US Congress member Scott Fitzgerald has asked the Federal Trade Commission to investigate whether two of the American music industry’s smaller collecting societies - AllTrack and Pro Music Rights - are violating laws relating to unfair or deceptive practices.
He also suggests that the government agency consider issuing guidance on how music licensing organisations can ensure they are complying with those laws.
Fitzgerald has expressed concerns before about the way the performing rights in songs are licensed in the US, including the fact that there are multiple performing rights organisations each representing different repertoires: so ASCAP, BMI, SESAC and GMR, as well as AllTrack and Pro Music Rights.
His new letter relates to concerns about how the smaller societies communicate what songs they represent, and allegations that AllTrack and Pro Music Rights are misleading potential licensees.
“While both entities feign legitimacy”, Fitzgerald writes in a letter to the FTC, “it is unclear whether AllTrack or Pro Music Rights have amassed a repertoire that a licensee would find valuable to its business. Worse, however, it appears both entities may be misrepresenting to licensees the bodies of work they actually manage, thereby pressuring businesses to obtain a performance licence they may not need”.
In most countries a single collecting society represents songwriters and music publishers in those scenarios where collective licensing applies, meaning broadcasters, concert promoters, venues, clubs and bars can get a single blanket licence covering more or less all songs.
However, in the US, to get a true blanket licence you need separate licences from all the different PROs, including the big two, BMI and ASCAP, as well as SESAC, GMR, AllTrack and Pro Music Rights.
A recent inquiry by the US Copyright Office - instigated by a letter from three Congress members, including Fitzgerald - considered the increase in the number of PROs over the last fifteen years.
GMR launched in 2013 to represent premiere league songwriters, while AllTrack - founded in 2017 - aims to service and support independent and grassroots music creators. Pro Music Rights launched in 2018, bringing the total number of US PROs to six.
Last month the Copyright Office sent a summary of the responses it received to its inquiry to Fitzgerald and his colleagues in Congress. It didn’t propose any particular reforms for how collective licensing works, but stressed that licensees would like a “central, authoritative repertoire database” so they can identify what songs are controlled by what societies, and therefore what licences they require.
The Copyright Office's letter also noted the recent announcement that SESAC and GMR are joining Songview, the existing portal that already combines ASCAP and BMI songs data. However, both AllTrack and Pro Music Rights still sit outside that combined database. And, the Copyright Office added, there are particular “accessibility and transparency” issues about those two organisation’s respective repertoires.
Fitzgerald’s new letter to the FTC hones in on those concerns. He writes that Pro Music Rights “claims to represent a market share of 7.4% in the US”, yet according to comments made by BMI, that “would equate to more rights management than a combined SESAC and GMR”. Which seems unlikely. Although, of course, that depends on how you define ‘market share’.
The Congress member's main complaint about AllTrack is that it lists Billy Ray Cyrus and No Doubt on its website, but those artists are not direct members, instead the society has an interest in a song recorded by Cyrus and another recorded by No Doubt.
Of course, a licence covering the songs is necessary if either of those recordings are played, so that’s not strictly misleading. But Fitzgerald is nevertheless concerned that AllTrack does not “represent the artists themselves or a substantial volume of their recorded works”.
Whether any of this violates federal laws around unfair or deceptive practices would be for the FTC to ascertain, if it decides to undertake an investigation. Though, presumably issues around repertoire transparency could be overcome if the two smaller PROs also integrated with Songview, assuming that was possible in some way.
But for now, the often outspoken CEO of Pro Music Rights, Jake Noch, has told Billboard that he “categorically rejects the false and misleading claims contained in Representative Fitzgerald’s letter to the FTC”, adding that his rights organisation operates in full compliance with US law and “has consistently registered its repertory data with recognised industry partners and verification platforms”.