Where is the "Justice" in the DoJ?
Whether you’re a working songwriting, an aspiring songwriting, a wanna be, a hopeful or a Grammy winner, last week’s Department of Justice Anti-Trust division’s disturbing ruling applies to and will affect us all.
This isn’t the funnest blog. I much prefer writing about my musings during a week in Nashville or a writing camp in France. Believe me. But this very unsexy stuff needs to be aired.
For those of you who didn’t get the shocking memo, here’s what happened: For the last two years, publishers and songwriters have been passionately lobbying the DoJ to amend the 75-year-old consent decrees which prohibit creators from participating in a free market and earning fair market value for their work—especially where digital rights are concerned. Publishers have requested that they at least be able to withdraw digital blanket licenses from PROs (ASCAP & BMI) so they can set their own rates. Well, not only did the DoJ deny these requests they added insult to injury and made matters even worse:
They ruled in favor of something called “100 percent licensing” which means any rightsholder who is represented by a different PRO than his co-writer(s), has the right to license an entire song to a licensee on behalf of all involved as opposed to “fractionalized licensing” in which each writer’s PRO licenses their portion of the song on their behalf. This has been the effective, efficient and peaceful way the music licensing system has functioned for years.
There are many problems with this change, the main one being that it will likely lead to even lower royalty rates for songwriters as now music services can rate shop.
Michelle Lewis, fierce and passionate leader of SONA (Songwriters of North America), an advocacy group to which I belong here in LA, made a further and more disheartening revelation in the New York Times: “It could also mean that musicians would be forced to change their writing habits based on the professional affiliations of their collaborators…You write with who you have chemistry with; their choice of PRO should not figure into it…But if we have to deal with this administrative nightmare we are not going to collaborate. I don’t think the DoJ really understood this.”
Where is the justice in DoJ? They did not fix what was broken and they broke what didn’t need fixing.
Admittedly, publishers don’t always see eye to eye with songwriters…who don’t always see eye to eye wth PROs. But no faction of the music licensing marketplace (PROs, licensees, music publishers, songwriters) was for 100 percent licensing. The US Copyright Office didn’t think it was a good idea either. So why? Well, here’s a theory:
At the heart of these decisions is Principle Deputy Assistant Attorney General Renata B. Hesse, former attorney for Google, a Tech Giant which stood to benefit from these unfavorable rulings as they will no longer have to negotiate for the music that they use—and they use ALOT of music. A curious conflict of interest to say the least. David Lowery, musician and founder of the Trichordist, explains in much further detail, why Ms. Hesse should have recused herself from the decision.
I wish we had a union to help us fight this war. (And it is war.) Songwriters are considered their own boss so we are not able to unionize. Maybe we can find a loophole in that ruling, something my songwriter friend Terry Sawchuck is looking into. Regardless, we need to get even busier bringing to light the inequities of the system. And it can’t just be some of us while others are writing yet another song. :(
Not to get all judgy, but often we at (SONA) invite a member of the songwriting community to a meeting but they can’t make it because “they have a session.” That’s cool—once in a while. I have sessions too, and dentist appointments, and lunch dates. I get it. We all have lives. But because there’s so much more strength in higher numbers, if we don’t all rise up it might not be so easy to continue writing songs—even for those of us who are lucky enough to be in the 2% at the moment, still making a killing from hits on terrestrial radio…because terrestrial radio is going away and we’re all going to be living on dwindling streaming income.
My composer husband Adam Gorgoni, suggests this: “The Justice Department’s position is transparently untenable. Indefensible really as their weak arguments show. If we can't win this fight, we aren't going to win any. I'm not sure how or where we take it but...ALL the creator groups agree on this issue, whatever other differences there may be…I can't help wondering if this may be the moment for the songwriting community to try to make a stand as a united front.”
So, you could…
Write a letter to Michael E. Horowitz The Inspector General of the Department of Justice and ask him why Ms. Hesse was overseeing a case in which her previous (and very powerful) client stood to gain.
Organize your own local SONA. Call it whatever you want. Or get informed and stay connected by signing up for our newsletter so that we can let you know when and where your efforts are needed.
Do something.
Skip a session.
It won’t kill you.
Thank you.
But really, thank yourselves.
Thank you, as always, for reading. Please follow me on Facebook.Instagram. Twitter. Have a look at my book, Confessions Of A Serial Songwriter.