DOJ Decision Disproportionately Affects Songwriters

Songwriters Ask 2nd Circ. to Uphold Fractional Licensing
– Law360

Manatt's Lisl Dunlop, co-chair of the firm's antitrust and competition practice, was quoted in a Law360 article about the ongoing dispute over a new interpretation of World War II-era antitrust consent decrees. The largest nonprofit trade association for songwriters worldwide, Nashville Songwriters Association International, has now filed an amicus brief, urging the Second Circuit to uphold a New York federal court’s decision in favor of Broadcast Music Inc. The songwriters association joined thousands of individuals who have voiced opposition to the government’s interpretation, claiming it panders to consumers and threatens musicians’ revenues.
Under the current licensing system, performance rights organizations can collect and pay royalties for public performances of collaborative works. The government is considering enforcing the consent decrees in a way that would allow a co-owner of the work to license the entire work without the other co-owners’ approval.
After a two-year review, the Department of Justice also reviewed decrees at the request of BMI and the American Society of Composers, Authors and Publishers. It concluded that when organizations cannot offer music users a full license, those works are ineligible for licensing by ASCAP or BMI, and confirmed that the agreements require works to be licensed in full instead of only partially.
“I think that professional songwriters are disproportionately affected by the DOJ interpretation,” said Dunlop. “Songwriters need the support of music publishers, who also take their share. And recording artists who also write songs have other, more lucrative, sources of income. Co-written works are the norm today, and the interpretation could leave some songwriters out in the cold.”
The amicus brief was written and filed on behalf of Nashville Songwriters Association International by Dunlop, and by entertainment and media partner Kenneth Kaufman, appellate co-chair Benjamin Shatz and litigation associate Shoshana Speiser.