MPP 014: Marc Ostrow on 100% Licensing

Music Publishing Podcast

Three months after his first appearance on the show, entertainment/copyright lawyer and MPP Superfriend Marc Ostrow is back to talk some more about Fair Use, with me supplying a few hypothetical situations. But more importantly, Marc lays out the Department of Justice’s recent and unexpected ruling that PROs must abandon 70+ years of established industry practice and adopt a 100% Licensing regime, and what that means for you.

During the conversation, we covered:

• A history of ASCAP, BMI, and their consent decrees
• Rate courts and “reasonable rates”
• How consent decrees allow new streaming services to operate without paying for a license
• The differences between the ASCAP & BMI consent decrees
• How the PROs want their consent decrees to be relaxed to allow for sync and mechanical licensing
• How the Department of Justice ruled on 100% Licensing rather than addressing long-standing industry concerns
• An explanation of 100% Licensing vs. Fractional Licensing
• Who owns what in a collaborative effort
• “Absent a written agreement”
• How 100% Licensing impacts working musicians, the heirs of musicians who have passed, and musicians working outside the US
• How the DoJ’s ruling vitiates existing contracts
• The Copyright Office’s reaction to the DoJ’s ruling
• How the DoJ’s ruling might prevent many artists from collaborating with each other
• Who benefits from 100% Licensing (hint: it’s not you)
• The PRO’s challenges to the ruling, and potential outcomes
• A recap of Fair Use principles
• Some Fair Use hypothetical situations for composers, performers, and educators

Links: Marc Ostrow: 100% Licensing summary and reaction Marc Ostrow: Letter to DoJ U.S. Copyright Office’s reaction to 100% Licensing ruling MusicTechPolicy Podcast explaining 100% Licensing Marc Ostrow: “Do You Have The Chutzpah To Take A Gamble On Fair Use?”