By BEN SISARIO NYTimes.com 9/13/16
When Michelle Lewis, a Los Angeles songwriter, gets her quarterly royalty statements from Ascap, she receives a stark reminder of how songs are valued in the digital age. The tunes she writes for TV shows like Disney’s “Doc McStuffins” bring in thousands of dollars, but streaming outlets like Pandora and Spotify yield less than $100 combined.
“The honest truth is that if it weren’t for the TV stuff, I’d be working at Starbucks,” said Ms. Lewis, who has writing credits on pop hits by Cher, Little Mix and Katharine McPhee. “There is no way I could afford to be a songwriter just on streaming and digital radio.”
As the reach of streaming music has grown, songwriters — an essential but often invisible part of the music world — have become increasingly vocal about their unhappiness with the amount of compensation they receive from digital outlets. Those complaints have reached a peak since last month, when the Justice Department ruled that Ascap and BMI, the two largest royalty clearinghouses, must change their licensing procedures to comply with federal regulations.
On Tuesday, Ms. Lewis and Songwriters of North America, an advocacy group she helped found a year ago, sued the Justice Department, saying that the agency overstepped its authority and that its ruling violated the property rights of songwriters by potentially nullifying private contracts between writers who have worked on the same song. The suit is the latest step in an extensive campaign by the music industry to fight the ruling, but it is the first organized response by songwriters.
In the suit, Ms. Lewis was joined by two other songwriters with extensive résumés: Tom Kelly, who helped write hits like “True Colors” and “Like a Virgin,” and Pam Sheyne, who was a writer on Christina Aguilera’s hit “Genie in a Bottle.”
“Songwriters want to have a seat at the table,” said Dina LaPolt, an entertainment lawyer who is advising Songwriters of North America on its suit.
The Justice Department declined to comment on the lawsuit.
Last month’s ruling by the Justice Department has to do with one of the most complex — and most bitterly disputed — issues in music copyright. For songs to be played on the radio, on streaming services or even in public places like restaurants and retail stores, performing rights organizations like Ascap and BMI collect royalties for songwriters and music publishers. In the United States, these fees amount to more than $2 billion a year.
But the music industry has long been unsatisfied by the rates paid by online companies, and two years ago Ascap and BMI asked the Justice Department for changes to the regulatory agreements that have governed the organizations for decades. Last month, the agency declined those requests, and instead ruled that to comply with their existing rules, Ascap and BMI must institute what is known as 100 percent licensing: When a song has multiple writers, the organizations must have the legal clearance to represent the entire song or remove it from their catalogs.
Broadcasters and digital companies hailed the ruling as a cleareyed application of copyright law. But music industry groups said it would disrupt decades of practice and cause tumult throughout the business. (Songwriters don’t always belong to the same rights organization, meaning broadcasters and digital outlets would have to have deals in place with various groups.) BMI has said it will challenge the rule in federal court, with a hearing expected on Friday.
The lawsuit by Songwriters of North America contends that the Justice Department’s ruling on 100 percent licensing violates the property rights of songwriters, since it would mean that private contracts among songwriting collaborators — a common arrangement — might not comply with the new rule. In its announcement last month, the Justice Department suggested that writers with such agreements would need to renegotiate those deals.
The songwriters’ lawsuit argues that this change violates the Fifth Amendment by removing property rights without due process and seeks a declaration that the new rule is unlawful. In addition to the Justice Department itself, the suit names as defendants Attorney General Loretta E. Lynch and Renata B. Hesse, who oversees the agency’s antitrust division.
“The 100 percent mandate,” the suit says, “is an illegitimate assertion of agency power in gross violation of plaintiffs’ due process rights, copyright interests and freedom of contacts, and needs to be set aside.”
In preparing its suit, Songwriters of North America was also advised by Jacqueline C. Charlesworth, a former general counsel of the United States Copyright Office, which has argued that 100 percent licensing would conflict with copyright law. The songwriters are represented in their suit by Gerard P. Fox, a Los Angeles lawyer known in music circles for representing the Isley Brothers when they successfully sued Michael Bolton for copyright infringement in the 1990s.
Mr. Fox is representing Songwriters of North America on a pro bono basis, Ms. Lewis said. The organization has about 200 members, and it began with a meeting early last year when Ms. Lewis and other writers, confused and exasperated by their minuscule online royalties, asked Ms. LaPolt to explain to them the complex system of online copyright licensing.
Ms. Lewis said she hoped the lawsuit would reveal more about the lives of songwriters, who, even when they write major hits, are often little known to the public.
“We are the worker bees churning out the songs,” Ms. Lewis said.