Setting the record straight for songwriters

A recent opinion piece by Andrew Langer paints a very distorted picture of one group of hard working Americans’ battle to regain the rights unjustly taken from them by the Department of Justice (DOJ).

The piece, which discusses the lawsuit filed against the DOJ by the legislative advocacy group Songwriters of North America (SONA), sets out a series of what can only be classified as “alternative facts” as they neither reflect the current actions of the SONA, nor the long standing practices of the music industry as a whole.

{mosads}Back in September of 2016, SONA filed their lawsuit against the DOJ following the announcement of a new rule for the consent decrees that govern the two largest U.S. performing rights organizations (PROs) — ASCAP and BMI.

This rule requires that these organizations must now license 100 percent of songs of which they may only control a fractional portion. Although this point hasn’t been an issue in the more than 100 years of the collective licensing of music, it is the DOJ’s position that this was the intent of the consent decrees from the beginning.

As is evidenced by the millions of contracts formed between co-writers of different PRO affiliations, fractional licensing is the way our industry has conducted business for over 75 years.

These contracts state that each party has the right to administer, or control, his or her portion of the co-written song, which includes the right to assign this control over to the PRO of their choice. Because of these contractual rights, anyone wishing to procure a license to a song must gain permission from both parties (or the party’s PRO). This is fractional licensing.

For performing rights, obtaining one license from ASCAP and one license from BMI gives the licensor the right to all music in the ASCAP and BMI repertoires, which make up 90 percent of all the music controlled in the U.S.

Langer’s analysis of the effect of fractional licensing could not be farther from the truth.  

These consent decrees only govern the actions of two organizations, ASCAP and BMI.  Fractional licensing as it relates to the consent decrees therefore does not mean that businesses must negotiate with every individual rightsholder, it simply means that businesses must procure licenses from two organizations, instead of only one — again, exactly as they have been required to do for decades.

This is hardly the alleged shift in negotiating power Langer so vigorously condemns.

SONA’s lawsuit aims to do nothing more than allow the music industry to function exactly as it has been for nearly a century. It in no way has the aim, nor the power, to repeal to the consent decrees outright.

In fact, if the 100 percent licensing mandate is allowed to stand, access to music will likely decrease in the future as songwriters will be incentivized to only write with fellow PRO members. They will gradually be paid less and less as competition for pricing degrades the already meager royalties they receive, leading to the creation of fewer songs as these writers are forced to seek other ways to make a living.

Take for example Avicii’s hit song “Wake Me Up,” written by Tim Bergling, Aloe Blacc‎, and Mike Einziger. This song earned fewer than $12,400 in royalties for being streamed more than 168 million times on Pandora, a service that only has to pay out performance royalties.  

Two of the song’s co-writers belong to ASCAP, while the third belongs to BMI. Under 100 percent licensing, not only may this song have never been written, but businesses would be able to shop the PROs for the lowest rate, further reducing the royalties that must be split between the writers.

Then, the chosen PRO would have to account to a writer for which it has no information or connection.

The piece endeavors to make a standard responsive motion filed by SONA appear to be a political power play, when in reality this calculated move is part of a legal strategy developed long before the newly appointed Attorney General was even considered for the position.

In today’s politically charged climate, it is easy to read between the lines in order to pull some political statement out of every story that comes out, but this is unfair to the songwriters harmed by the DOJ’s decision and is an insult to the judicial process itself.

Our songwriters should be left out of political propaganda.

Dina LaPolt is the owner and founder of LaPolt Law, P.C., a boutique law firm in Los Angeles representing music creators.  Dina has been named to the Hollywood Reporter’s Power Lawyers Top Music Business Attorneys and Billboard’s Top Music Lawyers as well as Variety’s Dealmakers Impact Report and Billboard’s Women in Music.