Yesterday I had the honor of attending the announcement of the Nashville Songwriters Hall of Fame’s 2018 inductees, Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson.  I am so honored to serve as general counsel for this outstanding organization and serve with president Pat Alger, executive director Mark Ford, and all of the other talented and wonderful directors on the board, not to mention the fact that I get to brush elbows with these 200+ amazingly talented songwriters.  Below is the press release:

[/fusion_text][fusion_text columns=”” column_min_width=”” column_spacing=”” rule_style=”default” rule_size=”” rule_color=”” class=”” id=””]Nashville, TN August 7, 2018 – Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson will be inducted into the Nashville Songwriters Hall of Fame in October, according to an announcement made today by Hall of Fame member Pat Alger, chair of the organization’s board of directors.

The five new inductees will join the 208 existing members of the elite organization when they are officially inducted during the 48th Anniversary Nashville Songwriters Hall of Fame Gala on Sunday, October 28, at the Music City Center.

“This time of year, as board chair of the Nashville Songwriters Hall of Fame Foundation, I am always reminded of the broad variety and high quality of the songwriting talent we are so fortunate to be able to celebrate,” says Alger.  “The musical trends might change through the years, but for us it always comes down to great songs and legendary songwriters – the bedrock of the town that continues to be hailed as Music City.  This year’s nominees for the Nashville Songwriters Hall of Fame were inspiring and impressive as always, each one deserving recognition for the impact they made. Today it’s my great honor to welcome the Nashville Songwriters Hall of Fame class of 2018:  Byron Hill and Wayne Kirkpatrick in the songwriter category; Joe Melson in the veteran songwriter category; Ronnie Dunn as our songwriter/artist and K.T. Oslin as our veteran songwriter/ artist.”

Byron Hill’s songwriter credits include “Pickin’ Up Strangers” (Johnny Lee), “Fool Hearted Memory” (George Strait) and “Nothing On But The Radio” (Gary Allan).  Wayne Kirkpatrick’s resume is known for the Grammy-winning “Change The World” (Eric Clapton) and “Little White Church” (Little Big Town) and the Broadway musical Something Rotten!.  Joe Melson is the co-writer of the Roy Orbison hits “Only The Lonely (Know The Way I Feel),” “Crying” and “Blue Bayou.”  Ronnie Dunn popularized many of his own compositions, including the Brooks & Dunn hits “Neon Moon,” “Boot Scootin’ Boogie” and “Believe.”  K.T. Oslin recorded many of her self-penned hits, including “80s Ladies,” “Hold Me” and “Come Next Monday.”

The Nashville Songwriters Hall of Fame Gala is one of the music industry’s premier events of the year.  The evening features tributes and performances of the inductees’ songs by special guest artists.  In recent years artists such as Garth Brooks, Luke Bryan, Jimmy Buffett, Ronnie Dunn, Emmylou Harris, Alan Jackson, Tim McGraw, Thomas Rhett, Blake Shelton, Marty Stuart, Taylor Swift, Josh Turner and Trisha Yearwood have performed at or participated in the event.

Also at the event, NaSHOF will present Reba McEntire with the inaugural Career Maker Award in honor of her significant influence on the songwriting careers of Hall of Fame members.

Tickets for the Hall of Fame Gala are $250 each and benefit the nonprofit Nashville Songwriters Foundation.  Select seating is available to the public and may be purchased as available by contacting Executive Director Mark Ford athoftix@nashvillesongwritersfoundation.com or 615-460-6556.
 
About the Nashville Songwriters Hall of Fame:

Induction into the Nashville Songwriters Hall of Fame is one of the nation’s most highly prized songwriting achievements.  Since 1970, the Hall has enshrined more than 200 of the greatest writers from all genres of music ever to put words to music in Music City, including such luminaries as Bill Anderson, Bobby Braddock, Garth Brooks, Felice & Boudleaux Bryant, Johnny Cash, Don & Phil Everly, Harlan Howard, Kris Kristofferson, Loretta Lynn, Bob McDill, Bill Monroe, Willie Nelson, Roy Orbison, Dolly Parton, Dottie Rambo, Jimmie Rodgers, Fred Rose, Don Schlitz, Cindy Walker and Hank Williams.  Operated by the non-profit Nashville Songwriters Foundation, the Hall of Fame is dedicated to honoring Nashville’s rich legacy of songwriting excellence through preservation, celebration and education.  More information is available at http://www.nashvillesongwritersfoundation.com/.
 
Photo (l-r) Inductees Wayne Kirkpatrick, Byron Hill and Joe Melson; NaSHOF Executive Director Mark Ford; Inductees K. T.  Oslin and Ronnie Dunn.

