MCNA submits comments on issues related to performing rights organizations (Apr 2025)

Comments of the Songwriters Guild of America, the Society of Composers & Lyricists, and the United States’ Affiliate Members of Music Creators North America

Re: U.S. Copyright Office [Docket No. 2025–1]
Issues Related to Performing Rights Organizations [FR Doc. 2025–02418 –Filed 2–7–25]

AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of Inquiry (NOI)
DATE OF SUBMISSION: April 11, 2025

I. Introduction

The following Comments are respectfully submitted by the signatory organizations Songwriters Guild of America,¹ the Society of Composers & Lyricists,² and the United States affiliate members of Music Creators North America³ (MCNA) (listed at the conclusion of these Comments) in response to the above-captioned NOI.⁴ Together, these groups represent and advocate on behalf of hundreds of thousands of independent songwriters, composers, lyricists and music creator partner organizations located within the United States and throughout the world.⁵

At the outset, we wish to thank both the US Copyright Office (USCO) for the opportunity to present these Comments, as well as those members of Congress whose letter of inquiry first prompted the NOI.  The collective licensing of US performing rights in musical compositions has a profound bearing not only on the personal, professional and financial survival of American music creators, but also on the overall American economy and trade balance.  It likewise impacts our country’s ability to maintain its position as by far the world’s most popular exporter of musical culture to the world, and as the world’s largest single market for the appreciation and consumption of musical works⁶. It therefore behooves us as both a creative community and a nation to monitor as diligently as possible the efficacy of the US performing rights collective licensing system, seeking to preserve the ideals and benefits of free market competition while remaining open to discussing potential improvements in efficiencies for creators, business entities and consumers.

II. The Overwhelming Benefits of the US “Multiple PRO” System

Although absolute accuracy in the valuation of US and global music performing rights royalties is difficult to measure, the International Confederation of Societies of Authors and Composers (CISAC)⁷ estimates with reasonable statistical accuracy that total global performance revenue for musical compositions today amounts to approximately $14 billion in collections. About 25% ($3.5 billion) of such royalties originate in the US, which remains (as noted above) the world’s largest national market for music. While results vary widely from one music creator to another, performance royalties make up roughly between 55% and 65% of songwriter and composer income (with the income stream on average divided about 1/3 to music publishers and 2/3 to music creators on assigned/administered works and a 50/50 split on work for hire compositions)⁸. Of equal significance, a majority of those $14 billion in global performing rights revenues flow eventually to American songwriters, composers, lyricists and their music publisher assignees, due to the consistent popularity of US creative output over the course of more than a century of global market leadership.

Thus, it is easy to demonstrate how important the health of the US performing rights organizations (PROs) (and the structure within which those PROs operate) are to the future of the US music industry economy. Songwriters and composers form the bedrock on which American musical culture and commerce is built, and the PRO system is one of the most crucial elements that sustains the entire value chain, helping to maintain a semblance of economic stability for professional music creators.

In its NOI, the USCO summarized its clear recognition of the importance of the PROs to a well-functioning US music ecosystem from its modern beginnings, efficiently serving the needs of composers, songwriters and their administrators –as well as satisfying the requests for efficiencies by music licensees– since early in the 20th century. According to the NOI:

As one court summarized the issue: “The users of music, such as theaters, dance halls and bars, were so numerous and widespread, and each performance so fleeting an occurrence, that no individual copyright owner could negotiate licenses with users of his music, or detect unauthorized uses. On the other side of the coin, those who wished to perform compositions without infringing the copyright were, as a practical matter, unable to obtain licenses from the owners of the works they wished to perform.⁹”

Performing rights organizations (‘‘PROs’’) were established to address these challenges. Broadly, a PRO contracts with songwriters and publishers for the authority to license the public performance rights in their musical works, and then provides collective licenses of those rights to users, allowing them to publicly perform the works in the PRO’s repertoire. Such licenses are significantly more efficient for businesses, songwriters, and publishers when compared to song-by-song licensing and enforcement¹⁰.

The independent music creator community agrees without reservation that maintenance of the competitive PRO collective licensing system in the US as described above (including its “fractional licensing” structure) is essential, and must be preserved to safeguard the future economic and creative security of American and global songwriters and composers.

In short, market competition among multiple PROs in the US serves the best interests of the creative community by providing creators and their administrators with a choice among numerous entities providing various advantages based upon multiple factors individual to each creator and work¹¹. Competition also serves the interests of consumers and copyright licensees, promoting efficiencies that maintain predictability and sustainability throughout the creation, licensing and royalty collection structure. To repeat for emphasis, the independent music creator community strongly believes that this competitive climate must be preserved in the best interests of all.

