well be unconstitutional. It also seems patently unfair to basically retroactively absolve Spotify of infringement damages, and willful infringement at that, just because a victim has not yet filed a lawsuit.”
Busch also explains that the new legislation being introduced is a solution in search of a problem. The Music Modernization Act is being lobbied for and pushed to funnel power and money into the hands of a small constituency of dominating music entities (i.e. Sony, Warner, Universal, NMPA, etc.).
An Important Evidentiary Issue in The ‘Blurred Lines’ Appeal – Richard Busch Authors Law360 Article
Partner Richard Busch authored the Law360 article “An Important Evidentiary Issue In The ‘Blurred Lines’ Appeal,” discussing the important facts of the Blurred Lines appeal and why the statements made by Robin Thicke, Pharrell Williams and label executives provided evidence of similarities between the two songs.
“While the Williams team proclaimed that the song copied only the music of a genre, or an era, and did not actually copy ‘Got To,’ the Gaye family presented powerful musicological evidence to the contrary discussed above, along with internal emails from a senior executive within Universal Music (the "Blurred Lines" record label), that were inconsistent with that position,” wrote Busch. “Universal had acquired the Motown sound recordings years earlier, and therefore owns the sound recording of ‘Got To.’ When ‘Blurred’ was released, a senior executive from Universal suggested that Universal somehow package the two for purposes of trying to sell the songs because ‘Blurred’ was ‘utterly based on’ and ‘sampled/copied’ Gaye's song.”
Busch also explained that the jury’s verdict in favor of the Gaye family and the district court’s decision sustaining that verdict is not historically groundbreaking. As mentioned, with one notable exception, the ruling remains a rather simple copyright infringement case, decided upon and in conformity with Ninth Circuit precedent and legal standards.
The Hollywood Reporter, Billboard, Fast Company and The Tennessean Report on Richard Busch’s Third Lawsuit Filed Against Spotify
As published in The Hollywood Reporter, Billboard, Fast Company, The Tennessean and others, Partner Richard Busch has filed a third lawsuit against Spotify, alleging copyright infringement on behalf of seven independent music publishers. The complaint alleges that Spotify had been using their songs without the necessary licenses, ramping up the legal battle with the streaming giant.
Busch emphasizes that Spotify is an interactive service even by its own admission. Under copyright law, that has special significance. "It is telling, and clearly intentional, that Spotify only cites authority relating to Pandora, Sirius XM Radio, and other non-interactive services, rather than interactive services such as Spotify," said Busch. "Numerous courts and other sources have specifically noted the distinction between Spotify’s interactive streaming service and other non-interactive services. ... While Pandora (or the other non-interactive services cited by Spotify in its Motion) may be able to get by on public performance licenses alone, the same cannot be said of Spotify and its interactive streaming service. Once this distinction is taken into account, one need not look further than the very case law cited by Defendant to realize where Defendant’s argument falls apart."
ABC Australia Interviews Richard Busch on Ed Sheeran, Tim McGraw and Faith Hill Copyright Infringement Lawsuit
Partner Richard Busch was interviewed by ABC Australia discussing his latest copyright infringement lawsuit against country superstars Tim McGraw and Faith Hill, as well as pop singer Ed Sheeran, for allegedly copying the song “The Rest of Our Life” from two Australian songwriters, Sean Carey and Beau Golden. The song was originally written by Carey and Golden for Australian country star Jasmine Rae.
“We don't take lightly the filing of a lawsuit against anyone,” said Busch. “Anyone we say who listens to it will be able to hear right away that the song, as we allege, is a complete copy.”
The lawsuit claims that “the copying is, in many instances, verbatim, note-for-note copying of original elements of the Song, and is obvious to the ordinary observer.” Carey and Golden are seeking $5 million in damages, as well as an injunction against the song, blocking its use.
Billboard Interviews Richard Busch on Being the Music Industry’s Most Feared Lawyer
As published in the Billboard article “On Eve of ‘Blurred Lines’ Appeal Hearing, Richard Busch is the Music Industry’s Most Feared Lawyer,” Partner Richard Busch discusses the “Blurred Lines” appeal and the case against streaming giant Spotify. Busch represents two of Marvin Gaye’s children in the “Blurred Lines” lawsuit against Pharrell Williams and Robin Thicke for infringing on Marvin Gaye's "Got to Give It Up" to create "Blurred Lines." The 9th Circuit decision could set a landmark precedent on the line between originality and infringement in musical compositions.
“I disagree with people who say this case is an outlier,” Busch said. “This is a strong case involving compositional elements and the fundamentals of what makes a strong infringement case. I can’t tell you how many people have come to me saying someone copied their song.”
In his lawsuits against Spotify, Busch alleges that the streaming company didn’t pay the proper mechanical royalties on the compositions the publishers owned. Spotify has filed a motion to argue that it doesn’t have to pay mechanical royalties. “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,” Busch added.
Billboard Names Richard Busch to Top Music Lawyers List of 2017
Partner Richard Busch was named to Billboard’s 2017 Top Music Lawyers list for his tireless work protecting artists against copyright infringement issues. Billboard’s Top Music Lawyer list recognizes the best legal minds on the forefront of copyright fights and superstar deals.
Busch, who has been ranked by Billboard in the past, is known for representing the family of Marvin Gaye against Pharrell Williams and Robin Thicke in the “Blurred Lines” case, as well as Martin Harrington and Thomas Leonard, two songwriters who are now credited with writing Ed Sheeran’s hit song “Photograph.” The magazine notes that his work has made him the go-to lawyer for songwriting infringement cases.