Photo Credit:  Bev Moser
 
Contacts for the Nashville Songwriters Hall of Fame:

Media
Jennifer Bohler / Alliance
615 292 5804
jenny@jb-alliance.com

Executive Director
Mark Ford / NaSHOF
615 460 6556
markford@nashvillesongwritersfoundation.com

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Inductee Biographical Information
 
BYRON HILL

Winston-Salem, N.C., native Byron Hill moved to Nashville in 1978 and soon signed with ATV Music Group, where he enjoyed his first cuts with “Pickin’ Up Strangers” by Johnny Lee and George Strait’s first #1 “Fool Hearted Memory” in 1982.  Byron left ATV in 1984, but his songwriting resume continued to expand with “Nights” by Ed Bruce, “Born Country” by Alabama, “Alright Already” by Larry Stewart, “Lifestyles Of The Not So Rich And Famous” by Tracy Byrd, “High-Tech Redneck” by George Jones, “If I Was A Drinkin’ Man” by Neal McCoy, “Nothing On But The Radio” by Gary Allan and “Size Matters (Someday)” by Joe Nichols.  Other artists who have recorded Byron’s songs include Jason Aldean, Randy Travis, Keith Whitley, Rhonda Vincent, Don Williams, Trace Adkins, Toby Keith, Porter Wagoner, Brooks & Dunn, The Oak Ridge Boys, Ricky Skaggs and Reba McEntire.  To date, Byron’s songs have generated more than 700 recordings, earned 91 RIAA certified Gold and Platinum awards, 10 ASCAP awards, 34 U.S. and Canadian Top-10 chart hits and numerous hits in other global markets.
 
WAYNE KIRKPATRICK

At age 14, Wayne Kirkpatrick moved with his family to Baton Rouge, La.  After a guitar lesson at a Florida Bible camp, Wayne began spending hours after school writing songs and playing younger brother Karey’s acoustic guitar.  Both brothers eventually moved to Nashville, where Karey helped Wayne secure some of his first cuts.  Since then, Wayne has had nearly two dozen chart-topping Contemporary Christian and Pop singles, including “Every Heartbeat,” “Good For Me” and “Takes A Little Time” by Amy Grant and “Place In This World” by Michael W. Smith (the 1992 Dove Song of the Year).  In 1996, Wayne’s co-written “Change The World” by Eric Clapton was featured in the film Phenomenon and earned the 1996 Grammy for Song of the Year.  In 1999 Wayne sang, played and co-wrote eight songs on Garth Brooks’ In The Life Of Chris Gaines project, including “Lost In You” and “It Don’t Matter To The Sun.”  In 2002 he began a longtime collaboration with Little Big Town that yielded hits such as “Boondocks,” “Bring It On Home” and “Little White Church.”  In 2010, Wayne and Karey began working on the musical Something Rotten!, which opened on Broadway in 2015 and earned 10 Tony Award nominations, including Best Musical and Best Original Score.  The show launched a U.S. tour in 2017.

JOE MELSON
Joe Melson grew up in Bonham, Texas.  He began writing and singing his own songs at an early age.  He spent much of his young adult years working at Standard Oil by day then playing high-school dances and local night clubs with his Rockabilly band by night.  In 1957, Joe met and began writing with a then-unknown Roy Orbison.  In 1960, their song “Only The Lonely (Know The Way I Feel)” launched Orbison into superstardom.  The first operatic rock ballad in history, that single was inducted into the Grammy Hall of Fame in 1999.  In 1961, the team created the smash “Crying.”  It became a giant hit for Orbison, was revived as a pop hit by Jay & The Americans five years later and entered the country repertoire via versions by Ronnie Milsap and Don McLean, among many others. Orbison’s single was inducted into the Grammy Hall of Fame in 2002.  In 1963, the duo’s “Blue Bayou” became another hit for Orbison (and, years later, Linda Ronstadt).  Joe’s song catalgoue also includes “Blue Angel,” “Running Scared,” “Lana” and “I’m Hurtin’” (all hits for Orbison), as well as “Run Baby Run (Back Into My Arms)” by The Newbeats and the Glenn Barber singles “Unexpected Goodbye” and “I’m The Man On Susie’s Mind.”  In 2002 Joe was inducted into the Rockabilly Hall of Fame.
 
RONNIE DUNN

Ronnie Dunn was born in Texas, but Tulsa, Okla., became his hometown.  He began playing guitar and performing in Country bands when he was in his teens.  After winning the Marlboro Talent Search, Arista Records expressed interest in him.  The label teamed him with singer-songwriter Kix Brooks, and the two recorded as Brooks & Dunn from 1991-2011.  The mega-duo sold millions of records and was named CMA Vocal Duo 14 times.  The Brooks & Dunn hits “Neon Moon,” “Hard Workin’ Man,” “She Used To Be Mine,” “She’s Not The Cheatin’ Kind” and “Little Miss Honky Tonk” were all written solo by Ronnie, as was “Boot Scootin’ Boogie,” which was named ACM Song of the Year in 1992.  Ronnie was BMI’s Country Songwriter of the Year in 1996 and 1998.  Co-written Brooks & Dunn hits include songs such as “Brand New Man,” “My Next Broken Heart” and “Believe,” which was the ACM Song of the Year in 2005 and the CMA Song and Single of the Year in 2006.   In  2011, Ronnie resumed his solo career as a singer-songwriter with “Cost Of Livin’.”  Ronnie was inducted into the Oklahoma Music Hall of Fame in 2003.

K.T. OSLIN
Kay Toinette Oslin was born in Crossett, Arkansas.  After her father died, she moved with her mother to Houston, where she later attended college as a drama major.  In 1966, she joined the road company of Hello Dolly!.  When the musical returned to Broadway, K.T. remained in the cast.  During the next two decades, she appeared as a chorus girl in musicals such as Promises, Promises and West Side Story.  She also sang commercial jingles around New York and began writing songs.  By 1981, she was signed to Elektra Records and released two singles with modest success.  She also had songs recorded by Gail Davies, The Judds and Dottie West.  By 1987, K.T. had moved to Nashville and signed with RCA Nashville.  She scored big with her self-penned “80s Ladies,” which was named 1988 CMA Song of the Year, making her the first female writer to win the award.  That album also launched the singles “Do Ya” and “I’ll Always Come Back.”  Her second album generated five singles, including “Money,” “Hey Bobby,” “This Woman,” “Didn’t Expect It To Go Down This Way” and “Hold Me,” which earned the 1988 Grammy for Best Country Song.  K.T.’s third album generated the hits “Come Next Monday” and “Mary And Willie.”  She was named 1988, 1989 and 1991 SESAC Songwriter of the Year.  K.T. is a 2014 inductee into the Texas Heritage Songwriters Hall of Fame.

