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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Shrum & Associates’ very own namesake, Barry Neil Shrum, Esquire, was recently appointed to serve as general counsel for the Nashville Songwriters’ Hall of Fame, and to serve as a non-voting member of its Board of Directors.  The Nashville Songwriters Hall of Fame Foundation (NaSHOF) is a non-profit organization dedicated to honoring and preserving the songwriting legacy that is uniquely associated with the Nashville music community. Its purpose is to educate, celebrate and archive the achievements and contributions made by members of the Nashville Songwriters Hall of Fame to the world. 

Induction into the Nashville Songwriters Hall of Fame (NaSHOF) is one of the nation’s most highly prized songwriting honors. Since 1970, nearly 200 of Music City’s top tunesmiths from all genres of music have been enshrined by the non-profit organization, which honors Nashville’s rich legacy of songwriting excellence through preservation, celebration and education. In 2013, NaSHOF realized a long-held dream with the opening of its Hall of Fame Gallery, located in downtown Nashville on the first floor of the Music City Center (201Image result for nashville songwriters hall of fame 5th Avenue South).

NaSHOF chairman of the Board, Patrick (“Pat”) J. Alger III (2010 NaHOF inductee), described Mr. Shrum as a perfect fit:

The Board of the Nashville Songwriters Foundation has patiently and cautiously been searching for a replacement for our longtime legal counsel [David Maddox] who recently retired. As Chairman and the de facto representative that bears the responsibility for our actions and decisions it is especially important to me to find the right candidate. I believe we got very fortunate when Barry Shrum expressed interest in filling that vacancy. He has the right combination of knowledge, experience and personality to fit the bill precisely! We welcome him enthusiastically to our team.

Mr. Shrum expressed equal admiration for his new chairman and for the organization:

I was honored when Mr. Alger approached me about the position.  Pat is in the pantheon of songwriting gods here in Nashville and the writer of one of my favorite Garth Brooks’ songs, Unanswered Prayers.  I am looking forward to serving under his considered and kind leadership.  I can’t think of anything I would rather be remembered for more so than protecting and honoring the rights of such great songwriters like Pat Alger and the other 200 or so inductees.

Mark Ford, Executive Director of the NaSHOF, expressed excitement about the appointment:

I’m excited that Barry has joined the board of the Nashville Songwriters Hall of Fame.  His knowledge of copyrights and their creators, combined with his years of experience in the music industry, are a great fit for our organization.  He’s a pleasure to be around, a delight to work with and someone who will definitely stand shoulder-to-shoulder with us as we strive to honor Nashville’s rich legacy of songwriting excellence.

NaSHOF is currently producing a series of critically-acclaimed weekly television series called The Songwriters which features engaging conversations with NaSHOF inductees, including Gary Burr, Bill Anderson, Steve Cropper, Ray Stevens and many others.  The inaugural season is hosted by NaHOF Board member, Ken Paulson, and is produced at MTSU’s College of Media and Entertainment.  The shows airs three times weekly on Nashville Public Television as well in 10 other markets across the country.

Mr. Shrum accepted the position and took on the role in December of 2017.

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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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by Erin Thiele and Morgan Wisted

           NASHVILLE, TENNESSEE.  Casey Dienel is suing Justin Bieber and his producer, Sonny Moore, p/k/a Skrillex, (among other defendants) for copyright infringement involving her song, Ring the Bell, from which she claims the Bieb stole musical riffs for his hit Sorry.  She claims that the vocal riff she created in 2014 is unique and is the musical hook of her original composition.  Here a link to the complaint, filed in the Middle District Federal court in Nashville, and styled Casey Dienel v. Warner-Tamerlane Publishing et al. So, I guess the question of the day is, “Should Justin Bieber be ‘sorry’ for Sorry?  

            Let’s take a breathe and consider whether, in fact, there is something to apologize for!  Dienel’s stage name is White Hinderland.  In her complaint, Dienel claims that Bieber and his producer, Skrillex, stole part of her song Ring the Bell that was released in 2014.  So the real question might be, “What legal elements of copyright infringement will be relevant to determine this issue?”

            Basically, infringement of song occurs when someone other than the author takes any part of that song without permission, provided that what is allegedly taken is entitled to copyright protection. The elements of copyright infringement, simply stated, are

  1.  Ownership of a valid copyright;
  2.  Access; and
  3. Misappropriation.  

   That may sound easy enough, but proving each of those elements in a court of law can get a little tricky.

