Imagine how different the world would sound if songwriters didn’t collaborate. Holland-Dozier-Holland wouldn’t have given us “Stop! In the Name of Love.” Elton John and Bernie Taupin wouldn’t have written “Your Song.” John Legend, Common and Che Smith wouldn’t have moved us with “Glory,” and the Lennon-McCartney catalog wouldn’t exist. The list goes on. In 2015 alone, 90 of the Billboard Top 100 songs were written by more than one writer.
As a songwriter, I value every chance I get to work with other music creators. We each bring our own triumphs and failures to the writing session, our own stories of love lost and found. Together, if we’re able to distill our personal experiences into something universal, it just may become a hit song.
That’s why I’m deeply concerned by a new requirement the Department of Justice (DOJ) is considering that would limit my freedom to collaborate with other songwriters and would damage music creators both creatively and financially.
This new requirement concerns a practice known as “fractional share licensing.” All it means is that when I write a song with multiple co-writers, we each license the percentage that we own – it could be half, one-third, whatever – either directly through a music publisher, or through the performance rights organization (PRO) that represents us. When that music gets performed, our shares of the royalties are collected and distributed back to us through our publisher or PRO. It has worked this way for decades.
Licensing music is a complicated business, so it’s nice to know that my share of the royalty pot – however small or large – is getting paid by an organization I trust, on a schedule I’ve agreed to, regardless of who represents my collaborators. The current system works so that businesses that play music – streaming services, radio and TV stations, music venues, etc. – work with the songwriters’ respective PROs, which make sure that we’re getting the proper, agreed-upon royalties.
But the Department of Justice is now considering whether to require the nation’s two largest PROs, ASCAP and BMI, to license all the songs in their respective repertoires on a 100 percent basis.
So what exactly would it mean for songwriters?
For starters, less control over how our work is licensed.
I belong to ASCAP, but I collaborate with cowriters represented by different PROs all the time. Under 100 percent licensing, any business that wants to use one of our songs would only need an agreement with one of the major PROs to legally perform the song, and that PRO would bear responsibility for paying all of the songwriters, even the ones it doesn’t represent.
That adds an uncomfortable new level of risk to collaborating with writers outside of your own PRO.
By doing so, a songwriter like me could get stuck being paid by a PRO I didn’t choose, on terms I didn’t agree to, at potentially even lower rates than the ones paid by ASCAP, my PRO. And that’s the best case scenario. Because, who knows how long it might take the “first to license” PRO to find and pay me and all the other writers it doesn’t represent – writers who rely on this kind of income to support their families.
Fortunately, the head of the U.S. Copyright Office, Maria Pallante, recently came out against requiring 100 percent licensing, writing: “Such an approach would seemingly vitiate important principles of copyright law, interfere with creative collaborations among songwriters, negate private contracts, and impermissibly expand the reach of the consent decrees” (her last point is in reference to the federal agreements that regulate how ASCAP and BMI conduct business).
But the big businesses that use music are undeterred in their push for this ill-advised change in policy. After all, they have a lot to potentially gain for their investors and shareholders.
The vast majority of hit songs today have multiple writers. And under a 100 percent licensing requirement, so long as one of the rights holders is represented by ASCAP or BMI, these companies could simply license these works through whichever government-regulated PRO has the cheapest rate instead of negotiating with rights holders in the free market.
In that sense, the DOJ’s new 100 percent licensing requirement would be the worst kind of government overreach – one that’s likely to devastate hardworking music creators while rewarding big media companies. While I understand that the DOJ is considering several important changes that would be a big step toward modernizing the decades-old consent decrees that govern the PROs, the 100 percent licensing requirement would be a big step backwards.
As songwriters, we shouldn’t be required to choose between our creative freedom and our livelihood.
MoZella is an American songwriter and recording artist and has co-written countless top hits including Miley Cyrus’ “Wrecking Ball” and One Direction’s “Perfect.”