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The plight of the “starving artist” is timeless and history is replete with stories of songwriters and artist being exploited for their intellectual contributions. In the mid 1800’s, when Stephen Foster wrote The Suwannee River, Oh! Susanna, Camptown Races, Jeanie with the Light Brown Hair, and Old Kentucky Home, tImage result for stephen foster songshe 1790 Copyright Act only protected “maps, charts and books” and thus did not extend to musical compositions. The only way Foster could conceive of earning an income from his craft was to sell his sheet music to traveling troubadours and minstrel shows, such as “Christy’s,” that traveled the country. The strategy worked in terms of getting his music exposure, but without adequate protective remedies, it created an environment where unscrupulous and dishonest publishers “bootlegged” his work and sold copies for their own profit. While most of the country knew Foster’s work (even today) because of this exploitation, he died a pauper in 1864 with less than a dollar to his name.  So much for the post-Napster argument that illegally downloading and streaming music actually makes money for its creator by giving it wider exposure!

About 10 years following Stephen Foster’s death, mechanical sound recording technology was developed allowing reproductions of musical performances and thus began a revolution. Just over 50 years following that, transmission of sound waves via broadcast technology was invented and perfected, giving us the “music industry” as we knew it for over a hundred years. Had Foster lived another 20 years or so, he may have made millions of dollars as a result of his creations.

As a result of these nfostertombewfangled and emerging technologies, and at least in partial deference to Stephen Foster’s unfortunate demise, Congress finally passed the 1909 Copyright Act which provided copyright protection for musical compositions, giving them an initial term of 28 years with one 28-year renewal period for the purpose of “prevent[ing] the formation of oppressive monopolies” which might limit those rights. See, H.R. Rep. No. 2222, 60th Cong., 2nd Sess., p. 7. Now, these newly protected musical compositions could be performed and embodied in sound recordings (although sound recordings were still not protected by federal law at this time), which could themselves be performed in broadcasts over the radio waves. It was an exciting time in the music business, which saw the rise of music publishers, record labels, radio stations, Harry Fox and all three performance rights organizations, ASCAP, SESAC and BMI, in that order.

The industry became a powerhouse. The radio stations played the sound recordings, inspiring their listeners to buy the product distributed by the record labels. The performance rights organizations would collect the royalties for performance of the musical compositions, and pay the music publishers and the songwriters. Everyone was happy, or so it seemed. Still there were flaws in the system.  The sound recordings – the the actual performances of a musical compositions fixed onto records – would not receive copyright protection for another 60 years when Congress passed the Sound Recording Amendment of 1971, and even then received only limited rights: derivative, distribution and reproduction. Five years later, the Copyright Act of 1976 created a specific category for sound recordings, and Congress has since given the authors of sound recordings the right to receive digital performance royalties, although they are still not entitled to terrestrial performance royalties, as are songwriters and publishers.

So, prior to February 15, 1972 when the SR Amendment took effect, the performances of the featured artists and musicians on those recordings were not entitled to any performance royalty, but rather were only paid the meager artist royalties that they received from the record labels, if they received anything at all. That deficiency left a significant gap for sound recordings created from circa 1874 until 1972, which were only protected under state and common law regimes – varying widely from state to state if they are even recognized at all – containing divergent scopes of protection, limitations and exceptions. Many attempts have also been made by the recording industry and other stakeholder to urge Congress to pass such acts as the Fair Play Fair Pay Act (H.R. 1836) which would add terrestrial royalties to their list of rights and revenue streams.

As may be expected, this kind of legislative confusion has led to a great deal of state lawsuits as creators of pre-1972 sound recordings attempt to enforce their rights through state courts. In one such case brought by my good friend, Mark Volman of the Turtles, a court ordered SirrusXM to pay almost $100 million to settle a class action lawsuit brought in California, Florida and New York based on state laws governing pre-1972 recordings. In a similar case, the internet service Grooveshark had its business model decimated and was finally forced into bankruptcy as a result of its fight against labels over its use of pre-1972 recordings and whether the Digital Millennium Copyright Act’s safe harbor provision applied.

Such high-profile lawsuits often motivate legislators, who are in turn motivated by what motivates their constituents. As a result, last month, Congressmen Jerrold Nadler (D-NY) and Darrell Issa (R-CA) of the 115th Congress introduced House Resolution 3301, the CLASSICS Act, an acronym for the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act. See, the full text here. The bill has six sponsors, among them is Tennessee’s Representative from the 71st District, Marsha Blackburn.

While the bill addresses the orphan status of pre-1972 gap sound recordings by providing them with the rights currently enjoyed by post-1972 recordings (i.e., reproduction, distribution, digital performance, and derivative rights), it stops short of full federalization of those recordings and continues to ignore the terrestrial royalty issue. The CLASSICS Act is short by today’s standards, addressing only a few key points.  Nonetheless, it is a step in the right direction.  

