U.S. Department of Justice Consent Decree Interpretation Shocks American Songwriters


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The United States Department of Justice today, according to published reports, denied every request from American songwriters to ease restrictions found in the ASCAP and BMI consent decrees, World War II-era restrictions imposed by the federal government on the two largest American performing rights societies (PRO’s).

Songwriters wanted the Dept. of Justice to allow more marketplace flexibility when it comes to setting rates with digital music services and has asked DOJ for several specific remedies including allowing music publishers to “partially withdraw” their digital song catalogues from ASCAP and BMI which would have circumvented federal judges from setting streaming rates in favor of direct negotiations, something record labels and artists can already do.
Even worse, DOJ reportedly says that ASCAP and BMI can no longer engage in “fractional” licensing of songs and must begin 100% licensing of songs. “If accurate, this is unimaginable and the worst possible outcome for songwriters. Earlier this year in Washington, D.C., I explained to DOJ that our profession was already decimated and how mandating 100% licensing could put the final nail in our coffin,” said Nashville Songwriters Association (NSAI) President Lee Thomas Miller.  “I am stunned and sickened. DOJ did not take the impact on songwriters into account when issuing this ruling.”
100% licensing means that digital services can now go to only one performing rights society to license co-written songs that a PRO holds any share of without having to secure a license for the other co-written share from the PRO that holds it. “This would create Armageddon in the professional songwriter community.  Since one performing rights society does not hold information on co-writers who are members of other societies, there is no effective way to make sure those co-writers are paid.   Administrative costs will soar and there is a strong likelihood that songwriters may now only write with songwriters from the same performing rights society,” said Bart Herbison, NSAI Executive Director. 
In layman’s terms this would mean some of the world’s greatest songs may never be written.  NSAI Board member, hit songwriter Tim Nichols, told DOJ attorneys as much during a meeting in Washington earlier this year that he wrote the Grammy-winning song “Live Like You Were Dying” for Tim McGraw with co-writer Craig Wiseman.  “We belong to different PRO’s and if 100% licensing had been in effect, I’m not sure we would have written that song,” said Nichols.  “You would really be stepping all over writing relationships that are based on special creative chemistry.”
NSAI is counseling with ASCAP. BMI and other trade associations to determine the next strategic response to the Department of Justice.  Technically both PRO’s must ‘consent’ to the changes but ASCAP and BMI rate court judges The U.S. Copyright Office and members of Congress including Doug Collins (GA) and Hakeem Jeffries (NY) had asked DOJ not to enforce 100% licensing.  The U.S. Copyright Office further said “such an interpretation of the consent decrees that would require these PROs to engage in 100-percent licensing presents a host of legal and policy concerns. Such an approach would seemingly vitiate important principles of copyright law, interfere with creative collaborations among songwriters, negate private contracts, and impermissibly expand the reach of the consent decrees”.

Click to read comments from Bart Herbison on "PRO Licensing of Jointly Owned Works."