UPDATE: A federal judge rejected the Justice Department’s ruling on music licensing Friday, a decision that has been applauded by songwriters. Friday’s decision applies only to licensing agency Broadcast Music, Inc. (BMI); Ascap’s case is being heard by a different judge, the New York Times reports. “Now songwriters can go into writing rooms and not feeling like they have to bring lawyers with them,” BMI chief executive Michael O’Neill told the newspaper after Friday’s decision. As SONA wrote after celebrating BMI’s victory, “Our fight continues auspiciously!”
An organization representing songwriters filed a lawsuit Tuesday against the Justice Department, alleging that a ruling last month promoted payout disparity by streaming services and digital radio. The New York Times reports that the suit also names Attorney General Loretta E. Lynch and Renata B. Hesse, a Justice Department partner who oversees antitrust cases, as defendants.
Last month, the Justice Department ruled that companies like Ascap and BMI – the two primary companies that collect money for songwriters and earn more than $2 billion a year – must own 100 percent of the rights to the songs in their catalogue; they would not be able to offer songs with multiple writers who have agreements with different companies to radio or digital services on a compulsory basis. Songwriters of North America (SONA), an L.A.-based organization with some 200 members, claim that this ruling is a violation of songwriters’ Constitutional property rights, and BMI has said it would challenge the rule at a federal hearing.
The Justice Department has said that songs with writers aligned with different organizations should renegotiate their deals. But SONA says that the ruling violates the Fifth Amendment since they perceived it to strip them of property rights without due process. Forcing songs to be governed by only one clearinghouse ostensibly creates a monopoly and, subsequently, they want the ruling to be declared illegal.
“The 100 percent mandate is an illegitimate assertion of agency power in gross violation of plaintiffs’ due process rights, copyright interests and freedom of contacts, and needs to be set aside,” the lawsuit claims.
Songwriter Michelle Lewis, who has written hits for Cher and Katherine McPhee, among others, founded SONA a year ago to promote advocacy for songwriters. Her lawsuit also features two other notable plaintiffs: Tom Kelly, who helped write Madonna’s “Like a Virgin” and Cyndi Lauper’s “True Colors,” and Pam Sheyne, who co-wrote “Genie in a Bottle” for Christina Aguilera.
Lewis told the Times that while songs she’s written for TV, such as a song in Disney’s Doc McStuffins, would proffer quarterly royalty checks in the thousands, she receives less than $100 for songs streamed on services like Pandora and Spotify. “The honest truth is that if it weren’t for the TV stuff, I’d be working at Starbucks,” she told the outlet. “There is no way I could afford to be a songwriter just on streaming and digital radio.”
Gerald P. Fox, who won a copyright infringement suit against Michael Bolton on behalf of the Isley Brothers in the Nineties, is representing SONA pro bono. The organization was advised by Jacqueline C. Charlesworth, who previously served as general counsel for the U.S. Copyright Office, in preparation for the suit.