In short, the CLASSICS Act addresses two of the significant issues raised by the two examples of litigation cited earlier: it makes very clear that the rights of pre-1972 sound recordings are on parity with later sound recordings; and that the DMCA notice and takedown regime is applicable. Notably, Section 1401(d)(1) of the CLASSIC Act “shall not be construed to annul or limit any rights or 9 remedies under the common law or statutes of any State for sound recordings fixed before February 15, 11 1972.” In other words, state law claims are still permissible.

H.R. 3301 is still “only a bill,” and is, as of now, “sitting [t]here on Capital Hill.” As we learned from Mr. Bill in that School House Rock classic written by Dave Frishberg and performed by Jack Sheldon, “it’s a long, long wait while [it’s] sitting in committee,” but a least we can “hope and pray” that one day it’ll be a law!  You can follow whatever progress it makes on Congress.gov.

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The first of the month (August 2016), the Department of Justice issued a summary of findings with regard to two court orders that govern the operation of two of the U.S. performing rights organizations (the “PRO’s”), ASCAP and BMI.  If it stands, the decision will also affect the third PRO, SESAC.

Songwriters and music publishers around the country were horrified with the DOJ findings, as were the PRO’s, with many songwriters claiming that they would now have to refrain from co-writing with songwriters belonging to one of the sister PRO’s.  This article will examine the logic of the reaction by the music community.  Is the proverbial sky falling, or will this event pass into obscurity and irrelevance?  We’ll sort out what all this means in this article.

As an aside, if you were not fortunate enough to tune into last night’s episode of my friends Heino and Scott with The Music Row Show on WSM 650, go to their website and check out the archives, as much of the information we share here was talked about in that radio program.  My appearance and conversation with The Music Row Show made me realize just how confused many songwriters will be about all of this legal maneuvering.  

Background

Before we look at the court orders, referred to as “Consent Decrees,” a little historical background will be helpful.  As I said, there are primarily three PRO’s, ASCAP, SESAC and BMI, and they were created in that order.   The two largest US PRO’s, ASCAP and BMI, make up the majority of the industry.  SESAC, by most accounts, has between 10-20% market share (although it is growing exponentially).

This is because ASCAP and BMI were both created out of controversy and strife and that highly competitive environmental produced some robust and resilient entities.  ASCAP arouse out of the Tin Pan Alley days.  Several of the key songwriters, IRVING BERLIN, VICTOR HERBERT and JOHN PHILLIPS SOUSA, began to see their songs being performed in restaurants, hotel lobbies and other venues, and they realized that they were not receiving royalties from these performances, a right that was first granted in 1897 and then incorporated directly into the 1909 Act.  These famous writers banded together to form the first coalition of songwriters and publisher, the American Society of Authors, Composers and Publishers.

Their efforts may have been received well in the music community, but the entities that used the music did not share that enthusiasm.  Certain NYC restaurant and hotel magnets, namely Shanely and Vanderbilt, questioned whether they were required to pay the composer for performance of a song in their establishments, even though they charged no admission for those performances.  The music, they maintained, was just a side show and not the main focus of what their customers were paying for.

The case, Herbert et al. v. Shanley et al. went all the way to the Supreme Court.  Writing for the majority, Justice Oliver Wendell Holmes ruled in favor of ASCAP and songwriters, saying:

Music is part of the total for which the public pays and the fact that the price of the whole is attributable to a particular item which those present are expected to order is not important.  It is true that music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere.

As a result, ASCAP had the stamp of approval from the highest court in the land.  They started an aggressive campaign to acquire licenses from venues where performances of music occurred, including broadcasters like television and radio stations. 

BMI arose as a direct result of ASCAP’s aggressive licensing activities.  From 1931-1939, ASCAP increased its royalty rates to radio and television stations over 400%, to the point where a group of broadcasters decided to get together and form Broadcast Musicians Incorporated in 1939.  They started signing their own composers and begin licensing non-ASCAP works for their catalog.  After a few years, most radio and television stations stopped using ASCAP music and would only use BMI-licensed music.

BMI and ASCAP have been adversaries ever since.  ASCAP, of course, had the upper hand, since they were first to market and arose out of the Tin Pan Alley environment.  ASCAP did not take kindly to being shut out of the lucrative broadcast market and the two organizations began a decades long fight for the music users.  This conflict ultimately caught the attention of the DOJ, who sued each entity under the Sherman Act (anti-trust) to address their comparative market power and balance the weight of power.  The result of the DOJ’s involvement were the consent decrees that, to this day, govern how terrestrial radio (Either AM/FM) digital rebroadcasts, and/or venues such as bars and arenas, license the performance of compositions.

SESAC, a European PRO at first licensing mostly classical, slipped into the U.S. in 1939 amidst all of this sibling rivalry and began licensing in the U.S., but as a private entity as opposed to operating as a non-profit like ASCAP and BMI.  They are not subject to any consent decrees and to this day remain under the radar, although the DOJ periodically audits them as well.

The ASCAP/BMI consent decrees defining what the PRO’s can and cannot not do – most notably, it requires them to issue “blanket licenses” to certain users.  These have been amended in 2003 and 1994 respectively.  The decrees also require that both entities offer licenses are similar terms and to similar clientele.  Importantly, for this discussion, the consent decree require that the PRO’s license to a user like Pandora one a request for license is made, regardless of whether a rate has been negotiated.  If the PRO’s and the user cannot agree on a rate, it is then presented to the “rate court” set up by the consent decree to decide.  The catch is that while all of this legal wrangling is going on, services like Pandora can continue performing the music.

