DOJ Makes Terrible Decision For Songwriters

DOJ Makes Terrible Decision For Songwriters

While you were enjoying your extended holiday weekend, the news of a June 30th US Department Of Justice decision  that Nashville Songwriter’s Association International Executive Director Bart Herbison described as “Armageddon in the professional songwriter community” began filtering down to songwriters. The effects of this decision will play out among all songwriters in the coming months.

Here’s some background to get you up to speed. Some songwriters own their own publishing company. Others assign their song to an existing publisher. (For example, Tim Lovelace recently joined Daywind’s roster of songwriters.) Independent publishing companies and corporately owned publishing companies alike are attached to a performing rights organization (PRO) of their own choosing that makes deals on their behalf with radio, concert promoters, retail established that play canned music, and so forth. The two largest PROs are BMI and ASCAP. SESAC is another one.

About two years ago, BMI and ASCAP jointly appealed to the US Department of Justice to modernize existing business practices that affect the way they go about handling licensing. Many of the current standards date back as far as the early 20th century.  The DOJ ultimately responded last week on June 30th by denying all their appeals. Furthermore, the DOJ said that in the future, they plan to enforce “100% consent licensing.”

In a nutshell, “100% consent licensing” means a music service (radio, etc.) can go to any PRO that owns a PIECE of a song to secure the ENTIRE license for use on their service.

Since BMI and ASCAP license songs differently, this means the Pandoras and Spotifys of the world could shop both services for the best deal whenever representation is shared. For example, ASCAP might represent 5% of a song and BMI might represent the other 95%. If ASCAP’s fee is less, they can take that deal.

This promises to be a logistical issue for PROs. Collecting money and forwarding it to publishers they might not even have proper information on is an administrative nightmare.

More fundamental, though, is the fact that songwriters and publishers don’t typically just pick a name out of a hat when they’re deciding whether to affiliate with a PRO. Up until now, it was a songwriter’s right to select which organization would represent their songs. BMI didn’t make those decisions for ASCAP; ASCAP didn’t make those decisions for SESAC; and so on. Now, the only way a songwriter can be 100% sure the only PRO representing their music is the one they choose is to NEVER co-write another song. This is where this decision by the Department of Justice affects consumers. The sad part is that in the future, we’ll never be able to look back and quantify the extent to which it did affect us.

Consider “A Good Heart” recorded by Ernie Haase & Signature Sound on their 2008 Dream On CD. Ernie Haase, Sue C. Smith, and Joel Lindsey co-wrote “A Good Heart.”  The Haase and Lindsey portion of that song is assigned to BMI, while the Smith portion is assigned to ASCAP. Going forward, a song like that might never be written. Multiply that by thousands upon thousands of songs that may never be written, because two creative types have reason now to avoid writing with each other.

It’s a glorious mess.

I’m all for simplifying the process of licensing, but permitting one agency to represent 100% of a song they don’t fully own and forcing the second agency to accept whatever terms the first agency negotiates is going too far. Opponents of this decision by the DOJ are saying songwriters are likely to only co-write with songwriters who are with the same PRO going forward, but they’re forgetting that songwriters can switch PROs later. , throwing all their co-written songs into the same situation.

Meanwhile, artists who record cover songs still have to go through an ancient process of contacting each publisher individually. For example, if a CD includes 12 songs that have been published previously, and each song has two songwriters, that’s as many as 24 publishers they may need to contact for a license before they can legally sell their CD. It would be nice if the DOJ would allow BMI, ASCAP, etc. to make direct mechanical licensing deals with artists. That’s a simplification we could all support.

Instead, the DOJ, in their typical bureaucratic government fashion, “fixed” a problem that wasn’t broken in the first place, leaving a problem that needed to be fixed unchanged.

David Bruce Murray

David Bruce Murray is a church music director in Ellenboro, NC. He is the author of Murray's Encyclopedia Of Southern Gospel Music and the owner of both SGHistory.com and MusicScribe.com. David plays piano for Southern Sounds Quartet and the Foothills Community Choir.

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