Monday, May 29, 2017
The recent ruling by the U.S. Department of Justice in United States v. Broadcast Music, Inc. and United States v. American Society of Composers, Authors and Publishers
by Steve Winogradsky and Chris Castle
The recent ruling by the U.S. Department of Justice in United States v. Broadcast Music, Inc. and United States v. American Society of Composers, Authors and Publishers has left many songwriters, publishers, motion picture and television producers and, yes, even lawyers scratching their heads to understand the import of the ruling. Not to mention Texas Governor Greg Abbott who has written to Attorney General Loretta Lynch asking her to reconsider the DOJ ruling.
The authors have summarized the ruling in the chart that follows. The thing speaks for itself.
As you will see, the left hand column lists the various roles of a music creator (starting with “Songwriter”) or music user. The rows describe some of the potential combinations of co-writers who will run afoul of the DOJ’s ruling. The chart is followed by a list of descriptions of what rule will apply to your situation.
If you find yourself in the left hand column, scan across the rows to see if you fit in any of the co-writer positions. Then look for which note applies to you in the list of notes below the chart.
For example, if you are an ASCAP songwriter who has co-written with a BMI songwriter (1st box in column and 6th row across), Note E applies to you.
This chart is based on the authors’ interpretations of the DOJ’s statement and is not dispositive or based on a court ruling as there has been none as of this writing. Obviously, this is not meant as legal advice and you should not rely on it. This is a complex area that has gotten even more complex, and you should consult with your own lawyers.
For further background, listen to the MTP podcast with Steve Winogradsky, David Lowery and Chris Castle and read Steve’s book Music Publishing–the Complete Guide. And essential reading on the issue is that evergreen resource for legal research on takings and other government behavior in the digital age, The Trial, by Franz Kafka.
this article is a reprint of Steve Winogradsky and Chris Castle of Music Technology Policy