The Recent DOJ Ruling

The gravamen of this issue happened in 2013 when several large music publishers, SONY ATV, EMI and Universal, among others, withdrew their “new media” licensing rights from ASCAP and BMI, leaving them to collect only their terrestrial right (read broadcasted radio or television).  They did this for a couple of reasons:  first, the consent decree do not allow the PRO’s to negotiate a market rate with digital streaming services; so, secondly, they did it in order to negotiate better deals directly with Pandora.  In 2013, Pandora negotiated a favorable percentage rate with Sony and Universal based on their gross revenues.

With their hands tied and major publishers going direct to digital stream services, ASCAP and BMI had no choice.  Streaming revenues have been increasing for years, and without these major players bringing in revenue, their revenues were decreasing.  So, in short, ASCAP and BMI went back to the DOJ seeking clarification with regard to the consent decrees with regard to operation and effectiveness.  Among other things, ASCAP/BMI ask that the decrees be modified to allow publishers/songwriters to “partially withdraw” their works.  This prompted a new review of the Consent Decrees by the Department of Justice that begin in 2014.  The DOJ released its findings on August 4, 2016 of this month.

The DOJ said that the ASCAP consent decrees doesn’t allow a publisher to withdraw partial shares.  It stated that consent decrees require a PRO “license to perform all the works in [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][its] repertory…” That meant, according to the DOJ, that it could not “rewrite the decree” to let publishers pick and choose how works are licensed and allow fractional shares.  This has great impact on the existing deals already negotiated with Pandora.  Specifically, the DOJ said:

The licensing of works through ASCAP is offered to publishers on a take-it-or-leave-it basis.

Specifically, the DOJ ruled:

1)  That the consent decrees would not be modified or abolished

2)  That the consent decrees to DO NOT allow “fractional” licenses that convey only fractional shares and required additional (read other PRO) to perform the works, i.e, the DOJ interpreted the consent decrees to require “full-work” licensing.

This new and dramatically different interpretation requires the PRO’s to convey licenses to radio, television, bars and digital music services giving them the right to public perform “100%” of their repertoires without the risk of adverse infringement.  This new “full-work licensing” principal applies even if ASCAP or BMI only represent a small fraction of a song’s copyright, which is almost always the case.  The problem, of course, is that ASCAP and BMI do not generally have the legal right to convey 100%!

Ironically, the DOJ findings state that “the current status quo system [used by the PRO’s]. . . has served the industry well for decades and should remain intact.”   This is confusing, since historically the PRO’s have licensed fractional shares, contrary to the DOJ’s findings.  A single song most often is written by multiple songwriters and those songwriters are generally affiliated with different performance rights organizations and only own a fractional interest in that song.  When a song such as All-American Girl, is written by Carrie Underwood, whose performance is licensed by BMI, with two other ASCAP songwriters, traditionally BMI would license 33.33% of the song and ASCAP would license the other 66.66%.  Now, according to the DOJ, either BMI and or ASCAP would have to license 100% of the song and report and pay the royalties for the other songwriters to the other PRO.  Imagine how these historic competitors view that prospect!

Herein lies a big part of this current problem.  If we look to copyright law, as we must, the answers may be clearer.  Under section 201(a), the author of song is the owner of the song.  But as all songwriters in Nashville are prone to collaborate, we have to factor in a second author/owner.  When that happens, the copyright law treats each owner as a tenant-in-common, just like two spouses who jointly own a house.  In other word, each one owns 100%.  So what does that mean?

That means that “[e]ach co-owner may thus grant a nonexclusive license to use the entire work without the consent of other co-owners, provided that the licensor accounts for and pays over to his or her co-owners their pro-rata shares of the proceeds.” United States Copyright Office, Views of the United States Copyright Office Concerning PRO Licensing of Jointly Owned Works (2016).  Of course, the songwriters can alter this default situation through signing a collaboration agreement, but no one ever does because that would “harsh the songwriting vibe.”

Furthermore, in a joint author situation, either author of the work may enforce the right to exclude others from using the work.  So, each author of a joint work “has the independent right to use or license the copyright subject only to a duty to account for any profits he earns from the licensing or use of the copyright.” Ashton-Tate Corp., 916 F.2d at 522 (9th Cir.1990). Accordingly, a joint copyright owner may not exclude other joint owners or persons who have a license from another joint owner. 

But there is another part of this analysis that can’t be ignored, and that is the doctrine of indivisibility.  Under the prior, 1909 Copyright Act, the author(s) could NOT divide the copyright, meaning that if the copyright was licensed, the entire copyright had to be licensed, not just one of the exclusive rights.  So, I would not be able to issue a print license apart from a license to perform the work.  The 1976 Act eliminated this doctrine and effectively made the copyright divisible.  Specifically, Section 201(d)(1) of the Act states that the ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law.  Further, the following section 201(d)(2) specifies that this principle of divisibility applied to each of the exclusive rights – print, adaptation, distribution, reproduction and performance – which could be divided, transferred and owned separately.

Now, for the first time, an author could license only the performance rights.  But more specifically, the author could license only a portion of his/her performance rights.  So, you see, the idea of transferring fractional shares of a copyright, or one of the exclusive rights of a copyright, is actually built into the copyright act.  This is something the DOJ ruling completely ignored in its analysis when it interpreted the Consent Decrees to require the PRO’s to offer 100% licensing of their catalog. 

