Foundation for Musicians and Songwriters

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Category: Songwriting

Publishing Industry Expresses Confusion, Concern Over Dept. of Justice Copyright Decision

For over two years, music publishers and songwriters have petitioned the Dept. of Justice for changes to the 75-year-old copyright rules they were governed by, requesting amendments in order to stave off dwindling royalty rates caused, in their view, by antiquated U.S. government regulations. last week, in a decision one executive said would result in a “a clusterf—k of epic proportions,” the DoJ announced that it would instead impose further rules on music publishers and songwriters — all who now fear a further recession for their royalties.

In addition to refusing to amend the consent decree to allow partial withdrawals for music publishers from ASCAP and BMI’s blanket licenses, the DoJ ruled that the consent decree requires those performance rights organizations (PROs) to engage in what’s known as “100 percent licensing” for songs with multiple songwriters — meaning a music licensee only needs a license from just one of the songwriters to utilize a song, instead of each of them. That’s in contrast to the traditional fractional licensing — which has up to now been the backbone of the music publishing industry — whereby rights holders can only approve usage of their portion of a work.

One possibly litigious result of the ruling could involve a songwriter going to court for all of the royalties for a song they co-wrote, potentially insisting that they should be disbursing those royalties to their co-writers, not whoever licensed the work. Another case involves songs built brick-by-brick, especially sample-based music — those works could potentially fall outside of the blanket licenses. Yet another: Works where there is an agreement between the songwriters that certain co-writers will not be allowed to license that work, forcing PROs to determine whether those agreements are in place and exclude the exempted co-writers from any blanket license.

The DoJ is said to be giving ASCAP and BMI one year to prepare for the shift to 100 percent licensing. If ASCAP and BMI choose not to adopt 100 percent licensing, the DoJ could file suit against them on antitrust grounds — the reason for the consent decrees initially — leaving a court to decide whether the PROs were in violation. Sources suggest that ASCAP and BMI’s rate court judges, the people responsible for setting statutory license fees, also have to sign off on the DoJ’s interpretation.

“The DoJ decision is very disappointing; it places unnecessary burdens on an already highly regulated marketplace, further impacting the livelihood of hundreds of thousands of songwriters,” BMG U.S. president of creative and marketing Laurent Hubert said in a statement on the decision.

Beyond lower royalties, music publishers and songwriters also fear that the new decision will fundamentally change the way music publishing has operated for 100 years. The DoJ’s decision “is going to cause a tremendous amount of uncertainty and chaos in a marketplace that has worked well… and will adversely impact everyone in the licensing process, including PROs, licensees, music publishers and most of all songwriters, who can ill-afford to hire lawyers to figure out their rights under this inexplicable ruling,” Sony/ATV chairman and CEO Martin Bandier said in a statement. “The decision raises more questions than answers.” Sony/ATV has been one of two majors leading the charge to get the consent decree amended.

“We are disappointed with the DoJ’s recommendation, which after years of hard work and discussion brings us no closer to much-needed consent decree reform than when we started,” BMI president and CEO Mike O’Neill said in an internal e-mail to his staff. “Instead, the DoJ chose to address only the issue of 100 percent licensing, a concept we never raised and one that the marketplace has worked out on its own over the last half-century.”

At ASCAP, CEO Elizabeth Matthews, writing on the organization’s website, addressed the organization’s songwriter members. “We want you to know that while the DoJ has expressed their views, this is not the final outcome of this process. ASCAP strongly disagrees with the DoJ’s position, and we are carefully considering all of our options, including potential legislative and legal remedies.”

Jody Gerson, chairman and CEO of Universal Music Publishing Group, the other major publisher pushing for changes to the consent decrees, wrote in an internal email to staff obtained by Billboard that her company’s management “believes that the DoJ’s decision is bad for songwriters, and we are deeply disappointed. The DoJ not only declined to update consent decrees that haven’t been updated in over a decade and badly need to be modernized for today’s market, but they also decided that ASCAP and BMI must engage in ‘100 percent’ licensing.” She predicted that 100 percent licensing will lead to “unfair prices that do not reflect the true value of the music that our songwriters create. It will also provide a disincentive to songwriters to work with fellow writers who are signed with a different PRO.”

Tim Nichols, a co-writer of Tim McGraw’s “Live Like You Were Dying” alongside Craig Wiseman, echoed Gerson’s concern in a statement. Nichols writes that he and Wiseman “belong to different PROs, and if 100 percent licensing had been in effect, I’m not sure we would have written that song. You would really be stepping all over writing relationships that are based on special creative chemistry.”

