The latest on SONA's lawsuit against the DOJ.
I’m happy here on planet digital where I get all the songs I want whenever I want them, wherever I go. I simply want my community to have as healthy an earning trajectory as the CEOs and label heads who are running their companies on the backs of the creators who write the songs that make their business possible.
SONA member Jud Friedman is a songwriter advocate and a multiple Oscar/GRAMMY/Golden Globe nominated writer of songs such as “Run to You” for Whitney Houston (from “The Bodyguard”), “I Don’t Have The Heart” for James Ingram and many other hits.
Recently Jud has been hard at work building a new streaming app called qWaqq which is dedicated to the “hidden gem” songs of great songwriters and which we here at SONA think is very cool: qWaqq.com.
Here is a quick video on the “The Story Of qWaqq”: https://youtu.be/Kxb4pHCmsCY
Or for those of you who prefer words to images, here’s how Jud explains the app:
“As you know, the current music streaming world and outdated legal and music business framework make it challenging for all creators. But the royalty model used by current streaming services is particularly unfair to songwriters. We only get paid a tiny percentage of streaming royalties, while almost every penny goes to record companies and artists. We songwriters need a new strategy.
That’s why I came up with the idea for qWaqq. I had just signed a worldwide publishing deal and was going through a bunch of my old songs so I could give my new publisher some guidelines. I had expected to hate all the old stuff and the stupid reverb on the vocals, wack drum sounds, etc. But actually I found a lot of great songs that had somehow slipped through the cracks, songs that I thought needed to be heard.
Then it hit me – we ALL have tons of hidden gem/shoulda-been-a-hit demos sitting in boxes in our garages and gathering dust. I decided I wanted to put out as many of them as possible - and I knew I had to do it by creating a streaming app, the most popular way we all listen to music.
Hence the core ideas of qWaqq:
1. Create a new and badly needed income stream for songwriters (and writer/artists) by streaming our old (and new!) demos directly to consumers. These demos are already existing assets which no one has to lift a finger or spend a penny to create. And they are not making any money for anyone.
2. Unlike other streaming services which award virtually every penny in royalties to record companies and artists, qWaqq will pay 100% of royalties to songwriters and publishers as the owners of the “hidden gem” song copyrights and sound recordings.
3. I love songwriters and qWaqq is a songwriter advocacy app! In a world in which songwriters aren't given enough credit, qWaqq will provide some much needed recognition, a little wizards-behind-the-curtain/mini-rock-star panache. :)
We recommend that you visit www.qWaqq.com for more info and to sign up.
A few weeks ago, a curious situation came to our attention. Sony’s record label, Sony Music Entertainment has taken a seat in the negotiations of Copyright Royalty Board, continuing to push for more favorable conditions while every other major has already settled. SONA Executive Director, Michelle Lewis wrote a letter to SME’s Doug Morris, asking for answers to our many important questions.
On July 5 and 7, 2016, SONA members participated in conference calls with the US Department of Justice to hear a statement regarding the Antitrust Division’s ruling on their 100% licensing scheme. During subsequent Q&A sessions, songwriter organizations were invited to register questions or concerns by submitting comments to the DOJ. We appreciate the opportunity to do so and because the DOJ has taken the unusual step of keeping the comment process private, we are releasing our statement to ensure that SONA’s opinion is a matter of public record.
Here at SONA, we are all songwriters. What this means is that we are a community of individual small business owners who rely on income derived from the compositions we write and then license to a patchwork of outlets from radio stations to department stores who play our songs.
You may be surprised to learn that the value of a songwriter’s work is regulated by the US government and has been for over 75 years. As part of an antitrust settlement in 1941, the US Department Of Justice enacted rules of engagement between songwriters and licensors called “consent decrees”, ostensibly to protect the fledging broadcast industry from price gouging by the dudes who licensed all the music, the performing rights organizations ASCAP + BMI. The consent decrees made a lot of sense at the time seeing as the PRO’s were behaving in a way that was, shall we say, monopoly-ish, but they were certainly not meant as a forever remedy to a temporary market problem. Yet here we are. To this very day, Congress, through the consent decrees sets the rate at which I am compelled to license my songs, which is predictably below market rate because, duh, government.
My use of the word “compelled” just then was not decorative. Under ASCAP’s consent decree, I cannot negotiate and I cannot say no. I am literally legally compelled to grant licenses to anyone who asks. One time, I discovered that conservative crybaby, Glen Beck was using a song on his radio show by my band Letters To Cleo and I was all, “Hell, no!” But hey, guess what, SURPRISE! Ain’t my call.
Over the years, ASCAP + BMI songwriters have made a fragile peace with the consent decrees, somehow adapting quite well despite obvious price fixing and rate suppression. The licensing structure has worked because there’s been an understanding between songwriters and licensors that a song copyright has value and that use of songs requires a transaction.