The DOJ, however, was focused primarily on the user of the music, completely ignoring the creators.  For the user, the DOJ felt it was egregious to have to go to all three PRO’s to get a license to perform one work.  To be fair, the PRO’s have tiptoed gingerly around this issue for years.  A license from one songwriter/publisher to perform a work should, in theory, be sufficient.  That is, after all, the meaning of a non-exclusive license.  The industry has avoided the user aspect of partial rights grants for years, requiring each user to obtain a “blanket license” from all three PRO’s in order to perform each PRO’s catalog (and consequently, glossing over the fact that a license to perform one individual work from the owner of copyright would suffice to perform the work).  In this way, each PRO could distribute the royalties collected on the benefit of their members to each one respectively according to their own algorithms. 

That process may change if the DOJ’s consent decree remains in effect.  Each PRO would have to agree who collects for a particular license, and then credit the other with their share.  This would require each one to adjust their rates accordingly and account to and pay some of the royalties received to the other PRO’s.  While it can’t be stated definitively, one just feels that this process will somehow negatively impact the songwriters and publishers, and not the PRO’s or the venues.

Most people in the industry predict that application of this “full-work” licensing approach will throw the music industry in complete and utter chaos – and they’re probably correct.  But, as I said earlier, all hope is not yet lost.  First, the DOJ gave ASCAP and BMI one year to get their act together and start operating on the 100% licensing principle they outlined.   Second, for perhaps the first time in history, ASCAP and BMI are bedfellows (you know what they say of politics) in that they have agreed to a course of reaction:  BMI is appealing the DOJ’s ruling while ASCAP is lobbying Congress for relief.   ASCAP and BMI both announced that they would join forces to fight this common foe.

The president of BMI, Michael O’Neill, was quoted in the Tennessean in response:

The DOJ’s interpretation of our consent decree serves no one, not the marketplace, the music publishers, the music users, and most importantly, not our songwriters and composers who now have the government weighing in on their creative and financial decisions.  Unlike the DOJ, we believe that our consent decree permits fractional licensing, a practice that encourages competition in our industry and fosters creativity and collaboration among music creators, a factor the DOJ completely dismissed.

For her part, CEO of ASCAP, Elizabeth Matthews stated that:

The DOJ decision puts the U.S. completely out of step with the entire global music marketplace, denies American music creators their rights, and potentially disrupts the flow of music without any benefit to the public.  That is why ASCAP will work with our allies in Congress, BMI and leaders within the music industry to explore legislative solutions to challenge the DOJ’s 100 percent licensing decision and enact the modifications that will protect songwriters, composers and the music we all love.

Most people outside the industry will have no idea how significant it is that both of this PRO’s are cooperating with each other on this issue.  ASCAP’s and BMI’s joint efforts may serve to put pressure on Congress to address an aging Copyright Act and implement some of the recommendations made by the Copyright Office in 2015, namely, the creation of a mega “Music Rights Organization” or MRO that, among other things, licenses all exclusive rights of the copyright owner, including both performance and mechanical rights.  The Copyright Office also recommended an elimination of the Consent Decrees.  U.S. Rep. Bob Goodlatte, R-Virginia, who is chairman of the House Judiciary Committee, is expected to recommend changes to the Copyright Act that could be taken up on the 2017 Congress.

In the midst of all of this activity, SESAC is again quietly biding their time, acquiring Harry Fox (mechanical rights) and Rumblefish (a “record label” including digital performance rights) in preparation for becoming perhaps the first effective “MRO.”

No one truly knows the ultimate outcome of all of this but one thing is certain:  the history of performance rights organizations in America continues to evolve.  The copyright law is very complex and have evolved over the years since its passage in 1976.  That law took almost half a century to pass and there is no reason to believe that a new revision wouldn’t take just as long given the multiple competing and often conflicting interests of various stakeholders.  But patience is not the songwriter’s only recourse here:  write your elected representative in Washington and plead your case, as free speech is the only right that will make a difference in this fight.

 

 

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A special thanks to my client and friends at Direct Sound Headphones, who made the short trek from their headquarters outside of St. Louis, MO to Nashville to be a part of the show.  Nashville was hosting the  prestigious annual event for National Association of Music Merchandisers for the second year now.

In the photo I snapped, to the right, the president of Direct Sound, Steve Rois, is being interviewed about their new product, the HPA EXW-37 headphones with a wireless range and audio fidelity that surpasses anything else in the industry.  According to Jay Leopardi, a principal partner in Direct Sound, “These are the only wireless headphones on the market that do not suffer from a delay in transmission. “Steve Rois at NAMM

I am proud of my client and their product for several reasons:  first, the focus of their company is on prevent hearing loss using passive noise reduction technologies; second, the headphones feature modular and component parts that can easily be ordered by the consumer and replaced when they wear out; and finally, they are manufactured here in the U.S!

In addition to manning their busy NAMM booth, Direct Sound, Telefunken and NAMM teamed up for the second time to provide headphones for NAMM’s Tec Tracks Learning Center, where dealers could come and hear the latest insights on product promotion and sales from industry experts.

Direct Sound Summer NAMM 2016

Telefunken THP-29 at NAMM’s Tec Tracks

Because of the high noise levels on the NAMM floor from the exhibits, NAMM chose the Telefunken THP-29, made by Direct Sound, as the headphone of choice to let attendees hear the audio programs with the least amount of distraction.

