Request submitted by the Songwriters Guild of America President, Rick Carnes
Re: Request to the US Copyright Office to convene a meeting of interested parties to discuss implementation of its directives to the MLC regarding termination rights, and to discuss industry-wide concerns and reforms regarding the timely processing by music publishers of termination notices properly served on them by songwriters, composers and heirs
Shira Perlmutter, Esq.
U.S. Register of Copyrights
U.S. Copyright Office
101 Independence Avenue, SE
Washington, DC 20559-6000
Dear Register Perlmutter:
I’m writing today on behalf of the Songwriters Guild of America (SGA) to express our enthusiastic concurrence with the US Copyright Office’s recent, important determination mandating the handling of post-termination royalties by the Mechanical Licensing Collective (MLC) in a manner that preserves and protects the rights and incomes of music creators pursuant to the US Copyright Act.[1]
As you know, we (along with our colleagues at the Society of Composers & Lyricists (SCL) and the Music Creators North America (MCNA) coalition) have been deeply engaged in advocacy regarding termination rights and related issues both recently and over a period of decades. SGA was one of the principal organizations that secured such ground-breaking termination rights for creators and authors in the 1976 US Copyright Act, and has been one of the most active proponents for creators and heirs seeking to exercise those rights over the nearly fifty years since then, including by spearheading several landmark litigations.[2]
With that background in mind, we know you realize the sincerity of our appreciation for your efforts to instill proper rules and methodologies to govern MLC royalty distributions following the effective termination by music creators of assignments and licenses under the US Copyright Act. Further, we are particularly gratified by your willingness to reject the baseless claims proffered by the National Music Publishers Association (NMPA) and the Nashville Songwriters Association (NSAI) that (i) your Office lacks the authority to instruct the music publisher-controlled MLC board on this important matter pursuant to the Music Modernization Act, and (ii) that the avoidance of inconvenience to the MLC of properly handling post termination royalties trumps songwriter and composer royalty rights.[3] Your ruling, in fact, indicates a keen and reassuring understanding of the fact that the creative community is the bedrock on which America’s music industry is built, not the other way around.[4]
More importantly, we also write today to respectfully request that the Copyright Office convene a meeting as very soon as possible among all stakeholders to discuss implementation of the instructions issued to the MLC on this issue, including the matters of retroactive payments and database corrections. We additionally regard as essential –as we have several times discussed with the Office in the recent past– inclusion in such discussions of an examination of the problems stemming from the widespread custom of music publisher delays (or simply non-responsiveness) in reacting to notices of terminations properly served on them by creators and their heirs. Last minute, groundless objections made to forestall termination are anecdotally commonplace. This practice appears to represent a deliberate if not concerted attempt by music publishers to thwart the successful exercise of such rights, a situation which we believe your Office could be very helpful in resolving without the need for resort to formal, adversarial measures.
We understand how busy the Copyright Office remains on a broad spectrum of issues, but the creators’ right to effectively exercise termination rights is a matter with huge economic and cultural implications, and one that we believe should be designated as a high priority for Copyright Office examination and discussion sooner rather than later. The delay tactics of copyright assignees cannot be permitted to successfully divest creators of the rights that Congress sought to guarantee to them in the US Copyright Act, especially if simple changes in Copyright Office regulations can suffice to address or at least alleviate such problems.
For example, even a communication from the Copyright Office to parties served with a termination notice duly registered with the Office pursuant to 17 U.S. Code § 203(a)(4), requesting that within a specified period the terminated party notify the Office and the terminating party in good faith of an intention to dispute the termination and listing the specific, fact-based reasons for such objection in each individual case, could establish conditions more conducive to fair dealing, thereby diminishing the necessity for future legislative action.
We thank you again for your actions to protect authors and creators in a manner consistent with the intentions of the Founders pursuant to Article I Section 8 of the US Constitution and of Congress in its enactment of the US Copyright Act, and we look forward to hearing from you regarding the full scope of our meeting request at your earliest convenience.
Respectfully,
Rick Carnes
President, Songwriters Guild of America
Officer, Music Creators North America
cc:
Charles J. Sanders, Esq.
Suzanne Wilson, U.S. Copyright Office General Counsel
Ashley Irwin, SCL
Eddie Schwartz, MCNA
Members of the US House and Senate Judiciary Committees
Carla Hayden, US Librarian of Congress
About SGA
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 are in conflict with those of songwriters, composers, and other authors of creative works. Established in 1931, SGA has for over 90 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 4500 members. For more information: www.songwritersguild.com
Footnotes
- https://copyright.gov/rulemaking/mma-termination
- SGA, for example, has played important roles in supporting creator-initiated litigations concerning interpretation of the derivative rights exception to termination rights, including the seminal cases Mills Music, Inc. v. Snyder, 469 U.S. 153 (1985); Woods v. Bourne, 60 F. 3d 978 (2d Cir. 1995), and; Fred Ahlert Music Corp. v. Warner/Chappell Music, Inc., 958 F. Supp. 170 (S.D.N.Y. 1997). SGA has likewise filed numerous comments and participated in numerous Copyright Office meetings on the termination rights issue as it pertains to the MLC over the past three years or more.
- See, i.e., https://public-inspection.federalregister.gov/2024-14609.pdf (text accompany notes 39-45) (“The only [formal] commenter to question the Office’s authority was NMPA, which offered various arguments for why the Office lacks authority to issue this rule. None are persuasive.”) and NSAI/MAC Ex Parte Letter to U.S. Copyright Office dated February 12, 2024 (https://www.copyright.gov/rulemaking/mma-implementation/ex-parte/nashville-songwriters-association-international-and-music-artists-coalition.pdf) (“The second issue the Office wished to discuss concerned the process around how the MLC gets notified of a payee change, how a termination dispute is handled, and how disputes get resolved. Both [MAC] and [NSAI] agreed and emphasized that the default position should be to make it as easy as possible for a terminating songwriter to comply with processes to effect their right. NSAI wishes to add for the record that the Music Modernization Act envisioned that such processes would be considered and set by the committees and Board of Directors of the MLC). At 1 (emphasis added).
- Article I Section 8 of the US Constitution authorizes Congress to enact laws specifically to promote the progress of the arts and sciences by securing exclusive rights in their creations and discoveries to creators and inventors, following the admonition in Federalist 43 by James Madison that such rights have long been recognized as essential to a healthy, free society.
