Department of Justice, Request for Comment on BMI Consent Decree

Nearly 13,000 of you made your voices heard.

As you know, the U.S. DOJ is reviewing BMI and ASCAP’s consent decrees and is now considering an interpretation that would change the way the PROs license music co-written by writers from different PROs. Specifically, the DOJ would abandon the long-established industry practice of dealing fractionally with split works (co-written songs) in favor of a mandatory 100% licensing model.

As a songwriter, this would greatly impact your choice of collaborators, as well as which PRO pays your royalties and the value you receive for the use of your creative work. As a publisher this would also affect you, as, like songwriters, you have carefully selected BMI as your PRO. You, too, would be subject to many of the same ramifications as your writers.

The DOJ's review of this important issue continues. At the end of its invitation for public comment on November 20, BMI delivered a letter signed by nearly 13,000 of our affiliates opposing the practice of 100% licensing. To see all of the public comments submitted to the DOJ, click here.

The Facts About Fractional vs. 100% Licensing

Today, and historically, BMI and ASCAP, and the licensees who use your music, have operated under a model where each PRO collects for and pays out for only the shares of musical works each represents in its respective repertoire; this practice is known as fractional licensing. It allows a co-owner to license only their own share in a work and receive direct payment from their PRO for that share. To put it simply, we collect and pay you, as a BMI affiliate, for your share of a co-written song under our specific valuation system.

100% licensing would allow any one co-owner of a work to license 100% of the work without needing the permission of the other co-owners. Essentially, your writing partner could have 100% control over the licensing of your song, without your say, subject only to an obligation to account to you for your share of licensing revenues.

If the BMI consent decree were modified to reflect this interpretation, you would be impacted if you collaborate and co-write a song with an ASCAP writer – both creatively and financially. In a 100% licensing world, if a music user decides to license your co-written song from ASCAP and not BMI:

ASCAP could license your co-written works at ASCAP’s own rate, not BMI’s.
ASCAP could reduce your payment by its own overhead rate even before it enters BMI’s distribution system.
You could be subject to ASCAP’s distribution methodology, not BMI’s.
Your distributions could be delayed by this process.

If this interpretation were put into action, in order to avoid this and ensure that only BMI licenses your share in co-written works, you would have to collaborate only with other BMI writers (and even then, with no guarantee that they would remain at BMI). Suddenly, your choice of collaborator would no longer be determined by choosing the best writer for the job; it would be driven by the co-writer’s affiliation.

We will continue to fight for your right to be free to work with your choice of collaborator, to create the best songs possible and to be paid individually and fairly by your choice of PRO.

Thank You For Your Support

BMI’s submission period is now closed.

Thank you to all who have signed. Nearly 13,000 affiliates took part and we have let the DOJ know where you stand on this important issue.

See Songwriter Letter See Publisher Letter

November 20, 2015

Chief, Litigation III Section
Antitrust Division
U.S. Department of Justice
450 5th Street NW, Suite 4000
Washington, DC 20001

Re: Justice Department Review of the BMI and ASCAP Consent Decrees

To the Chief of the Litigation III Section:

Each of us is a songwriter and an affiliate of BMI. We truly value our association with BMI.

We write today in response to the Justice Department’s request for public comments on the issue of whether BMI and ASCAP’s consent decrees should require the PROs to license on a 100% basis, as opposed to fractionally licensing jointly-owned songs, which has been the historical industry practice. It’s important that our voices are heard, because a shift to 100% licensing would severely impact our creative freedom, our ability to choose which PRO licenses our music and, ultimately, our livelihood as songwriters.

Songwriters are the ultimate small business owners. Many of us have families that depend on the income we receive from BMI. Each of us has carefully chosen BMI as our PRO for multiple reasons: the trusted relationships we’ve developed there; the opportunities BMI provides for our music to be heard; the various creative networking opportunities BMI provides; and, at the end of the day, we like the way BMI values our music and fights for writers to get fees that reflect the fair value of our creative work.

Like most modern songwriters, we often choose to collaborate with other writers. Just recently, every song in the Top 10 on Billboard’s Pop, Country, Christian, and R&B/Hip-Hip charts was the result of collaboration. If the practice of 100% licensing is mandated by the Justice Department, our co-written works could be licensed – and we could be paid – by a PRO that represents our co-writers’ interest in our songs. The licensing fee the other PRO charges might be lower than the one BMI has negotiated or fought for in rate court, and despite our chosen affiliation, we would have to accept the lower fee. Because BMI values music differently than other PROs, we also wouldn’t be able to keep the benefits of BMI’s specific valuation system.

