Department Of Justice To Deny Consent Decree Amendment
SOMA contends that the majority of commercially successful songs are co-writes by authors affiliated with different performance rights organizations, and requiring full-work, or 100-percent, licensing from one PRO will negatively affect songwriters' ability to license their songs in the marketplace. The lawsuit stated that the 100-percent ruling is "an illegitimate assertion of agency power in gross violation of plaintiffs’ due process rights, copyright interests, and freedom of contract, and needs to be set aside."
“Songwriters and composers have been standing on the sidelines for way too long on an issue that directly affects their livelihoods," says attorney Dina LaPolt who, along with Jay Cooper, Esq., advises SONA. "It’s time for them to take matters into their own hands.”
President and CEO of The Recording Academy
““The creative community must use every weapon in its arsenal to combat the decision by DOJ to upend songwriter control of their works,," The Recording Academy's president and ceo Neil Portnow, in a statement on the news. "We support today’s legal action by SONA and, combined with other efforts in every branch of government, we hope to overturn this harmful interpretation of the consent decrees.”
ASCAP, BMI Announce Plans for Bilateral Fight Against Dept. of Justice Decision
The three individual litigant songwriters are SONA executive director Michelle Lewis (who has written for Cher, Little Mix and is a full-time composer for Disney, and affiliated with ASCAP), Pam Sheyne (a writer for Christina Aguilera, Jessica Simpson, Seal, Backstreet Boys and currently without a U.S. PRO) and Tom Kelly (Madonna, Whitney Houston, Cyndi Lauper, Phil Collins, The Pretenders and affiliated with Global Music Rights).
The lawsuit specifically cites Sheyne's plight who, because of the 100 - percent mandate, has had difficulty changing PROs:
Plaintiffs are being, and will continue to be, significantly harmed by the 100-percent Mandate. The experience of plaintiff Sheyne is illustrative. Sheyne was a long-time member of BMI until recently, when she determined it would be in her interest to leave BMI and join SESAC—in part because SESAC is not itself subject to the 100-percent Mandate. By any standard, Sheyne is a highly successful songwriter, and, on information and belief, SESAC would like to sign her. Although Sheyne provided notice of her resignation to BMI, she has not yet been able to join SESAC due to the fact that some of her most valuable songs are co-written by ASCAP and BMI writers, and are thus subject to 100-percent licensing. Because SESAC may not be able to collect for Sheyne’s shares (which will be paid to ASCAP or BMI under the 100-percent rule), SESAC faces significant risk in providing Sheyne with what would otherwise be a typical advance against her future royalties for the performance of her works. So not only is Sheyne without a PRO to license her performance rights at the moment, she has also been deprived of a critical income stream.
In sum, the 100-percent Mandate harms plaintiffs by, among other things:
- Diminishing the value of their copyrighted musical works;
- Abrogating the rights of songwriters and composers under copyright law to divide and separately administer the copyright interests in the works they create;
- Eliminating songwriters’ and composers’ ability to choose the PRO that will administer their public performance rights;
- Undermining the legal and practical ability of songwriters and composers to exploit their works in the marketplace;
- Negating songwriters’ and composers’ ability to be notified of, and to receive accountings and collect payment for, the use of their works;
- Interfering with and negating songwriters’ and composers’ existing and future contractual and business relationships marketplace;
- Impeding songwriters’ and composers’ ability to collaborate with other creators of music to create new works;
- Subjecting songwriters and composers to unlawful, arbitrary, and capricious government action; and
- Undermining songwriters’ and composers’ ability to make a living at their profession.
Representing the songwriters are Gerard Fox and Steven Wallach of Gerard Fox Law P.C.. Fox, who are based in Los Angeles and represented the Isley Brothers when they successfully sued Michael Bolton for copyright infringement for their song "Love is a Wonderful Thing."
"When the DoJ ruling came down," Fox says, "I knew I had to jump in to help songwriters rectify this wrongful and egregious mandate."
The litigants have also brought on Jacqueline C. Charlesworth, former general counsel and associate register of copyrights for the United States Copyright Office as expert advisor.
?In early August, both BMI and ASCAP announced their intentions to fight the DoJ's ruling and employed a bilateral strategy where by BMI will take legal action by filing a memorandum with its rate court to challenge the DoJ’s interpretation; and ASCAP would take the lead in pursuing legislative support for fractional licensing.