If you are a songwriter you have probably heard a lot about the ASCAP and BMI Antitrust Consent Decrees over the past couple weeks since the Department of Justice's position came out at the end of June. You have probably heard a lot of complaints and confusion on the issue and if you haven't been following this process, it may be the first you have heard of the decrees so you may be processing all of this information for the first time. There are many emotions surrounding this position and a lot still yet to be determined. So what do you need to know and what can you do?
In the United States royalties are collected for mechanical and performing rights. Performing Rights Organizations (PRO) ASCAP, BMI, and SESAC collect royalties for performing rights which cover when a song is performed publicly. They distribute income and distribute it to publishers and songwriters. ASCAP and BMI are governed under a consent decrees initially issued by the Department of Justice in 1941.
Two and a half years ago BMI and ASCAP, some music publishers and songwriters have asked for elimination or modification of the Antitrust Consent Decrees to keep up with the changes in the music industry.
On June 30th, 2016 news came pouring in that the Department of Justice(DOJ) was denying all requests to amend the ASCAP and BMI Consent Decrees, a decision that was presented to BMI and ASCAP on June 29th. In addition to this they also requested the enforcement of 100% licensing, which has never been the industry standard. The DOJ originally brought this up in 2015 as a possibility and it was largely unsupported by the songwriting and publishing community.
So what is all of this talk about 100% Licensing?
"Today, and historically, BMI and ASCAP, and the licensees who use your music, have operated under a model where each PRO collects for and pays out for only the shares of musical works each represents in its respective repertoire; this practice is known as fractional licensing. It allows a co-owner to license only their own share in a work and receive direct payment from their PRO for that share. To put it simply, BMI collect and pay you, as a BMI affiliate, for your share of a co-written song under our specific valuation system.
100% licensing would allow any one co-owner of a work to license 100% of the work without needing the permission of the other co-owners. Essentially, your writing partner could have 100% control over the licensing of your song, without your say, subject only to an obligation to account to you for your share of licensing revenues." - via BMI.com
Read this for a full explanation of The Facts About Fractional vs. 100% Licensing from BMI
Also read this breakdown on 100% licensing from Nashville Songwriter Association International's, Bart Herbison, on “PRO Licensing of Jointly Owned Works”
Read Bart Herbison's comments to the DOJ ruling HERE
So where are we at now?
"While we hope to reach a mutually agreeable resolution with the DOJ, we have a number of scenarios in front of us that we are evaluating carefully. We believe the DOJ’s interpretation benefits no one – not BMI or ASCAP, not the music publishers, and not the music users – but we are most sensitive to the impact this could have on you, our songwriters and composers. The decisions we make will always consider what is in your best interest." - Mike O’Neill (BMI's President and CEO)
Read BMI's President and CEO Mike O’Neill's full update and explanation of the DOJ's position HERE
What can you do?
The biggest thing you can do right now is stay up to date on what is happening with your PRO and local NSAI chapter so you have the most current facts and information at hand.
It also can't hurt to reach out to your Federal Senators and Representatives to let them know how the DOJ's position is impacting or stands to impact you as a songwriter in today's market.
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