In 1998, the first fissures in the music licensing compact began to form with the passage of the Digital Millennium Copyright Act, which began chipping away at the “property” part of intellectual property with the legal codification of utopian sounding concepts such as “Fair Use” & “Safe Harbor”. Again, it seemed reasonable, if wildly abstract at the time. I mean, Napster wasn’t even a thing yet and the iPod wouldn’t be introduced to the public for another 3 years.
Today, in real-world practice, the DMCA among other negative outcomes, gives cover to online music platforms that engage in infringing behavior, whether by streaming or offering downloads of improperly licensed music or outright pirating. Songwriters on the other hand, are constrained by artificially low digital rates determined by overwhelmed rate courts (thanks, consent decrees!) and a gossamer legal framework that hasn’t remotely kept up with technology and does little to protect the property of copyright owners (thanks, Congress!).
We, the songwriters, went to the Department of Justice to ask for relief and protection through the modification of the consent decrees. We didn’t even ask that these antiquated relics to be shredded into the compost heap of the 20th century where they belong. We asked for help. We explained our position. We implored them to make common sense modifications to the consent decrees that might help make our industry just a bit more nimble in a fast moving digital marketplace.
Apparently, the Department Of Justice did not feel moved. Because you want to know what they did instead? Instead, the DOJ's Antitrust Division has inexplicably just made our plight significantly worse by ignoring the specific issues we raised, distorting the language of the consent decrees to solve a problem that did not exist, bypassing decades-long industry practice by compelling ASCAP + BMI to issue licenses for fractions of songs they that they do not represent. This is known as 100% licensing and it is a nightmare for us, while paving a smoother, more carefree road for digital platforms to exploit our copyrights. They have done this despite our pleas, despite no monopolistic behavior on our side and thus, for seemingly for no good reason. No reason, that is, unless one considers that the head of Antitrust is Renata Hesse, former counsel for Google. And who is the primary beneficiary of this massive "F#*% YOU" to the songwriting profession? You guessed it: Google.
SONA members join a growing chorus of songwriters, legislators, publishers, PRO’s, and journalists in condemning the DOJ’s outrageous and arrogant decision. We will use whatevermeans we have at our disposal, whether through legal channels or the press, to inform the public of the truth as we see it: That the DOJ’s Antitrust Division under the leadership of Renata Hesse is not interested in fostering healthy competition or curtailing monopolistic behavior. It took them 2 years of engaging in legal hopscotch to effectively protect Google, the most powerful monopoly in history, from middle-class songwriters, the individual small business owners who started out in this “negotiation” with practically no power and walk away with even less. The destruction that has been callously inflicted on the songwriting profession will not be received quietly. The overreach by the Antitrust Division’s lawyers will not go unanswered. Stay tuned..
Songwriters Of North America
Same s**t different day!
Does this story sound familiar? When the printing press was invented they told Charles Dickens and Edgar Allan Poe that the horse had bolted, you'll never get anyone to pay you royalties abroad on your books any more, you'll have to go on tour and sign books that people have printed themselves because you can't stop them printing your work across America (the world), it is too vast to police it properly!!!!
Then when Performing Rights Organizations, like ASCAP, first suggested collecting royalties in USA some thought 'It's impossible to do. Shop owners, and broadcasters have never paid for music so they won't pay for it now. It's impossible to police and enforce copyright laws! It's a HUGE undertaking that will never succeed"
These PRO's, armed with only shoe leather, paper and pens (not a computer in sight) achieved what some thought was impossible and it was undoubtedly worth it.
Charles Dickens campaigned in 1842 for international copyright laws to be upheld; he called for better education and enforcement to protect IP, 40 years after the death his efforts proved not to be in vain.
The technology exists NOW to do everything we need it to do - track, trace, transparently account and pay the right people without infringing our civil liberties. FACT! And all from the comfort of an armchair!
We face the same challenges. Our forefathers did not buckle; they refused to accept the unacceptable! They (ASCAP, BMI, SESAC, PRS, GAMA etc., etc.) took on the enormous task of creating the licensing system that we benefit from today. As MLK says, "the time is always right to do what is right". It's up to us to not resign ourselves to accept the scraps from the Internet table, but instead to put in place a system of micro licensing and accounting so that these massive "Tech Titans" have to pay/share - not just by advertising or by taking your 'data' for free in exchange for giving you someone else's 'data' for free! Or paying below market value set by a rate court. We must let the copyright owner decide what they want their copyright to be priced at.
Remember every algorithm relies on human input of data, whether it be Google translate or Google play. When the Tech Titians don't pay the humans fairly for that data jobs are lost and the Tech Titans get richer and richer.
The digital economy is not an economy if there is no proper exchange of money, it becomes a "Feudal System" where the GAFAs (Google, Amazon, Facebook, Apple) RULE and get rich on the backs of everyone else working on their digital real estate.
