My immigrant parents came to America, like millions of others, in pursuit of the American dream. They were employed by IBM in Vermont, Virginia, and then Texas. They believed in what America promised: that hard work would be rewarded and that success would follow a diligent pursuit of a vocation. Recent events at the DOJ, offer me little alternative than to believe that the American dream, at least for professional songwriters, has been dealt a devastating blow.
Tens of thousands of US and international songwriters make their living creating the songs that are enjoyed by millions of consumers every second of every day on an ever-widening array of media: radio, satellite radio, cable television, local television, broadcast network television, and digital streaming services, to name a few. Songwriters depend upon performing rights organizations (PROs) to license the copyrighted songs they create to these music users. Music users pay license fees to the PROs, which in turn distribute royalties to songwriters.
For over 60 years, by far the two largest PROs, the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI) have operated under Consent Decrees with the Department of Justice. Although in theory, these Consent Decrees are intended to protect both songwriters and users from abusive behavior by the PROs, in practice, the decrees have primarily served to protect music users, many of which are large and powerful corporations, such as Google, Apple, Spotify, Sirius XM and television and radio broadcasters.
Two years ago, the DOJ began a review of the ASCAP and BMI Consent Decrees. For two years in negotiations, meetings, conference calls, visits to the halls of Congress submissions of letters from thousands of songwriters, a legal opinion from the US Copyright Office and personal letters from Members of Congress, the DOJ was urged to consider the interests of songwriters, who must be able to license the songs they create in order to survive.
Last week, however, under Assistant Attorney General Renata Hesse (a former Wilson Sonsini attorney -- Google’s law firm), the DOJ announced that, going forward, it intends to interpret the Consent Decrees to require ASCAP and BMI to only issue licenses for songs they control 100%, up-ending decades of custom and practice. The DOJ’s intention, presumably, is to make life easier for companies like Google, Apple, and Spotify. In doing so, DOJ has created an unworkable solution to a non-existent problem.
Songwriters are a collaborative group. We like and need to write with other writers, and often, those collaborations are key to writing the most memorable songs. Today, people like Max Martin and Taylor Swift or Justin Timberlake and Timbaland, join the list of famous co-writers who are songwriting’s bright stars: Lennon & McCartney, Goffin & King, Ashford & Simpson and Rodgers & Hammerstein. When songwriters write songs together, we share ownership of the song. It has long been the custom and practice in the industry that each co-writer could choose which PRO would license his or her interest in the song. But ignoring the many legitimate reasons for this practice, the DOJ has now decided ASCAP and BMI can only license songs if they represent 100% of the work.
The DOJ’s relentless pursuit of the 100% licensing policy ignores seven decades of history. This new licensing scheme is devastating to songwriters: it deprives songwriters of the right to control their own songs and to choose the PRO that they trust to license their songs and account to them properly. This will mean that some songwriters will decline to write songs with people at different PROs. Other songwriters will have to accept monies from a PRO with whom they have no relationship and no recourse if they are not treated fairly and equally with that PROs members, already a common occurrence.
The DOJ has effectively diminished and deprived songwriters of one of the rights granted to them by the United States Constitution. How does the DOJ have the ability to take rights away from songwriters that were granted to them by the Constitution?!
And this is all to benefit the interests of large and powerful corporate entities while hurting individual songwriters. Every single owner or agent of copyright told the DOJ that they had it dead wrong, and that they were creating an immense amount of chaos by eliminating the practice of letting ASCAP and BMI license the shares of songs which they control.
Chaos benefits no one. Songwriters will not stand by quietly while the DOJ deprives them of rights they have been granted by the US Constitution and limits their creative collaborations.
On July 12, in a House Judiciary Committee Oversight Hearing, Reps. Jerry Nadler (D-N.Y.), Doug Collins (R-Ga.), Judy Chu (D-Calif.) and Hakeem Jeffries (D-N.Y.) asked Attorney General Lynch about the Anti-Trust Division’s review of the Consent Decrees. Lynch stated that the matter was not concluded and was still ongoing, despite the fact that Assistant AG Renata Hesse’s staff had indicated their interpretation of the Consent Decrees was final. As Judiciary Committee members recommended, an independent review of Ms. Hesse’s motivation and the actions of her staff is warranted. I hope Ms. Lynch takes that request seriously for the sake of American songwriters and culture.
Savan Kotecha is a Grammy and Golden Globe nominated songwriter and record producer from Austin, Texas. Kotecha has co-written such hits as The Weeknd’s “Can’t Feel My Face,” and “In The Night,” Ellie Goulding’s “Love Me Like You Do,” and “On My Mind,” Usher’s “DJ Got Us Falling In Love,” Maroon 5’s “One More Night,” and One Direction’s “What Makes You Beautiful.” The recipient of 9 BMI Awards, 13 ASCAP Awards and 2 Billboard Music Awards, Kotecha’s songs have achieved number one status all over the world having sold more than 250 million copies.