New Songwriting Group SONA on Why They're Suing the Dept. of Justice: Op-Ed
We asked for very reasonable modifications to the consent decrees and their answer was, "No. And f--k you for asking."
The morning of Friday, July 8th, my songwriting partner Kay Hanley and I sat at my dining room table, shell-shocked, our cups of coffee going cold as we talked through what had happened earlier that week in a conference call with attorneys from the US Dept. of Justice. Not only was the requested relief from the ASCAP and BMI consent decrees unceremoniously denied, but it seemed like we were being punished for asking in the first place with an additional ruling/regulation called "100 percent licensing."
Kay and I founded our advocacy organization, SONA (Songwriters of North America), in Spring 2015 because of the consent decrees. I mean, when you find out that the government regulates your small songwriting business more strictly than it does, say, pharmaceutical companies, it's pretty shocking. Without getting too detailed on what consent decrees are, here's the basics:
- They are anti-trust measures imposed on our performance rights organizations (PROs), ASCAP and BMI
- They were put in place long before I was born
- They have not been modified to allow for fair remuneration from digital streaming services. In layman’s terms - right now, the songwriters are getting CRUSHED by minuscule streaming rates, mostly because of these things.
As a result of so many songwriters feeling the squeeze of the consent decrees' regulations, SONA joined other songwriter organizations, publishers, and our PRO’s to ask the DoJ for relief, for protection, for fairness. We asked for very reasonable modifications to the decrees. And after all the meetings and phone calls -- plus entreaties for mercy that fell JUST short of begging -- their answer was essentially this: "No. And f--k you for asking."
We knew this was coming. In the months leading up to the DoJ’s decision, we had been trying to convince Antitrust Division attorneys Kelsey Shannon and David Kully that compelling 100 percent licensing was an absolutely terrible idea. We predicted that it would undermine collaborative relationships and create an administrative nightmare which would result in diminishing financial returns for co-written material. Still, hearing the ruling on the phone (we were not provided with a written version of the ruling until it was officially released a month later on Aug. 4th) was a blow. The ruling itself seemed like an overreach. It looked like a clear gift to digital music platforms. It felt like a violation of our rights.
Immediately following our final, disappointing conference call with the DoJ, my songwriter friends and I spoke to ASCAP and BMI and asked them to challenge the ruling on our behalf. They said they would and have since made good on that promise. We spoke to our publishers, who have also promised to fight on the songwriters’ behalf. We also spoke to some very supportive members of Congress, like Doug Collins and Jerry Nadler, and they are duly outraged and stated that they will fight on the songwriters’ behalf.
We are very appreciative of the kindness and generosity of those who work on the "songwriters' behalf." We have people who fight on the songwriters’ behalf, negotiate on the songwriters’ behalf, lobby on the songwriters’ behalf, speak on the songwriters’ behalf. But this is how songwriters ended up disconnected and relegated to cheering from the sidelines on issues which concern us directly. We need to come out from behind the protective bodies of our PROs, publishers, and managers and speak up for ourselves. We need to remind the public that there are living, breathing, working songwriters who will be deeply affected by the DoJ’s actions.
How do we do that?
The kernel of the idea for suing the DoJ lawyers emerged at my living room table. Look, clearly we’re songwriters, not attorneys. I’ve never sued or been sued by anyone or anything in my life. I’ve had a wonderful entertainment lawyer (Jaimie Roberts) handle my deals and contracts for as long as I've been in the business and he knows first hand how little interest I've had in the legal system.
Until now. Because a courtroom is where you go when you feel like you’ve been wronged, right?
Kay and I batted around the idea of suing the government. We talked about doing a Kickstarter or Pledge Music campaign to fund our search for a constitutional lawyer. It sounded so scrappy and punk rock. "The Songwriters Sue the Department of Justice!" Like, can we even do that?
Turns out, we can. SONA has a friend and legal advisor who is just as fierce as the idea demanded. Dina LaPolt (I call her "the Kraken") is a ballsy, street-fighting attorney-to-the-rockstars who was as furious about the DoJ’s ruling as we were. When we brought the idea of SONA suing the DoJ to her, she literally jumped out of her chair, stuck her fist in the air, and said, “F--K, YES!"
The last six weeks has been an avalanche of action and preparation; Dina found a litigation firm, Gerard Fox Law, who took on our case pro bono. We also have a devastatingly smart and experienced team of legal advisors from our industry: Dina, legendary music attorney Jay Cooper, and our secret weapon/game changer, Jacqueline Charlesworth, who personally wrote the definitive and widely acclaimed report on the current state of copyright for the US Copyright Office. A few heavy-hitting songwriter friends, Pam Sheyne and Tom Kelly, have bravely stepped up to be named as individual plaintiffs in the lawsuit. We are ready to win.
For as punk rock as we feel, the complaint our legal team crafted is quite elegant and simple. It’s an administrative claim based on how individual songwriters will be adversely financially affected should the ruling be codified and enforced. After all the legal research, it turns out that the ruling is in fact as bad as we had originally predicted. The DoJ’s misguided interpretation of the consent decrees will cost individual songwriters money, destroy our collaborative relationships and create havoc within the licensing ecosystem. We’re more confident than ever that we’re on the right side of this.
SONA’s legal team filed the suit yesterday, Sept. 13, 2016 at 12:00 p.m. EDT in Washington, DC.
The songwriters asked for relief and got a solid wrist slap in response. Now we’re slapping back.
Wish us luck.
Michelle Lewis is co-founder of the Songwriters of North America and has written songs for Cher and Little Mix and is a full-time composer for Disney.