I'm not a luddite raging against the machines and wanting to destroy them, insisting people buy cd's, photos and books etc. - NO! Far from it! I am asking us to stand up and insist that these machines (and ALL future technologies) be programmed to work fairly for everyone.
In each technological revolution most people are asleep, then when they wake up people either 1) shaft each other for as long as they can, or 2) they work to make it fair for everyone or 3) they hope (but doubt) someone else will sort it out, ideally before they die!
Which one are you?
"The Only Thing Necessary for the Triumph of Evil is that Good Men (and Women) Do Nothing" Edmund Burke
Join the Monday Breakfast Club or the Tuesday dinner, (email us and get added to the list.)
Join every organization that represents you.
SHOW UP! Sit at the DOJ or Copyright round tables (the next one is May 13th in California) to discuss safe Harbor or consent decrees etc., etc.! You either have a seat at the table or you're on the menu. Write to your congress representative. We are all very busy and none of us want to do any of this work! If not me and you, then who? If not now, then when?
Block chain may be a technology that helps create the system, but belief in the NEED for humanity and fairness will fuel the creation of this new system and every system in the future, just as it did in the past!
Believe it, then build it and they will come!
The next big tech development event is Berlin Music Tech Fest and "The Blockchain Lab from 23-27 May is by invitation only, bringing together the best minds in blockchain technology to develop and innovate new open technology through collaboration around a series of problems, challenges and provocations."
SONA Directors Shelly Peiken and Michelle Lewis talk music streaming rates and the pitfalls of autotune on Shelly's weekly radio show. Check it out here!
Fellow Songwriters -
As many of you know, the US Department of Justice is currently considering changes to the consent decrees which regulate licensing rules and rates for BMI and ASCAP. As songwriters, we have had to undergo an enormous education as we grapple to understand the historical context of the consent decrees and the complexity of how they impact our day-to-day ability to make a living, now more than ever. Streaming media has changed the game entirely.
What we did not see coming was the insertion of the completely fabricated issue of “fractional licensing” into the debate. Because of this, the DOJ is now considering requiring our PROs (Performance Rights Organizations), ASCAP and BMI, to issue licenses for entire works when they may only represent one writer or a fraction of that work. We disagree vociferously.
Make no mistake, requiring the PROs to license entire works, rather than their fractional interests, would create pandemonium for songwriters while making life much easier for music streaming platforms who have shown contempt for keeping track of and paying songwriters.
Here is what we believe: MY PRO can license my share of the song we wrote together and YOUR PRO can license your share. End of story. Any other interpretation of how our work should be licensed by our PROs is unacceptable to us and goes against everything songwriters believe walking into any collaboration.
If you agree, it’s imperative that you register your opinion where it counts. The DOJ has a call for comments on its website regarding fractional licensing. ASCAP and BMI have come out swinging on this issue and the songwriting community should stand squarely behind them. Click on the links below. Deadline for comments is November 20, 2015.
Thank you, Steven Tyler. We’re so glad you were able to come to an equitable resolution with the Trump campaign on the use of your song “Dream On.” Instead of allowing a public disagreement between you and Donald Trump to become yet another celebrity flame war, you elevated the conversation - above politics and fame - and focused your spotlight on an issue that matters not only to you, but to many thousands of working songwriters and composers around the country.
Thank you for including us, the Songwriters of North America (SONA), in this conversation.
We communicate better in lyrics and chords than in public statements, but we need to make sure that voices of all songwriters are heard and that we are inclusive. Songwriters are the most vulnerable group of creators in the industry because we work behind the scenes and not all of us are recording artists, producers, or touring musicians and royalties are our primary source of income. We are a very diverse community- we include many women, people of color, native Spanish speakers, people under 25, and members of the LGBT community. We ALL need to represent!
We, the songwriters are the behind-the-scenes craftspeople who write the songs and compose the scores which end up becoming the soundtracks to so many daily lives. And if we are to survive, we are going to need some changes in the laws and other government regulations that dictate how we are paid and how our songs are used.
Specifically, we need the Department of Justice to modify the consent decrees which govern ASCAP and BMI. We need these modifications to allow us to co-exist in this new marketplace. The consent decrees have not been updated since the iPod was developed! As we saw this week, political campaignsobtain public performance licenses from ASCAP and BMI which gives the campaign full use of all songs in ASCAP’s and BMI’s repertoire, even if the songwriters do not agree with the use of their music in connection with the campaign or that particular candidate. The consent decrees do not allow songwriters and publishers to negotiate in a free market or give them the ability to say “no.” In addition, the consent decrees require “rate courts” to set the rates for public performance licenses. These rate courts are slow, expensive, outdated, and ineffective.