Direct Sound has been in business for almost two decades, which in itself is a testament to the quality of their product.  But you should keep an eye on the company in the upcoming months, as it has been making several impressive endorsement deals and will be releasing a fantastic new product within the upcoming months.

Congratulations on a great show guys!

Is it time for Congress to draft a replacement for the 1976 Copyright Law? In point of fact, the law was drafted almost half a decade ago now and its last major amendment came in 1998 with the addition of the DMCA. Many argue that the advent of digital technology, driven of course by the ubiquitous Internet, makes the current iteration of the Progress Clause obsolete.
Recently, in March 2014, the current Register of Copyrights, Maria Pallante, made just such a proposal to Congress, urging them to create “the next great copyright act.” You can read those remarks here. But contrary to that proposal, other advocates of the status quo point out that Congress has amended the current law to keep it up to date. In fact, Pallante acknowledged as much in her remarks when she said “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][a]s a general matter, Congress introduces bills, directs studies, conducts hearings and discusses copyright policy on a fairly regular basis and has done so for two centuries.” Her push is a part of a coordinated movement with the House Judiciary Chairman Rep. Bob Goodlatte (R-Va) to leave a mark on copyright law.
While I do not necessarily disagree with the Register of Copyrights that perhaps a consideration of a new consolidated law may be necessary to combine these various amendments, I am bothered by the fact that much of the urgency for a new law is driven by the various interested parties on the Internet who believe that just because a copyright finds its way into digital form, it is no longer protected and should be free for all to use, “mash up” or do whatever the hell they want to with it. These radical thinking individuals, such as The Pirate Bay, Lawrence Lessig, the Electronic Frontier Foundation and others use heated rhetoric and emotional appeals to call for a lessening of the copyright protection that has made America the most idea-rich country in the world. While these illogical and emotional appeals are a good way to drum up support dollars and defeat well-meaning and good legislation such as SOPA, they do very little to advance the philosophical and legal debate and should not be the driving force behind our legislation, good or bad. Good emotional causes make for very bad law.
These dramatic appeals for changing the copyright act are most often done with a lack of understanding as to its philosophical underpinnings, and often demonstrate ignorance of the business realities faced by those who create the arts and sciences, as well as the benefactors who support them.
One of the things that bothered me most about Pallante’s remarks was the total absence of any discussion of these philosophical underpinning of the copyright construct. There was no discussion of Article 1, Section 8, Clause 8 of our Constitution (the Progress Clause) or any reference to some of the chief architects of its current form, James Madison, Thomas Jefferson and Charles Pickney, just to name a few. It also worries me when Pallante suggests that the current term – Life + 75 – “is long and the length has consequences,” thereby questioning the validity of the Supreme Court’s proclamation to the contrary in Eldred v. Ashcroft. The latter, of course, is one of about a half a dozen cases the aforementioned anti-copyright advocates has levied against the law over the years.
Sandra Aistars, executive director of the Copyright Alliance, summed it up well in an opinion piece for The Hill entitled “Protect rights of artist in new copyright law.” She said “Should Congress take on the challenge of updating the Copyright Act, it must do so guided by sound principles, and its deliberations must be based in reality rather than rhetoric.” At least Aistars points out that the principle of copyright law is driven by the fact that “protecting authors in in the public interest” and based on “stable property rights.”
Article 1, Section 8, Clause 8 gives Congress the right “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Madison and Jefferson debated the various components of this clause with some degree of fervor in their massive collection of actual correspondence, with Madison defending the idea that if our society gives up a monopoly (copyright) to creators, the value of that monopoly will generate the creation of widespread ideas that would ultimately reward society. There is no doubt that the equitable component that was bestowed upon authors and inventors the day the Congressional Congress approved the Progress Clause has created the America we know and love today through the wealth of new ideas and expressions that have been created in the form of books, music, films, visual arts, scholarly research and inventions. Without that value in the patent or copyright, there would be no Apple, no Microsoft, no IBM, no Ford, no Chevrolet . . . you get the point. This is the reward that Madison envisioned our society would gain by giving individuals control over their creations, a theory that Locke and others disseminated long before the new nation of America was conceived.
As Aistars summarized in her article, “Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression. Consent is at the heart of freedom, thus we must judge any proposed update by whether it prioritizes artists’ rights to have meaningful control over their creative work and livelihood.”
The most important thing for Congress to consider if it picks up the gauntlet laid down by Ms. Pallante is this idea that society benefits by giving a monopoly to creators. Given an individual who has created a work of authorship stable property ownership in that work is the foundation of our great Country and is the primary goal of copyright. To take that away takes away one of our inherent and valuable Constitutional rights, even greater perhaps than our Freedom of Speech and Assembly. Any new proposal much cherish the rights of the creators that the current Copyright Act has created and retain the same privileges and advantages. The future of our Nation in the Internet Age depends on it.
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TimesSquare

If you look closely at the bottom of photograph to left, you’ll see my client, Jay Leopardi, and his new show Common Denominator, featured in the bright lights in New York City.  None other than Times Square!  Congrats to Jay and president of IC Places, Inc., owners of PunchTV, who will fund and host the new show, featuring Jay interviewing various moguls of industry Napolean Hill style!

Learn more about the show here.

In 2009 the Recording Industry Association of America (RIAA) estimated 95% of all digitally downloaded music was obtained illegally. This leaves only 5% of potential revenue to be image distributed between all those who play a part in today’s music culture, including the most affected group, songwriters and music publishers.

