Evan Bogart: Consent Decree Changes Could Stifle Collaboration
Author: Evan Bogart
Imagine two songwriters sitting down to craft what they hope will be their next hit. There's a knock at the door: "Hi, I’m from the Department of Justice Anti-Trust division. Do you mind if I sit in?"
I know, it's a silly scenario. Or maybe not. Because right now, the Department of Justice is currently involved in a review process that could radically change how songwriters work, collaborate, and get paid.
Let me back up. The DOJ is reviewing the consent decrees it previously established with ASCAP and BMI. The formal agreements bind the operations of the two largest PROs because of each one's significant market share. We hope this process will result in improvements in the licensing process. ASCAP, BMI and The Recording Academy have all filed comments with important suggestions.
But the DOJ has recently signaled that it is reviewing the practice of "fractional licensing." In other words, these PROs could be required to license an entire song, even if they don't represent all of the songwriters credited on that song.
One of the most important career decisions I make as a songwriter is my choice of a PRO to represent me and license my work. Songwriters choose their PRO for a variety of reasons, but it's always a personal choice. And when I collaborate with another songwriter, it doesn't matter which PRO we each belong to. My PRO has the ability to license and collect royalties for just my share of a song that I've co-written with another songwriter. This kind of licensing, sometimes called "fractional licensing," gives me the creative freedom to work with anyone I want, secure in the knowledge that my PRO will still be able work on my behalf the way I want them to.
If the DOJ eliminated fractional licensing, it could cripple the freedom of songwriters to follow their creative instincts and work with whomever they want. Instead, they could be incentivized to work only with songwriters who are members of the same PRO.
For example, I co-wrote Beyoncé's hit song "Halo" with my friend Ryan Tedder. The collaboration began spontaneously when Ryan invited me to come over and visit him while he was recuperating from surgery. At the time, Ryan was a member of ASCAP and I was a member of BMI. It didn't matter to us because we weren't concerned about the ability of our PROs to represent our interests. But under the DOJ's new suggested licensing scheme, I might have thought twice about writing a song with someone from another PRO. I wouldn't want another PRO that I have no relationship with licensing my song for me and collecting my royalties. As a result, my collaboration with Ryan may have never taken place and we'd have never written that song. In fact, my main writing partner currently, Emanuel "Eman" Kiriakou, is affiliated with ASCAP. The way I approached my entire career would have been different if DOJ rules disincentivized me from writing with either of them.
On Nov. 16, Eman, Ryan and I were honored to join a who's who of great songwriters on The Recording Academy's official filing on the matter, urging the DOJ not to disrupt the current practice that has worked so well for songwriters, PROs, and licensees.
It's getting hard for many new songwriters to make a living. Even with a major hit, streaming royalties can amount to just a few hundred dollars. So we hope the DOJ will listen to the concerns of songwriters about improving the consent decrees with ASCAP and BMI, not making them even more burdensome for songwriters. There may not be any government officials actually sitting in on a songwriting session, but the decisions they make in the coming months will have just as much impact on how songwriters will work in the future.
Evan “Kidd” Bogart is a multi-platinum songwriter/producer who has written songs recorded by Beyoncé, Rihanna, Jennifer Lopez, Britney Spears, Demi Lovato, Madonna and many others. He is currently Vice President of The Recording Academy's Los Angeles Chapter.