Loretta Lynch Is No Fan Of The Coal Miner’s Daughter

How last week’s DOJ ruling turned the music industry upside down

Last week, the U. S. Department Of Justice left the music industry slack jawed by not only holding up the Depression/WWII era regulations that have hogtied songwriters, but by also adding new regulations requiring PROs (Performing Rights Organizations, i.e. ASCAP, BMI) to engage in 100% licensing.

So what the hell does all this mean? I’m still figuring it out myself. While running the risk of oversimplification, I’m going to boil this down with some farm logic. The gravity of this ruling should be understood by creators and entrepreneurs of all stripes, not just songwriters and music industry folks.

Every songwriter registers with a PRO. That’s how we get paid. PROs keep track of when and where a song is played so that the songwriter(s) can be compensated. This is not the best analogy, but think of them as Nielsen ratings for music.

Let’s say a song is written by two writers from two different PROs. Until this ruling, each writer would have 50% of the writer’s share with his/her respective PRO. When the song is played on the various mediums, BMI keeps up with their writer’s share and ASCAP keeps up with theirs. Clean. Easy. Well, as clean and easy as things can be in the music industry.

Now, after the ruling, there is no split of the licensing between PROs. One PRO holds 100% of the licensing. So what about the other songwriter? How does he/she get paid? Good question. It’s not like ASCAP has a database on a writer with BMI. They are separate entities. That’s the point.

Are songwriters now limited to what they can create by only writing with writers who share their PRO? Do you know how many hit songs have been written by writers on different PROs? A lot. I think the scientific term is a shit ton.

The reason songwriters and advocates went up to D.C. in the first place was to request changes to the WWII era consent decrees that have restricted songwriters from pulling their songs from streaming services such as Pandora and Spotify. So not only did the D.O.J. refuse to make changes, it added insult to injury by requiring 100% licensing.

For those of you who may not know, Nashville is a co-write town. The entire industry has been built off of two or more people getting in a room and creating magic. This ruling has flipped Music City on its head.

Look, streaming has already drastically diminished songwriter’s incomes. And streaming is not going away. Some will posit that the argument from songwriters is the equivalent of the buggy whip lobby trying to shut down the automobile industry or the taxi lobby vs. Uber.

This isn’t about songwriters being stuck in the CD era — they aren’t fighting to shut down streaming services. As the owners of intellectual property, they just want their rights as stated in the United States Constitution to have a choice in how their work is brought to market. In other words, if they don’t want their songs on streaming services, they shouldn’t be forced to have them there. This is a property rights issue. Period.

So what does all this mean? What is going to happen to songwriters? What are the work-arounds? Is this fight over? What incentive would the Department Of Justice have in making the 100% licensing ruling? Is this an attempt to dissolve PROs at the behest of Big Tech?

Stay tuned to Left Of Nashville as I fire up the podcast, mid-season, to try to find the answers.

I didn’t want to get into government issues or politics in my podcast. I just want to make music and document the process on Left Of Nashville. We, as songwriters, just want to create and have it presented fairly in the marketplace.

So that is exactly why I am doing this.

At first glance, this ruling on the week before Independence Day, has the appearance of an Orwellian nightmare. As creators and entrepreneurs, we all have to get involved.

Stay tuned.

Brandon Barnett is a singer-songwriter from Jackson, Tennessee. He is also the creator of Left Of Nashville, a documentary podcast highlighting the ups and downs in attempting to have a career in music. @leftofnashville on Twitter and Instagram.