OWNERSHIP

            Ownership of a copyright is easy enough to prove.  Do you have a copyright registration certificate?  If so, the court will give you a “presumption,” i.e., it will assume you own the copyright and you don’t have to prove anything else.  That shifts the burden of proof to the defendant, who then is required to present evidence that you do not own the copyright. Since the devil is in the details of the remaining two elements, often the ownership element of the case is “stipulated,” or agreed upon by the parties before they ever get to court.

ACCESS

            As for the second element, “access,” the “trier of fact” (either the judge or the jury – we’ll continue to call this the “court”) will attempt to determine whether the person allegedly infringing the song had access to the original song, the rationale being that if the person allegedly stealing material does not know the song exists, there is no way it can be stolen.  So this element is pretty critical:  if the alleged infringer has never heard the song, it’s likely the song had no influence on his creation.  That’s a principal called simultaneous or independent creation.  That principal is used to prove not only access, but substantial similarity as well.  How does all of this add up for the Bieb?  As with all cases, the opposing parties are making different claims:

            Specifically, Dienel alleges that Bieber infringed a four-note riff at the beginning of her song Ring the Bell, using the same melodic riff in Sorry. In fact, she believes that the two riffs are so similar that the only possible conclusion that can be reached is that the Bieb and company copied the riff verbatim and used it throughout the entirety of the song Sorry.  Listen for yourself:

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            Few responses have been generated by Bieber, Skrillex and the opposing party.  The only ripple from that camp regarding the issue occurred, of course, in social media, in a tweet by Skrillex, who said point blank: 

SORRY, but we didn’t steal this.

To that tweet, Skrillex attached a quickly constructed and attached the following video of how he produced that riff in Bieber’s song:

Skrillex Video on Twitter Feed 

            Keep in mind, of course, that this video produced by Skrillex may or may not have any legal effect, since it was produced by one of the parties after the fact.  Remember that important 2nd element of access?  Bieber and Skrillex claim that they never heard of the artist “White Hinderland” prior to her making these allegations, and, of course, claim that they never heard the song that they have allegedly infringed.  In other words, they are claiming that they did not have access to “Ring the Bell.”  If that claim is true, then Bieber should be sorry for nothing. On the other hand, if Ring the Bell indeed was the influence for Sorry, then it might be “too late to say I’m sorry” (pun, but no infringement intended) – only a number in the checkbook will do.

   But there are always two sides to any legal argument, and we shouldn’t just take Bieber at his word simply because he’s the Bieb.  In her complaint, Dienel alleges that she wrote the original song in 2014, and that Ring the Bell was the first song released off of her third album Baby, which achieved success on her label, Dead Oceans, a subsidiary of the group Secretly Canadian.  The song has, in fact, been streamed almost a million times.  In addition, the song received critical acclaim in many industry media outlets, including one mention in Rolling Stones magazine, which, in the February 13, 2014 edition, listed it as one of their “favorite” songs.  It just so happens that this edition of Rolling Stones also contained a feature article about none other than Skrillex. Those facts can be easily verified.  So, this little bit of chronology puts a bit of a damper on the defendants’ “never heard of her” arguments in regard to access in that a court could very easily determine that claim to be disingenuous and self-serving.

            For her part, Dienel’s social media campaign is in full swing as well and is standing on her arguments that Bieber and Skrillex had plenty of access to her work.  In her social media buzz, she states her desire that Bieber, as a fellow creator, should have just obtained a license to sample her riff.  Dienel has been quoted numerous times stating, “Like most artists that sample music, Bieber could have easily licensed my song for use in Sorry, but he chose not to contact me.”

            So, the element of “access” will turn out to be a dog fight, as it usually does, with both parties presenting their respective opinions.

MISAPPROPRIATION

            The third element the court will examine is whether the parts of the song allegedly stolen are entitled to copyright protection at all, in this case the four-note riff.  That’s called misappropriation.   The rationale is simple:  in order for someone to collect money damages for infringement of a creative work, the work has to be entitled to exclusive protection.

              More specifically, in order for the riff to be entitled to copyright protection, it must possess a “modicum” of creativity, according to the Supreme Court.   This is not a high standard to meet.  Is four notes sufficient to meet the Supreme’s criteria for creativity?  At least one court, the 6th Circuit has found that, in cases of a sound recording copyright, even three notes can be sufficient.  See,  Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).  That’s not the always the last word of course, but if a court determines the requisite amount of creativity is present in the four notes, then the riff most certainly could be misappropriated.   One interesting factoid here is the this case is being tried in the Middle District Court of Tennessee, which is governed on appeal by the 6th Circuit, meaning that it must follow the opinions of that higher court.  Incidentally, Dienel is claiming infringement of both her sound recording and her musical composition, so this decision will be extremely relevant to the outcome.

