The Architecture of Compromise: Constructing the Music Modernization Act

William B. Colitre

Bill Colitre is the Vice President & General Counsel of Music Reports, Inc. In this role he serves as counsel to Music Reports, strategic consultant to its clients, and head of the company’s Licensing and Royalty Services divisions. He can be reached at BColitre@MusicReports.com.

[T]he field of music licensing is a highly complex architecture supported in part by relationships, split rights, side agreements and historical antiquities that are inextricably woven into current business models. Therefore, for any legislation to benefit and foster the industry, it must take these realities into account.¹

The Music Modernization Act ("MMA"),² signed into law October 11, 2018, is the most extensive revision of the Copyright Act³ since the Digital Millennium Copyright Act ("DMCA"), almost exactly twenty years earlier.⁴ Every industry probably considers itself complex in its nuances, but the Copyright Office, when describing the § 115 Reform Act of 2006 ("SIRA") to the House Judiciary Committee, suggested that "the sheer number and complexity" of issues in music licensing "render a holistic solution improbable, if not impossible."⁵ SIRA’s attempt at a relatively narrow solution had failed to attract consensus among rights owners in the music industry (performing artists and composers, music publishers and record labels, digital music services, etc.) on how to address certain problems, and what resulted twelve years later was an omnibus approach carefully constructed to balance at least some of the needs and interests of virtually all constituencies in the music business. This article provides an overview of how this grand compromise came together.