That said, we additionally recognize that the recent, so-called “proliferation” of PROs in the US has potentially resulted in a new, minor level of increased workload for license-seekers who have grown accustomed to dealing with less than a handful of US PROs over the past century in fulfilling their performing rights licensing obligations. As noted by the USCO in its NOI:

After a long period of stability, the number of PROs in the United States has increased in recent years. The first U.S. PRO was ASCAP, established in 1914, followed by SESAC in 1931 and BMI in 1939. More recently, three new PROs have been formed: Global Music Rights (or ‘‘GMR’’) in 2013, PRO Music Rights in 2018, and AllTrack in 2019….

In September 2024, the Copyright Office received a letter from three members of the House Judiciary Committee relaying concerns over (1) the increase of PROs and (2) difficulties regarding how to ‘‘assess how efficiently PROs are distributing general licensing revenue, based on publicly available data.’’ …. The letter asked the Office to gather information regarding these issues. With this notice, the Office is soliciting input to aid Congress’s consideration of these issues and invites written comments on the subjects of inquiry below….

The Congressional Request states that bars, restaurants, stores, hotels, and music venues engaged in the public performance of musical works ‘‘have reported receiving demands for royalties from new entities claiming to represent songwriters, and threatening litigation if the demands are not met.’’ It adds that, ‘‘[c]onsidering that the possibility of substantial statutory copyright damages poses an existential risk for most bars, restaurants, and other small businesses, many feel compelled to pay these entities on top of what they already pay for blanket licenses from the traditional PROs.’’

Our reply to licensees is straight-forward. To those music users speciously claiming that seeking out licenses for millions of musical works from what will almost certainly remain just a small handful of PROs in the US has become so over-burdensome that the system is now unworkable, we point out that the creator community is simply not going to sit idly by in acceptance of such ridiculous, baseless assertions of “market complexity” as factual. We see these complaints for exactly what they are: a renewed effort by users to invent new, unfounded, inconvenience-based excuses for royalty payment-avoidance supported by no reasonable motivation other than generation of windfall user profits.

To place our position in greater perspective, we well remember the successful effort mounted in the late 1990s by US restaurants, bars and grills to legislatively force American performing rights licensing exemptions pursuant to false and hypocritical claims of licensing complexities and fair use¹². We cannot abide repetition of that damaging and unfair battle waged today by an even broader coalition of royalty-abhorring copyright users—especially after enduring more than two decades of rampant digital music piracy that nearly wrecked the profession of music creation altogether¹³.

We hasten to add that switching to a single-source collective licensing system for US performing rights, thereby destroying competition among US PROs in the marketplace while artificially driving down royalty rates, would be both counter-productive and extremely short-sighted. American musical culture and commerce would suffer immediate and potentially irreparable harm. Moreover, expansion of compulsory licensing in this sector of the music licensing economy, or worse still, enlarging the scope of the fair use doctrine, would be similarly devastating to music creator performing rights earnings. These potential “solutions” are akin to using the proverbial nuclear bomb to do the work of a fly-swatter. Both do the job of eliminating the source of annoyance, but one does so without the collateral damage of blowing up that particular segment of the global music economy.

Further and pointedly noteworthy is the fact that efforts have already been voluntarily undertaken by US PROs to ease the alleged administrative burdens claimed to be vexing the complaining copyright users. For example, through the institution of the Songview system, the two largest US PROs began jointly addressing the issue of data accessibility years ago. ASCAP and BMI, now joined by SESAC and GMR, are currently facilitating composition identification by making pertinent information concerning their combined catalogs of over twenty million musical works available through a single, on-line source connected to separate, easy-to-use licensing mechanisms¹⁴.

Potential, voluntary expansion of this cooperative transparency and licensing program with the encouragement of the USCO would likely be welcomed by all parties concerned, including any smaller, future PROs not yet participating in a cooperative data system that preserves the licensing and database autonomy of each. The independent music creator community stands firmly behind the principle that improvements in industry practices which streamline administrative licensing activities and result in greater accuracy and efficiency –while maintaining rights and rates– should always be considered. Songview is an excellent example of that practice at work. Consideration of such initiatives on a case-by-case basis with the input of all interested parties is always welcome, so long as no harm results.

