The Lowdown on the DOJ Decision Regarding Songwriters Rights
The DOJ just dropped an atom bomb on songwriters rights and the publishing industry. Surprisingly, I’ve noted a lack of outrage on the part of many songwriters, and I think I see why. Several songwriters have since messaged me wanting me to break this down in terms of what it means for them. Rest assured, this DOES affect your livelihood and WILL affect the industry in catastrophic ways. I’m going to cut through the mystery and legalese and lay things out as simply as I can.
- The Rules Haven’t Changed For 75 Years
The laws for how songwriters get paid and how contracts are negotiated have been the same since the 40’s. This was fine until about 2000 or so, when a thing called the internet came along. Now with downloads, streaming services, and online radio stations, the pay for songwriters doesn’t even rise to the somewhat paltry level they get from traditional means. To illustrate my point, Pharell’s “Happy” (a massive hit just a couple years ago) got 43 MILLION streams on Pandora. The song received just $2,700 (I am not omitting a zero, you’re reading that correctly) in Songwriter’s royalties and Publishing COMBINED. And that was for a huge hit. The writers behind lesser songs may not even be able to go to Starbucks with their earnings. And that’s not just a shame – it’s patently and grossly unfair.
2. Performing Rights Organizations Fought To Change the Rules
ASCAP, BMI, SESAC, NSAI, and a host of other songwriters advocacy groups petitioned the Department of Justice to allow more flexibility in letting songwriters set rates for digital media. These PROs have been going back and forth with the DOJ for 2 years trying to hash out a plan. The DOJ not only refused the changes, but refused to work with them whatsoever – leaving the same system in place that has been robbing songwriters for 16 years.
3. But It Gets Worse
While keeping the old system in place is bad, it allows everything to operate more or less the same. But the DOJ didn’t just stop there. PROs must now license 100% of each song – no splitting administration. Here’s what that means: if I’m with ASCAP and my co-writer is with BMI, each PRO divides the administrative rights and acts on behalf of their individual songwriter.
This ruling throws that system – which has been working for decades – completely out the window. In practical terms, this means writers may not be able to write outside of their particular PROs. Writers with BMI will have to write with other writers who are also with BMI, for instance. I have many colleagues in the industry scattered among the various rights organizations. Now, writing with them may not only be a logistical (and legal) nightmare – it may prove downright impossible. I can’t imagine how many hit songwriting teams this may devastate.
This also enables the digital media services to effectively “rate shop” among the different performing rights organizations. This is ludicrous when they are already paying a fraction of a penny per play and raking in millions in profit. Now they stand to make even more – and on the backs of struggling songwriters.
4. It Gets Even Worse
This deal is a crushing blow to songwriters who make their living from royalties – which, if they’re lucky, is enough to keep the lights on. It is also a ridiculously good deal for the digital music distributors, who have effectively been robbing songwriters blind for a decade and a half. So why would the DOJ go out of their way to squash songwriters and hand a sweetheart deal to digital companies?
One reason may be Renata Hesse – head of the DOJ antitrust division – who was instrumental in ramming through the 100% Licensing Decree. In her own words, she “did a lot of work” for Google prior to taking her current position. And clearly, tech companies like Google – which owns music streaming services – stand to benefit the most. I’m not here to sling dirt on anybody, but one wonders if that doesn’t play a role in this inexplicable behavior. Clearly, the DOJ is putting its finger on the scale in this case, and they don’t care about hurting creators. All we’ve been asking for a fair shake in the new digital age.
So what can be done? Listen. Educate yourself on your rights. Vote. Support your PROs and Songwriter Organizations. Ask them what you can do to help. Write or call your elected representatives – a list can be found here – and ask if they will stand with songwriters on this issue. Speak out. Stand up. Fight to protect your rights, or they may well disappear.