New Regulations Threaten Songwriting Business

Posted at 7:49 PM, Jul 05, 2016

Songwriters are critical to the creation and success of songs in Country Music, in Nashville, and around the world, but a new government regulation will likely make it much harder for songwriters to collaborate with other songwriters. 

"The Department of Justice just killed free creative choices for songwriters in the United States of America," Bart Herbison, executive director for the Nashville Songwriters Association International (NSAI), said. 

The Department of Justice put out a ruling creating 100% licensing, replacing fractional licensing that has been in place for decades.

Essentially, that means that if there is a song written by two songwriters (which is extremely common, if not more than two) from two different Performing Rights Organizations (PROs) such as Broadcast Music Inc. (BMI) and the American Society of Composers, Authors, and Publishers (ASCAP).

As it stood up to this ruling, a person or group (e.i. music streaming services, TV shows, movies) seeking to license the song would have to reach out to both PROs for permission and the person seeking the license would have to pay both songwriters under their PROs. 

Following the Department of Justice's ruling, all someone seeking a license would have to do is reach out to one of the PROs to get permission, and they could pay either that PRO or the songwriter under that PRO directly, leaving the other PRO and songwriter out of the equation, leaving the one PRO or songwriter responsible for getting the other songwriters involved paid. 

"The decision was ridiculous, confounding. It shocked the American songwriter community," Herbison said. "It would be like the Department of Justice telling Suntrust Bank they had to honor all ATM transactions and credit card transactions for Bank of America. There's no way to do it." 

The fear is these regulations will keep songwriters from one PRO from working with songwriters from another PRO, which is done constantly in the Nashville songwriting community. 

"What really just happened is we're not going to write together. We're not going to write that great American song that is huge in one of the important moments of your life, it will now come down to business decisions," Herbison explained. 

Members of the NSAI have been working with the federal government to try and get relief for songwriters for years, mainly by asking to U.S. Department of Justice to take the digital catalogs out of ASCAP and BMI so they could negotiate with them directly, but instead of issuing any sort of relief, the Department of Justice added these regulations. 

"The American songwriting profession's been on the Titanic, and a few of them got in a lifeboat, and the U.S. Department of Justice just torpedoed it," Herbison said. 

Tim Nichols, a Nashville songwriter that has produced numerous #1 hits and won a Grammy Award for co-writing Tim McGraw's hit song "Live Like You Were Dying", says this is the worst thing that has happened to songwriting since he got into the profession nearly 30 years ago. "I can't think of anything that compares." 

In addition to being a songwriter, Nichols runs a publishing company with Warner Chapel, and he's concerned not only for his craft, but for the craft of the songwriters he works with.

"Business decisions coming ahead of creative decisions in the music business when you're writing songs, that's not how you get the best product, that's not how you get the best songs," Nichols explained. 

When Nichols thinks back to his writing, specifically with his friend Craig Wiseman (Wiseman writes for ASCAP, Nichols for BMI), he has a hard time imagining how these regulations could have impacted their songwriting. "Just to think because of some government regulation that writing those songs could not happen in the future, or if it were in place, that they wouldn't have ever happened," Nichols was at a loss for words. 

At this time, there is no specific timeframe on when the new regulations will be enforced, but NSAI is planning to work with songwriters and PROs to try and find an alternative, or work with politicians to overrule the Department of Justice's ruling.