“This determination is completely inconsistent with the manner in which ASCAP and BMI have issued public performance licenses,” writes Warner/Chappell CEO Jon Platt in a statement released today (Jul 5), “It is especially alarming that the DOJ has come to this determination despite the overwhelming concerns expressed by ASCAP, BMI, NMPA, publishers, songwriters and even the U.S. Copyright Office.”

Meanwhile, National Songwriters Association president Lee Thomas Miller, in a statement, called the DoJ decision “unimaginable and the worst possible outcome” for songwriters. “Earlier this year in Washington, D.C., I explained to DoJ that our profession was already decimated, and that mandating 100 percent licensing could put the final nail in our coffin. I am stunned and sickened.”

Yet not everyone is so starkly disapproving. Public Knowledge, which positions itself as an advocate for both consumers and musicians, says it is pleased with the DoJ’s stance.

“It appears that the Department has agreed with our view that antitrust protections should not be removed at a time when the music publishing industry is more concentrated than ever,” says Public Knowledge’s Raza Panjwani in a statement. “The state of the marketplace, and recent bad behavior by the publishers, have made it clear that granting the music publishers the changes they requested would serve as a green light for additional abuse.”

Many music licensees, like the digital streaming services, agree with the DoJ’s view, arguing that the industry has been operating under 100 percent licensing all along. One streaming service executive goes so far as to say the DoJ ruling changes nothing. “As far as we are concerned, we have been operating under 100 percent licensing, because both the ASCAP and BMI license says that if you have one you can play any song in their repertoire,” he says. “The license doesn’t say you can only play their share.”

About the Foundation for Musicians and Songwriters

The Foundation for Musicians and Songwriters is an IRS 501c3 Public Charity that is dedicated to helping Musicians and Songwriters develop their careers in the Music Industry.  We do so without taking a penny or rights from the artist we represent.

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“Melody is the Key” to Creating a Song that Connects with Fans

Keith Urban Photo

Keith Urban was specifically promoting his new album, Ripcord, when he spoke to USA Today earlier this month, but he could have easily been talking about country music as a whole. “Melody is key,” he told music journalist Bob Doerschuk. “How many songs do we sing along to where we don’t even know the words? Melody pulls us in.”

Urban hinted at an essential part of music that’s not easy to verbalize. Defining the outdoorsy lyrical theme in Luke Bryan’s “Huntin’, Fishin’ and Lovin’ Every Day” or grasping the reflective production values of Tim McGraw’s “Humble and Kind” are fairly routine. But explaining the arc of a melody is much harder. There’s a reason Martin Mull once said, “Writing about music is like dancing about architecture.”

Still, if you listen to some of the current top 20 titles on Hot Country Songs — Maren Morris’ “My Church,” Jon Pardi’s “Head Over Boots,” Old Dominion’s “Snapback” or Urban’s “Wasted Time,” for starters — it’s clear that there’s a strong melodic thread running through the genre. There’s no reliable way to measure it, but country is arguably producing great melodies as consistently as any other genre at this moment in time. It’s ironic, because country has long been praised for its lyrical prowess.

 

“Right now, I feel like country has taken the best of everything, all the melodies and phrasing, and then they’ve just continued to tell great stories,” says Dan + Shay’s Shay Mooney, a co-writer of Rascal Flatts’ aptly titled “I Like the Sound of That.” “A great lyric is awesome, you know, but if it’s not a good melody you’re not going to care what they’re saying.”

Some other genres are struggling with a shortage of melody, based on the discourse during a Country Radio Seminar panel, “From the Outside Looking In: Other Formats Give Their Take on Country,” in February.

iHeartMedia VP urban and urban AC Doc Wynter, programming at a time when rap has injected plenty of spoken-word into his format, said he’s seeking more music that recalls the sound of Smokey Robinson or Luther Vandross, artists whose biggest successes relied on such ultra-melodic titles as “Tears of a Clown” and “Stop to Love.”

“The Weeknd is a savior for us because traditional R&B has just fallen by the wayside,” said Wynter. “We’re hoping that we’re going to encourage more people who want to sing to bring music to our radio station.”

Cumulus corporate PD of rock formats Troy Hanson drew huge laughs during that same CRS panel when he imitated a throaty, modern-rock screech, essentially criticizing the lack of melody in his format. He has become an advocate for injecting adult alternative album rock into his playlists, basically enhancing the singability of his stations.