As a result, having our work licensed by a different organization than the one each of us has chosen could dramatically affect our income. It could delay and potentially lower our royalty payments, which would now have to flow through two PROs. Somehow we would each have to monitor what we are being paid by a PRO we have no relationship with, figure out whether they have missed any of our performances, understand how and when they will pay us, determine whether we are getting our fair shares of bonuses under the other PRO’s distribution system, and so on. For these reasons, it might no longer be financially viable for any of us to collaborate with a writer outside of BMI.

It also might not be creatively viable either. The creativity and success of any songwriter stems from being able to work with songwriters of our choosing, regardless of their PRO affiliation. If the 100% licensing model were imposed on the PROs, in order to keep our work entirely within BMI, our PRO of choice, we would have to collaborate only with fellow BMI writers. All of a sudden, our individual and careful choice of collaborator would not be driven by artistic chemistry or compatibility, but by rules imposed by the government. The 100% licensing model sounds like the government stepping into the creative process and effectively dictating our collaborators and our licensing representatives.

As we understand it, music users from radio to digital music services to local television have all traditionally paid the PROs according to their respective shares of the music. Similarly, BMI has only ever paid us for our shares of co-written songs. What the Justice Department is contemplating is in stark contrast with how the PROs have been conducting business for decades and would wreak havoc in the songwriting world as we know it.

Each of us urges you to carefully consider your decision and take into account the impact it will have not only on all songwriters across our nation, but also on our creative contributions to American culture. Without the freedom to collaborate and choose representation, the profession of songwriting is in jeopardy, as is the music that touches all of our lives.

Very truly yours,

November 20, 2015

Chief, Litigation III Section
Antitrust Division
U.S. Department of Justice
450 5th Street NW, Suite 4000
Washington, DC 20001

Re: Justice Department Review of the BMI and ASCAP Consent Decrees

To the Chief of the Litigation III Section:

Each of us is a music publisher and an affiliate of BMI. We truly value our association with BMI.

We write today in response to the Justice Department’s request for public comments on the issue of whether BMI and ASCAP’s consent decrees should require the PROs to license on a 100% basis, as opposed to fractionally licensing jointly-owned songs, which has been the historical industry practice. It’s important that our voices are heard, because a shift to 100% licensing would severely impact the creative freedom of our songwriters, our ability to choose which PRO licenses our music and, ultimately, the livelihoods of our songwriters.

Like songwriters, most publishers are small business owners. Each of us has carefully chosen BMI as our PRO for multiple reasons: the trusted relationships we’ve developed there; the opportunities BMI provides for our music to be heard; the various creative networking opportunities BMI provides; and, at the end of the day, we like the way BMI values our music and fights for writers to get fees that reflect the fair value of our creative work.

Most modern songwriters often choose to collaborate with other writers. Just recently, every song in the Top 10 on Billboard’s Pop, Country, Christian, and R&B/Hip-Hip charts was the result of collaboration. If the practice of 100% licensing is mandated by the Justice Department, any of our works co-written with any of the other PRO’s songwriters could be licensed – and we could be paid – by a PRO that represents the co-writers’ interest in our songs. The licensing fee the other PRO charges might be lower than the one BMI has negotiated or fought for in rate court, and despite our chosen affiliation, we would have to accept the lower fee. Because BMI values music differently than other PROs, we also wouldn’t be able to keep the benefits of BMI’s specific valuation system.

As a result, having the work of our writers licensed by a different organization than the one each of us has chosen could dramatically affect our income. It could delay and potentially lower our royalty payments, which would now have to flow through two PROs. Somehow we would each have to monitor what we are being paid by a PRO we have no relationship with, figure out whether they have missed any of our performances, understand how and when they will pay us, determine whether we are getting our fair shares of bonuses under the other PRO’s distribution system, and so on. For these reasons, it might no longer be financially viable for any of our writers to collaborate with a writer outside of BMI.

It also might not be creatively viable either. The creativity and success of any songwriter stems from being able to work with songwriters of their choosing, regardless of PRO affiliation. If the 100% licensing model were imposed on the PROs, in order to keep a work entirely within BMI, our PRO of choice, they would have to collaborate only with fellow BMI writers. All of a sudden, the individual and careful choice of collaborator would not be driven by artistic chemistry or compatibility, but by rules imposed by the government. The 100% licensing model sounds like the government stepping into the creative process and effectively dictating our collaborators and our licensing representatives.

Each of us urges you to carefully consider your decision and take into account the impact it will have not only on all songwriters and publishers across our nation, but also on our creative contributions to American culture. Without the freedom to collaborate and choose representation, the profession of songwriting is in jeopardy, as is the music that touches all of our lives.

Very truly yours,

Learn more about how BMI advocates for creators

BMI Members Say “No” to 100% Licensing!

Nearly 13,000 of you made your voices heard.

Thank You For Your Support

BMI Members
Say “No” to
100% Licensing!