While some opponents dispute that number, few serious observers would dispute that piracy has cost the industry billions of dollars. The outcome of this piracy is more harmful than most people truly understand.  There are currently over 70,000 U. S. jobs affected and 2.7 billion dollars in earnings lost in music and related manufacturing and retail industries, according to a recent independent report. More precisely, it has been estimated that the total impact of illegal downloading and piracy equates to 12 billion dollars of direct and indirect revenue lost annually in the U.S. economy. Something must be done to protect the art, industry, and creators of music from this threat.

Because of this dilemma, my client, Save the Music America, was formed and plays a increasingly influential role in spreading the word of the harm that is caused when people download music illegally. STMA is a new non-profit organization whose mission is to educate the public and create awareness of intellectual property protection and copyright laws. The goal of STMA is to produce future generations with a conscience, preserving the arts and the constitutional rights of people within the creative industries, as well as the history of American music. On their website, STMA states its purpose as:

“…[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][to] raise money through celebrity endorsed events and media platforms and to educate the public to the impact of illegal downloading, creating public support for the cause. STMA will use PSA’s (public service announcements), print and online media, social networks, and educational media to raise awareness and demonstrate the repercussions of illegal file sharing. STMA also plans to create short documentary dramas to illustrate the very real tragedies which have struck those once who were supported by the music industry. These stories will help give faces and personal testimonies to the loss of income and career for the ‘everyday’ people who make up much of the infrastructure, such as audio technicians and marketing personnel.”

Starting next week, a series of PSAs entitled “Please Share and Download Music Responsibly” will begin airing on GAC and CMT. More than forty artists, producers, managers, songwriters, and other music industry professionals gave their time to help with these PSAs and include names like Jerod Neimann, Billy Dean, Wayne Mills Band, Julie Ingram, and Joe Bonsall just to name a few.  Here is one example of the PSA’s that will be airing:

[youtube https://www.youtube.com/watch?v=Hf7_lA-KyWE]

Mark Dryer, co-founder and head of productions for STMA, stated: “I am thrilled at the momentum we have gained this year, after talking with over 200 people about piracy everyone agrees it is a huge problem and willing to help in some way .I believe the right company will align with us to help fund our efforts very soon.  We are looking forward to the bright future to make a difference”.

Check out their website at savethemusicamerica.org and be sure to have your channel set to either CMT or GAC next week to catch the first series of PSAs released by Save the Music America!!!

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We recently wrapped up the exclusive songwriting agreement between my client, Logan Brill and Carnival Music.  Logan and her family are from the Knoxville area.  She moved here to pursue a logan1music degree at Belmont University, but ended up with a major in French and a minor in vocal performance.  Logan is writing with other Carnival talents such as David Nail, Troy Jones, Scooter Carusoe, and others.  Carnival is owned and operated, of course, by producer Frank Liddell (Miranda Lambert, Kellie Pickler, Lee Ann Womack).  Liddell recent took home the coveted Producer of the Year award from

the Academy of Country Music.  Carnival’s prolific group of writers is responsible for generating eleven number ones in the past decade, including cuts by Kenny Chesney, George Strait, Reba McEntire and the Dixie Chicks.   She has recently begun writing for her forthcoming project with producers, Matthew Miller and Oran Thorton.  Logan’s debut performance was at the Tin Roof at the head of Music Row, Nashville.  She also performed as the opening act for Edwin McCain at the Square Room in Knoxville.  Logan is set to begin extensively touring during the summer of 2012.

Follow her on Facebook and Twitter.  I expect to see great things from Logan in the near future.

Logan at the Square Room in Knoxville

written by Jeff Scheese

Law on the Row is making the jump from digital to “old skool” hardcover. Barry Neil Shrum’s article The Magical Ring of Gyges: Why Illegal Downloading is So Rampant in the Age of Cyberspace was selected by author and editor Thomas J. Hickey, responsible for the Taking Sides book series published by McGraw-Hill.  Mr Shrum’s article is set to appear in the next edition of his Taking Sides: Clashing Views in Crime and Criminology . This will be the third edition oclip_image002f Mr. Hickey’s book. The books are set up in a “point/counterpoint” debate structure, and Mr. Shrum’s article will go toe to toe with an article from famed singer Janice Ian on the issue of illegal downloading of intellectual material from the internet.

As we all know, Piracy is becoming more and more of a problem in recent years due to many advances in technology. Shrum’s article takes the side that it is human nature to steal and take the plunder if they know they can get away with it and cites the famous mythological story “The Ring of Gyges” written by Plato. However there are those that know right from wrong and will remain from engaging in the piracy. It is his hope that if people choose to respect others intellectual property by not stealing it then it will encourage others to be creative without the worries of their own works being stolen. It is a very well written article that brings a lot of truth to the issue and really digs down into people’s motivations and discouragements of music piracy. Ian’s article The Internet Debacle – An Alternative View takes the opposing view that all music should be free to download from the internet.  The books thus establishes both positions, allowing the reader to “take sides,” i.e., see both sides of the argument and can then make their own judgment about the issue at hand for themselves.

The publication date is set for October 12, 2012. You can purchase either the hardcover edition or, for those of you with a Kindle, the Kindle edition. Both will be available on Amazon.

 

Jeff_Scheese

Jeff Scheese, a senior at Belmont University which an emphasis in music business, is currently interning with Shrum & Associates.