   Another factor considered when looking at misappropriation is how similar the two competing works are.  The courts sometimes refer to this as substantial similarity.   Once access is established, substantial similarity is a threshold beyond where that copying wrongfully appropriates the plaintiff’s protected expression.   Courts look at this subelement both qualitatively and quantitatively to determine if the copyright is “striking” or “substantial” – something beyond a so-called “de minimis” use – but it is important to realize that such similarity can exist where the portion of the original work copied is small, but nonetheless constitutes the “heart” of the work, as Dienel is claiming here.

CONCLUSION

            So there are some important take aways for artists, songwriters, and the minions that love them:  (1)  NO ACCESS – NO INFRINGEMENT.  What someone doesn’t know won’t hurt him, literally, because there is no access;  (2) DON’T RIP SAMPLES.  If Bieber’s claim is true – that did not steal the riff but rather created it on his own – then it may be time for Dienel to say Sorry.  But if Dienel can prove out the claims in her complaint, she will have a pretty good defense against the Bieb’s denial;  (3) IF YOU HEAR SOMETHING AND SAY “LOVE IT, GOT TO USE IT,” GET A LICENSE.  Always, when in doubt, get a license if you are sampling a sound recording, particularly if you live in the jurisdictions of the 6th Circuit.  If Bieber and Skrillex did sample the riff, but had obtained a license, then there would be no lawsuit.  It’s that simple.  Licenses are always cheaper than defending a copyright infringement action in Federal court!

            Is this a case of monkey (Bieb) see, monkey (Bieb) does? (Yes, I had to do it!).  Or is this more a case where the monkey (Bieb) “hears no evil, does no evil”?  This lawsuit is why I love copyright law so much:  it has many angles and there are several ways to look at it.  Lawsuits always have a least two sides!  While it may be easy to jump on the bandwagon of the underdog, it has yet to be determined whether Bieber owes Dienel an apology (and tack on a few million), or does she owe him one?  What do you think?  Email us at info@shrumlaw.com or Tweet me @bshrum.

Erin Theile    

Written by guest bloggers, Erin Thiele and Morgan Wisted, edited by BNSesq.  Erin and Morgan are students a Belmont Unversity’s Mike Curb School of Entertainment and Music Business program and intern at Shrum & Associates.


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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!

I can hear the late Casey Kasem’s lead in on Top 40 right now:  “At number 9 this week is a city that is more well known for producing top ten hits from country artists than for reaching the top ten itself:  Coming in one spot above Rome, Nashville is no. 9 on Lonely Planet’s Top 25 Destinations in the World for 2016.”

Music City made the list in Lonely Planet’s book published in October called Best Travel in 2016, available for purchase now.  . Here is the complete list of the top ten:

  1. Kotor, Montenegro
  2. Quito, Ecuador
  3. Dublin
  4. George Town, Malaysia
  5. Rotterdam, the Netherlands
  6. Mumbai, India
  7. Fremantle, Australia
  8. Manchester, U.K.
  9. Nashville
  10. Rome

Nashville also made Business Insider’s list of the “Hottest U.S. Cities for 2016,” sharing top honors with the likes of Austin, Texas, Cambridge, Massachusetts and Atlanta, Georgia.  This should come as no big surprise for those of us are not transplants, as we have come to appreciate the finer things that Nashville has to offer.  From its world-renowned full scale reproduction of the Classical Parthenon, to the musically famous RCA Studio B, Quonset Hut, Tootsie’s, Grand Ole Opry and Ryman Auditorium, all the way up to the Bat Building.  The city has always had its charm.  That charm was somewhat locally contained until the ABC drama series Nashville begin airing a few years ago (thanks to our friends over at the Music City Music Council).  Then all hell broke loose.  After that, the food critic for the New York Times, penned her widely read article in August of this year, 36 Hours in Nashville: The Food Scene.  TripAdvisor also identified Nashville on one of the US cities with the greatest increase in interest from international travelers.  Suddenly, Nashville is busting at the seams and everyone wants a piece of the moon pie,  You can view many of Nashville’s recent accolades at the Visit Music City website maintained by the Nashville Convention and Visitors Corp, which produced the following video:

 

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

By Jeff Scheese* (with Barry Neil Shrum, Esq.)