"I don’t have partners representing the labels," said Busch. "My clients know that they have my full loyalty."
The Hollywood Reporter, Engadget, Fast Company, The Tennessean and AppleInsider Discuss Partner Richard Busch’s Lawsuits Filed Against Spotify
As published in The Hollywood Reporter, Engadget, Fast Company, The Tennessean, AppleInsider and more, Partner Richard Busch has filed two lawsuits on behalf of Robert Gaudio and Bluewater Music Services for the alleged copyright infringement of their songs by online music streaming service Spotify.
Gaudio, best known as the publisher and songwriter for the band Frankie Valli and the Four Seasons, and Bluewater Music Services, which manages the streaming rights of artists, such as Miranda Lambert and Blake Shelton, allege that their compositions are being streamed on Spotify without proper licensing. Together, the suits involve a few thousand song compositions, which could add up to damages in the hundreds of millions of dollars.
"As we say in the Complaint, songwriters and publishers should not have to work this hard to get paid, or have their life work properly licensed, and companies should not be allowed to build businesses on the concept of infringe now and ask questions later. We look forward to litigating these cases,” said Busch.
The two lawsuits seek a maximum $150,000 damages award for each infringed work. Bluewater's suit alleges infringement of 2,339 songs, while Gaudio claims 106 songs were posted to Spotify without proper licensing.
“Blurred Lines” Case Widely Publicized as 9th Circuit Hears Appellate Case
On October 6, 2017, the 9th Circuit heard oral arguments in the appeal of the “Blurred Lines” lawsuit, in which Partner Richard Busch represents two of Marvin Gaye's children, Nona Gaye and Frankie Gaye, against Pharrell Williams and Robin Thicke. In 2015, a jury awarded the family $5.3 million in damages plus ongoing royalties. The appeal got the attention of the press and was widely publicized in The Hollywood Reporter, Law.com, Courthouse News, The Recorder, MyNewsLA.com and others.
Since sound recordings weren’t protected under copyright law before the mid-1970s, the Gaye family presented sheet music to prove copyright infringement instead of analysis of the original recording of “Got to Give It Up.” The 9th Circuit’s decision could set a landmark precedent on the line between originality and infringement in musical compositions.
“The trial was fair and the judgment should be affirmed,” said Busch. “But if a sequel is ordered, the Gaye family should be allowed to introduce as evidence the Motown recording of “Got to Give It Up” in order to show the extent of the infringement.”
Rolling Stone, Variety, Billboard, Fox News and The Daily Mail Discuss Richard Busch’s Lawsuit Against Ed Sheeran, Tim McGraw and Faith Hill
As published in Rolling Stone, Variety, Billboard, Fox News, The Daily Mail and several others, Partner Richard Busch is representing Australian songwriters Sean Carey and Beau Golden in a copyright infringement lawsuit against recording superstars Tim McGraw, Faith Hill and Ed Sheeran. The song “The Rest Our Life” is a direct copy of Carey and Golden’s “When I Found You,” the complaint alleges.
“The copying is, in many instances, verbatim, note-for-note copying of original elements of the Song, and is obvious to the ordinary observer,” states the complaint.
Carey and Golden assert that Sony Music Entertainment, the parent label of Arista Nashville, which released McGraw and Hill's first-ever collaborative LP last November, was aware of the copying of their song. "It very well may have been an agent of Sony Music Entertainment who provided the other defendants herein with access to the Song," the complaint states. Carey and Golden are seeking injunctive relief and at least $5 million in actual damages plus profits, in addition to a running royalty and an award of attorney's fees and costs.
Lana Del Rey Probably Didn't Mean to Rip Off 'Creep,' But That Doesn't Matter:
Billboard Turns to Prominent Entertainment Lawyer Richard Busch
In the Billboard article “Lana Del Rey Probably Didn't Mean to Rip Off 'Creep,' But That Doesn't Matter,” reporters turned to Partner Richard Busch to discuss the potential lawsuit that could be brought against Lana Del Rey for the supposed infringement of Radiohead’s “Creep” in her song “Lust for Life.” Radiohead's publishing company, Warner/Chappell, has denied any lawsuit has been filed but confirmed the two artists are in discussions.
"Intent is not an element to prove copyright infringement, and subconscious copying is nonetheless copying that gives rise to liability," said Busch. “While independent creation is an affirmative defense, which if proven by the defendant can be a complete defense, the more access to the infringed work that is shown, and the greater the substantial similarity between the two works, the more difficult — if not impossible — that defense becomes.”
Access is often key to copyright infringement suits, requiring proof that the defendant knew the plaintiff's work. In some cases that unknown acts bring against superstars, that's easy to prove. But in a case such as this, given the success of "Creep," a song so popular Radiohead is known for refusing to perform it, it would be more difficult.
Spotify's Uncertain Road Ahead: Legal Battles, Profit Pressures Loom as It Moves to Go Public – Billboard Interviews Richard Busch
Partner Richard Busch was quoted in the Billboard article, “Spotify's Uncertain Road Ahead: Legal Battles, Profit Pressures Loom as It Moves to Go Public,” discussing the latest copyright infringement lawsuit filed against Spotify by Wixen Publishing and Spotify’s secret IPO filing this past December.
“We are prepared to litigate this to the end,” Busch stated regarding his three lawsuits currently filed against Spotify.
The streaming service’s immediate problem is that the uncertainty created by these cases represents a dark cloud over its IPO, which gives it an incentive to settle. The plaintiffs, on the other hand, are in no hurry, which gives them more leverage. On-demand audio streaming now comprises the majority of audio consumption for the first time in history, capturing a 54 percent share in 2017, according to Nielsen Music.