Further on the general topic of industry openness, we wish to emphasize that transparency between PROs and their affiliated music creators is an issue regularly raised by our members and therefore, we deem it worthy of further industry exploration, particularly in regard to the ability of songwriters and composers to audit their chosen PROs. Understandably, the breadth that such a discussion would require, under present circumstances, places the issue for practical purposes beyond the scope of these Comments. Nevertheless, carefully considered improvements in PRO transparency is an issue that the independent music creator community would like to see addressed, and will look to raise in future correspondence.

III. The Problem of Major Music Publisher Domination over PRO Decision-Making

Finally, from the music creator perspective, perhaps the most compelling reason of all for maintaining the current US system of competitive, multiple PROs has to do with the search for uncompromised representation by songwriters and composers. This is an issue that requires further elucidation and maximum emphasis.

It is well established that conflicts of interest in the music industry are both rife and persistent. Vertical integration, extreme consolidation, multinational corporate subservience to shareholder interests, and other factors now more than ever combine to create a perfect storm for music creators seeking PRO representation free from influence contrary to their interests.

Currently, just three multi-national, multi-billion-dollar music publishing corporations control upwards of two-thirds of the world’s musical compositions. Those “Major” publishers are in turn controlled by corporate parents and affiliates representing copyright users with interests frequently in sharp conflict with those of music creators and smaller administrators. Moreover, those same, three vertically integrated Major music publishers, by the sheer size of their market shares, are in a position to exert enormous pressure on US PROs to bend to their will on issues that frequently harm rather than help the interests of their music creator “partners” (and for that matter, of their smaller competitors, as well).

This glaringly unhealthy situation has been pointed out numerous times in our past comments to the USCO, including reference to individual threats by various Major music publishers of withdrawal from a PRO unless such Major’s demands for that PRO’s action or silence are met. The result of such existential pressure is evidenced by recent anomalies that include but are not limited to: (i) announced support for certain legislative initiatives by PROs without actually having seen the proposed laws (as in the case of the Music Modernization Act); (ii) silence on such issues as Copyright Royalty Board reform and specific recommendations of sui generis rights for creators and their assignees regarding generative artificial intelligence; and, (iii) numerous other issues, such as the observance and protection of crucial songwriter and composer termination rights interests at odds with the desires of those who control the Major publishers from above.

Strictly in the context of these Comments, we raise these issues once again to point out the crucial nature of American songwriters and composers continuing to have a choice in selecting from among numerous PROs the one that in his or her opinion is most likely to resist such conflicting pressures.

IV. Statements of Interest

For the convenience and additional consideration of the USCO, we provide the following information concerning the submitting organizations:

SGA is the longest established and largest music creator advocacy and copyright administrative organization in the United States run solely by and for songwriters, composers, and their heirs. Its positions are reasoned and formulated independently and solely in the interests of music creators, without financial influence or other undue interference from parties whose interests vary from or conflict with those of songwriters, composers, and other authors of creative works. Established in 1931, SGA has for over 94 years successfully operated with a two-word mission statement: “Protect Songwriters,” and continues to do so throughout the United States and the world. SGA’s organizational membership stands at approximately 5000 members

SCL is the premier US organization for music creators working in all forms of visual media (including film, television, video games, and musical theatre). It has a membership of over 4000 professional composers and lyricists, and is a founding co-member –along with SGA and other independent music creator groups– of MCNA.

MCNA is an alliance of independent songwriter and composer organizations that advocates and educates on behalf of North America’s music creator community. As the only internationally recognized voice of North American songwriters and composers, MCNA, through its global affiliations, is part of a coalition that represents the professional interests and aspirations of more than half a million music creators across Africa, Asia, Australasia-Oceania, North and South America, and Europe.

V. Conclusion

We once again thank the USCO for consideration of these Comments, and for its recognition of the crucial importance of the role played by the “multiple PROs competition” approach to collective performing rights licensing in the US. As always, we stand ready to assist and participate in all future discussion and initiatives on the issues addressed.

 

Rick Carnes
President, Songwriters Guild of America
Officer, Music Creators North America

Ashley Irwin
President, Society of Composers & Lyricists
Co-Chair, Music Creators North America

cc:

Charles J. Sanders, Esq.
Ms. Shira Perlmutter, US Register of Copyrights
Mr. Eddie Schwartz, President, Music Creators North America
Members of the US Senate and House Sub-Committees on Intellectual Property

List of American MCNA Affiliated Organizations:

Alliance for Women Film Composers (AWFC)
Game Audio Network Guild (G.A.N.G.)
Music Answers (M.A.)
Fair Trade Music International (FTMI) (non-MCNA member)