Frank Scibilia, Co-Chair of Pryor Cashman’s Music and Digital Media Groups, recently spoke with Bloomberg Law about the pivotal music licensing battle underway between Broadcast Music Inc. (BMI) and the U.S. Department of Justice.  

On December 1, 2017, BMI - the country’s largest music licensing organization - faced off against the DOJ before the U.S. Court of Appeals for the Second Circuit in an effort to preserve the way it has historically licensed songs to radio stations, restaurants, bars and other businesses. Should the Second Circuit rule against BMI, it could overturn decades-old music licensing practices and bring about substantial difficulties for businesses seeking to play the most popular songs for their customers.

BMI has opposed the DOJ’s contention that it must provide complete licenses for songs, even when it represents only some of the song’s writers. In response, the government has argued that regardless of what BMI may have done historically, rules established by an antitrust consent decree issued in 1966 prohibit fractional licensing and instead require full-work licensing. As such, the government claims, if BMI can’t offer full-work licensing for a composition, it has to drop that song from its repertory.

Speaking to Bloomberg, Scibilia explained, “Everyone would lose if the DOJ’s position” prevailed. Scibilia, who represents copyright owners and specializes in digital music issues, noted that BMI’s position is “precisely how the PROs have been licensing all along” and this system has assured “the availability of public performances of songs for the benefit of consumers, writers and licensees alike.”

Several companies that pay royalties to play music, including Google, have filed briefs supporting the government’s position, while numerous organizations representing music copyright holders have filed in support of BMI’s position, including ASCAP and SESAC.

To read the full Bloomberg article, please click here.

More About Scibilia’s Practice

Recognized as one of the country’s top intellectual property and entertainment lawyers, Frank Scibilia represents content owners on all aspects of copyright law - including litigation, licensing, enforcement, rights clearance and due diligence - with a strong focus on digital music issues. He has negotiated licenses with virtually every type of digital music service entering the marketplace, including on-demand streaming services, non-interactive streaming services, cloud locker services, user-generated video services, lyric services, crowd-sourced music information services, and sheet music and guitar tab apps and services. 

To learn more about Scibilia's experience in these areas, please visit here.