Songwriters Sue Feds Over New Licensing Rule

(CN) — Songwriters for Madonna, the Pretenders, Cher and Christina Aguilera filed a federal lawsuit challenging the Justice Department's "draconian" new rule on song licensing.

"Music enriches all aspects of our lives: we eat, drink, drive and exercise to music; we get married to music; and we are comforted by music when we lose the ones we love," the lawsuit states. "Those who create the music we live by need to earn a living from the music they create."

But that has become increasingly difficult in the Internet age, according to the complaint filed Tuesday in Washington, D.C. Federal Court.

"In part this is due to pervasive government regulation of the music marketplace, which leaves songwriters and composers with little control over the licensing of their works or the rates at which they are paid," the lawsuit continues.

This led California-based grassroots organization Songwriters of North America, executive director Michelle Lewis and two members to sue the U.S. Justice Department, Attorney General Loretta Lynch, and Acting Assistant Attorney General Renata Hesse.

Lewis has written songs for Cher and Hillary Duff. The other individual plaintiffs are Thomas Kelly, who co-wrote the Divinyls' "I Touch Myself" and Madonna's "Like a Virgin," and Pamela Sheyne, who co-wrote Aguilera's "Genie in A Bottle" and some Backstreet Boys songs.

To have their works streamed or broadcast, "songwriters and composers typically join a performing rights organization (PRO) early in their career so that the PRO can issue licenses and collect royalties on their behalf," according to the complaint.

Two years ago, the two largest PROs — American Society of Songwriters, Composers, and Publishers, or ASCAP, and Broadcast Music Inc., also called BMI —

allegedly asked the Justice Department's Antitrust Division to consider modifying the licensing consent decrees they entered in 1941.

But the antitrust division instead announced last month a new rule, the 100-percent Mandate.

"Under this rule—and contrary to the longstanding practice of the music industry—songwriters and composers who have collaborated together to write a song will no longer be allowed to license only their proportionate share of that work through the PRO of their choice," the lawsuit states.

Rather, according to the plaintiffs, "ASCAP and BMI are now required to provide 'full-work' (or '100%') licenses for all of the songs they represent, even when the PRO in question does not represent all of the co-writers of the song—or face an antitrust enforcement action." (Parentheses in original.)

Certain songwriters, including foreign ones, will thus lose the privilege of licensing their co-authored works through ASCAP or BMI, while unaffiliated writers will now also be subject to licensing by the two PROs, according to the complaint.

"Antitrust's action amounts to a draconian penalty inflicted on songwriters and composers merely for exercising the rights they are granted under the Copyright Act," the complaint states.

Under the new rule, songwriters will have to license songs outside the PRO system, give up control of their copyrights and royalties to unaffiliated third parties, renegotiate each song's contract, and consider withdrawing songs from ASCAP or BMI altogether, according to the lawsuit.

The two-count complaint seeks declaratory and injunctive relief for violations of due process and the Administrative Procedure Act.

The plaintiffs are represented by Gerard Fox in D.C.

Justice Department spokesman Mark Abueg declined to comment on the matter Wednesday.

After the government announced the new licensing rule last month, BMI said it plans to sue the Justice Department, while ASCAP announced it will work on new legislation in Congress.

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