DOJ Ruling Spells Disaster for American Songwriters
The United States Department of Justice changed their stance on consent decrees for the worse, further damaging songwriters’ abilities to control their works – a topic that songwriters have avidly been fighting for since online streaming gained popularity just a few years ago. Before the ruling, performance rights organizations (PRO’s), mainly BMI and ASCAP, were able to partially license works based on the co-writer’s affiliations with each PRO. Essentially, if two songwriters co-write a song but each writer belongs to a separate PRO, each PRO affiliated can partially license the song. Songwriters had been working with organizations such as NSAI (National Songwriters Association International) to fight for more right, but the new DOJ ruling commands that only one PRO can license the entire the song, instead of a percentage. Since PROs only have information on the artists they are specifically affiliated with, this means that there is no way to ensure that artists affiliated with a PRO other than the one receiving the entire license will get properly paid – if paid at all. This creates a mess both on behalf of the PROs attempting to distribute the money they receive through licensing to other PROs and on songwriters who can’t guarantee how they will receive their royalties from unaffiliated PROs. This ruling deters songwriters from co-writing with writers affiliated with different PROs, leading to less co-writes. Since many hit songs are created through co-writing, this will stunt the amount of written songs released by songwriters and hinders the creativity allowed through increased variety of co-writers.
This isn’t the only crushing blow against songwriters. One of the biggest enemies to the writers, online music streaming, won another battle. Songwriters have been campaigning for years for the ability to have more control of their music on online streaming services, such as being able to set their own royalties and the ability to decide whether to place their music on these streaming services and the ability to remove them from the services. However, the DOJ ruled for the exact opposite; songwriters now do not have the right to withdraw their music from streaming services. Even worse, this takes away their ability to negotiate prices with streaming services such as Apple Music, Spotify, and Tidal, since they no longer can threaten to remove their music if not paid enough. Songwriters have been making headlines for years about the extremely low payouts of online streaming services – remember when Taylor Swift removed her entire catalog from Spotify? Smaller artists rely on these streaming services to gain attention and a fan-base, but suffer from the lack of dismal royalties earned through the services.
Many professionals in the industry have raised their voices through interviews and press releases to speak out against the court rulings. Lee Thomas Miller, president of NSAI, recently spoke in a press release regarding the court’s decision: “If accurate, this is unimaginable and the worst possible outcome for songwriters.” Bart Herbison echoes Miller’s thoughts by saying, “Administrative costs will soar and there is a strong likelihood that songwriters may now only write with songwriters from the same performing rights society.” To finalize the decision, both PROs ASCAP and BMI must agree to 100% licensing. However, since they previously warned the DOJ against enforcing complete licensing in consent decrees, there is a possibility that the PROs may not agree to the court’s decision. Either way, this devastating decision leaves the future of songwriting in a very shaky state.