“We need to find some of these Black Keys and Muse artists of the world and bring them back [to the format],” he said. Melody isn’t restricted to the lead singer. Chris Lane’s hooky song “Fix” gets some of its mojo from Ilya Toshinsky’s signature guitar line, but that title would not be as addictive without its undeniable vocal progression.

Melody “is something just innately wired in us,” suggests Frankie Ballard, whose forthcoming album El Rio kicks off with two ultra-melodic Chris Stapleton compositions. “You can accept that from a flute or from a harp or from a guitar, but, generally speaking, I think people really prefer it from another human voice, probably because that’s what we’re communicating with. That’s what real.”

 

It’s also mysterious. Glen Campbell, who has Alzheimer’s disease, needed a teleprompter during his final tour to remember the words to “Wichita Lineman” and “Rhinestone Cowboy,” songs he had sung thousands of times before. But he could still recall the melodies. Why that is, and where that melody comes from, still hasn’t been fully explained.

“I think it comes from Heaven,” Brian Wilson, noted for such indelible melodies as “God Only Knows” and “Good Vibrations,” said a dozen years ago. Wilson treasures his membership in the Songwriters Hall of Fame, in great part because it puts him in a league with another of pop music’s melody studs, Burt Bacharach (“Walk On By,” “The Look of Love”), who likewise can’t cite a source for that aspect of his songwriting talent. “You either have it or you don’t,” he said in 2005.

The process of writing melodies has changed in recent years with the growth and accessibility of recording equipment. Songwriters have historically accompanied themselves on guitar or piano while creating lead lines, but the hip-hop and pop genres began using “loops” — recorded chord progressions that repeat — and pre-recorded tracks to start the writing process. The melody is a late development in that scenario, and the results can be underwhelming if that melody is treated as an afterthought.

“It is important if you’re writing to a track to pause it, bust out an acoustic guitar and test [the song] over just an acoustic guitar,” says Dan + Shay’s Dan Smyers. “If it holds up over that, then it was the right thing. And if not, then you need to go back and rework it.”

Songwriters who create melodies that sit atop of those pre-recorded productions are typically referred to in pop music as “topliners,” a term that likely draws some derision from people who have written melodies the more traditional way. Alternating between tracks and the standard guitar/vocal approach, though, happens frequently among many Nashville songwriters.

“You have to kind of switch between the two,” says Mooney, “because sometimes you’ll be writing on an acoustic guitar, and after the fifth song you’re like, ‘This is all the same stuff that we’ve been doing. It kind of sounds the same.’ But then when you hear a track, it’s like, ‘OK, this is something different,’ and it kind of inspires things in your mind. You’ve got to trick your brain into creativity sometimes.”

Philadelphia soul songwriter/producers Kenny Gamble and Leon Huff — responsible for such lyrically astute songs as “Love Train,” “If You Don’t Know Me by Now” and “Me and Mrs. Jones” — recognize that their words aren’t nearly as inspiring on a page as they are when attached to a series of notes that enhance the emotions behind them.

“Melody is important,” said Huff following a Warner/Chappell event on May 5 in Nashville. “If you didn’t have the melody, what is it?”

The songwriting community in Nashville hasn’t forgotten the importance of that component. It’s one of the underappreciated reasons for country’s boom in recent years. The words are still widely regarded as the driving force in the genre’s material. But when compared to other genres — particularly modern rock and hip-hop — that have underplayed melody’s importance, country’s consistent devotion to the part the listener is most likely to sing back is key to the genre’s current popularity.

“To me, it’s not a peanut butter and jelly sandwich,” says Ballard, “if it’s just peanut butter.”

 This article is a reprint.  Written by Tom RolandIt.  It first appeared in Billboard Magazine’s Country Update on May 19, 2016.  

About the Foundation for Musicians and Songwriters

The Foundation for Musicians and Songwriters was established to help in all areas of artist development.  FMS through the generous donations of our sponsors can bring in the resources artist need to establish a career that can influence future generations.

FMS has the connections, insight, eCommerce expertise and business acumen that the vast majority of Musicians and Songwriters don’t have.  Accordingly, as a 501(c)(3) organization, donations to FMS are 100% tax deductible, which helps our Donors pay-it-forward and promote the continuation of music for future generations — benefiting all of humanity.  As a Music Foundation, every dollar we rase is used to develop the artist so they can make a living in the Music Industry and get their music to the world.

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