Better rates for songwriters - as Steven Tyler stated, seventy five percent of songwriters’ income in the U.S. is regulated by the government through consent decrees, rate courts, and the Copyright Royalty Board (CRB). A current bill in Congress is the Songwriter Equity Act (SEA). If the SEA is passed it would allow rate courts to consider more relevant evidence in setting rates for use of songs and it would give the rate courts the ability to set rates closer to fair market value. The SEA also requires the CRB to consider the fair market value of mechanical licenses when rate setting.
Modernization of the U.S. Copyright Office. The Copyright Office, currently housed within the Library of Congress, does not have a policy making seat at the table like the Patent and Trademark Office and it needs to be its own independent agency with a secure IT system and a global data base. For more information on this go to http://hudson.org/research/11772-a-21st-century-copyright-office-the-conservative-case-for-reform
Thank you again for the attention that’s been brought our way! We hope that the momentum created by Steven Tyler’s efforts is carried forward to create meaningful changes on congressional and regulatory levels, which would allow us to continue to do what we do for a living - create music - well into the digital future. Songwriters need to mobilize!
If you’re a full-time working songwriter, here are some local and national songwriter based organizations you can join to get involved:
Songwriters of North America (SONA). www.wearesona.com
The Nashville Songwriters Alliance International (NSAI). http://www.nashvillesongwriters.com/about-nsai
The Council of Music Creators www.councilofmusiccreators.org.
“Someday, this song will run for president…” thought no songwriter. Ever.
Of course, we want big things for our song babies. And once we send our songs out into the world, we can’t really control how they’ll do. Will they be popular? Will they get in with a bad crowd? We hope for the best… but in the “worst case scenario” there is a mechanism in place - the parental intervention of songwriting - which allows us approval rights for a commercial synch use - particularly for requests in certain restricted categories which include the sales of tobacco, pharmaceuticals, firearms, NC-17 and x-rated movies and personal hygiene (umm, eew?). However, did you know that a use in support of a political campaign or platform is considered a “public performance” use? Meaning - ASCAP and BMI, because of the Dept. of Justice’s outdated consent decrees placed on them - Can’t. Say. No.
So, if you’re following along, we songwriters CAN say “no” to certain synch use requests. And that “no” is legally binding. It’s a clause that’s put into most songwriters’ publishing deals and it’s the one tiny piece of control we as parents of songs are allowed to have. “Approved Use” is a control mechanism which was put in place exactly for this reason - so that our songs will only be used in the way we intend them to be used. But in the case of a political campaign (or any other “public performance”), no matter the personal opinion or beliefs of the songs’ creator, they must roll over and say, “OK,” unless that songwriter is adamant enough and famous enough to claim that use is a violation of his or her right to privacy (according to the Lanham Act).
So, here’s this guy Donald Trump, with all the subtlety of a Tyrannosaurus Rex wielding a flamethrower, storming through our collective consciousness on his run for the US presidency. And this run requires a soundtrack, of course. He’s a dramatic dude. He tries using an REM song (“Its the End of The World As We Know It”), but Michael Stipe ain’t having it. He tries a Neil Young jam (“Rocking in the Free World”), but Neil shuts it down. So he moves on to his favorite band Aerosmith’s tune, “Dream On” - because, maybe third time’s the charm? Nope. Steven Tyler says “no” too. Then, in a particularly dick-ish move, Trump goes on and continues to use “Dream On” as his entrance music! Cue the sound of our friend Dina LaPolt’s head exploding (as she happens to be Steven Tyler’s attorney).
“Sing with me, sing for the year, sing for the laughter, sing for the…” Needle scratch.
Not today, Donald. Not today.
In the SNL-skit version of this story that I have in my head, Trump goes on to try using other songs that he’s liked over the years for his grand entrance. I picture him standing just off stage, waiting for his cue as “Can’t Touch This” blasts through the arena sound system. Needle scratch.
“Mama Said Knock You Out…” Needle scratch.
“Everybody Wants to Rule the World…” Needle scratch.
“It’s Raining Men…” Wait, what?
Hopefully, The Donald will get the hint and knock it off. Maybe he’ll hire some famous songwriters to write him his own campaign song. And he has every right to do that. It’s called a work-for-hire and he could use the resulting song however the hell he wants. Most importantly, the writing session would be fodder for a-MAZING comedy.
SNL-skit part 2:
SONGWRITER 1: “Let’s see. What rhymes with Trump?”
From a professional songwriters’ perspective, this is not a partisan issue, but an issue of fundamental property rights. The bottom line is this: We songwriters need to work together, as a community, to get the consent decrees modified so we can have FULL approval rights over how our songs are put to use, particularly for something as personal and resonant as a political endorsement! We need to support Steven Tyler’s right to decide for himself whether or not he wants to endorse Donald Trump’s candidacy. And if Steven Tyler says “no” (which he did), then “no” is what he means.
Remember - #SongwritersRightsNow!