Great news for those of you who listen to The Music Row Show on WLAC Nashville! The show features my clients, Scott Southworth and Heino Moeller, who recently announced that starting June 3rd the weekly radio program will make the Photo2leap to WSM, the 86-year-old 650 AM station known fondly as the “Air Castle of the South.” Along with this change on the radio “dial”, the team also announced an agreement with BlueHighways TV (responsible for programs such as American JukeBox Theater and Dry Creek) who plans to film the program and begin airing the show on its cable network in July.

“We can’t even express how excited we are to bring The Music Row Show to WSM and BlueHighways TV!  It’s an honor to be even a small part of WSM’s 86 year history and its musical legacy,” says co-host Southworth. Moeller added, “…to become a member of the BlueHighways TV family and its commitment to celebrating American music, art and culture is more than Scott and I ever imagined when we started the show.”

For those of you unfamiliar with The Music Row Show it is a weekly, two-hour radio show that airs every Sunday. Southworth and Moeller host the program while interviewing guests, listening to performances, and informing viewers on the happenings of the Music Row community. The Music Row Show began airing in November of 2007, and has since gained mass popularity and established an international fan base. This popularity has been attracting an array of guests that include some of the music industry’s most notable decisionmakers and recording artists, including legends Dolly Parton and Vince Gill.

WSM, the Air Castle of the South, has a rich history. It is known worldwide as a leader in the country radio genre. Its first program, WSM Barn Dance, began airing in 1925. The Barn Dance was a weekly Saturday night program at the Grand Ole Opry, WSM has been credited with shaping Nashville into the recording industry capital it is today. The stations’ historic, massive antenna, located in the suburb of Brentwood, gives it one of the largest footprints in the country. This extensive reach gave WSM a massive audience, giving many musicalPhoto1 acts from around the country incentive to come to Nashville in hopes of getting their performances played on the legendary station. The term “Music City USA” was coined by one of the stations disc jockeys, David Cobb, and since then the name has been adopted as Nashville’s unofficial nickname.

BlueHighways, based in Hendersonville, Tennessee, was started by Stan Hitchcock in 2009. It is an independent network celebrating original American roots music, culture, and events. Hitchcock is no stranger to running successful networks, as he founded Country Music Television (CMT) in 1984. BlueHighways, Hitchcock’s 3rd such venture, features shows such as Cooking Outdoors, Mule Training, Your Home Studio, and a slew of music programming. It’s goal is to offer a window into the experiences, music, neighborhoods, art, festivals and celebrations that define America’s vast culture as well as character.

Tom English, the General Manager for 650 AM WSM expressed his excitement for the duo to join his station:

Scott and Heino have done an amazing job building such a loyal international fan base for The Music Row Show. We are very proud to now bring the duo to our legendary airwaves and introduce this video version of the show exclusively on BlueHighways TV.”

Stan Hitchcock, Chairman and CEO of BlueHighways TV is also eager for the two to get started:

Our viewers will love this video version of Scott and Heino’s The Music Row Show. Their entertaining delivery and keen knowledge of the music industry will connect with the BlueHighways TV audience. We are also pleased to partner with WSM, as it brings strong credentials to our television version of this popular radio program.”

In reference to the deal, Scott and Heino added:

Barry Shrum has been instrumental in navigating us through the completely new waters as far as television negotiations. Not only did he go through the contract line by line with us (translating to english), he also helped us change some of the sections to take into account upcoming technology for future protection. There is no "Fear Factor" as we take The Music Row Show to a new medium with Barry in our corner!

Catch The Music Row Show on Sunday evenings on 650 AM WSM from 7-9 PM CT starting June 3.

Jeff_Scheese

 

*Hey folks, Jeff Scheese here just wanted to introduce myself. I’m currently enjoying the summer in Nashville before my Senior year at Belmont University. I’m a Music Business major currently and loving the realm of opportunities the city of Nashville offers. Upon graduation I plan on attending Vanderbilt’s Law School to further my education on the legal side of the music business. My ultimate goal is to become a lawyer in the music industry, mainly on the litigation side of things. I’m currently interning with Barry Neil Shrum, Entertainment Attorney, at his location in downtown Nashville. I’m learning a lot about the industry and enjoying my experience so far. Look forward to more pieces from me in the future.

Source:

Harr, Dan. “The Music Row Show Finds New Home on 650 AM WSM & BlueHighways TV”. MusicNewsNashville.com. May 16, 2012. http://www.musicnewsnashville.com/the-music-row-show-finds-new-home-on-650-am-wsm-bluehighways-tv