After Alabama’s passage of new restrictions on abortion, pro-choice protests have taken many of the 50 states by storm, and everyone and their mother has had the urge to weigh in on the debate. Even Dee Snider, the Twisted Sister front man and lead singer of rock anthem “We’re Not Gonna Take It,” has gotten in on the fun.
For his part, Snider is taking the dialogue further than most. He is not just a vocal soldier in the pro-choice camp but a mercenary who is implicitly threatening to sue any pro-life politician that uses his music in rallies and events.
“There’s a simple litmus test here: Are you pro-choice?” he told Lyndsey Parker of Yahoo! Entertainment. “And by pro-choice, I mean all choices. I mean, pro-people’s right to choose, particularly a woman’s right to choose. I feel very strongly. And that is the litmus test.”
If Snider follows through, he won’t be the first musician to pursue legal action against pro-life conservatives for using their music. In November, Rihanna’s legal team sent a cease-and-desist letter to President Trump for playing “Don’t Stop the Music” at a rally, as did Steven Tyler’s representatives earlier that summer, as well as plenty of other musicians in the previous presidential election cycle.
But do these singers’ threats against defenders of the pro-life movement have any legal basis? Upon looking at the legal framework in the music industry created by the Department of Justice, which is currently being reviewed by Attorney General William Barr, the answer for the vast majority of musicians’ songs is an unequivocal no.
Two institutions, called the American Society of Composers and Publishers, and Broadcast Music Inc, control the public performance rights to just about every song in America. To play music, all businesses must contact and pay them.
For the longest time, these organizations have been under antitrust agreements, known as consent decrees, with the DOJ to get their behavior under control. That’s where the trouble for musical artists like Snider come in.
The decrees state that ASCAP and BMI must grant public performance rights for every song in their repertoires to any party willing to pay their fairly priced annual licensing fee. That means that the decision of who can play which songs when is almost entirely out of the hands of the performers themselves.
Some might argue that this set-up is unjust and against free-market norms, but the truth is anything but that.
ASCAP and BMI ease the licensing process on small businesses, allowing them to do business with two institutions as opposed to the accounting nightmare of dealing with every individual song’s stakeholder; nevertheless, their consent decrees came into place amid complaints that ASCAP and BMI were engaging in anti-competitive behavior.
Indeed, the only reason ASCAP and BMI exist is because music publishers, who are otherwise competitors, banded together into these two organizations to pool their market share together. In other words, all of these small players in the industry joined forces into two big institutions so they could push prices higher on consumers and small businesses — hence the need for settlement agreements with the DOJ.
Performers like Snider can whine that they can’t control who plays much of their music all they want, but it was their choice to sign up with ASCAP and BMI. If they don’t like the terms ASCAP and BMI agreed to with the DOJ, they are free to go out and negotiate with businesses by themselves on the free market instead of working with them. If not, though, they must realize that working with two organizations that have a history of disrespecting the competitive marketplace has gives-and-takes associated with it.
Instead of jumping ship and unlicensing all their songs from music licensing groups, though, perhaps Snider and his friends should choose to stop politicizing the music industry instead.
While there have always been a John Lennon or John Fogerty within each generation that included political undertones in their music, up until recently, performers have by and large stayed out of the political spotlight and allowed their listeners to use and interpret their songs in any way they saw fit. They would voluntarily play at every inauguration, regardless of the new leader’s political party, to celebrate the peaceful transition of power and welcome men and women of all colors and stripes at their shows.
Now, they are helping to sow more division in an already-polarized political environment, telling Americans with red political hats to stay home, all while filing toothless lawsuits against politicians that have different views.
The entertainment industry is supposed to bring people together, not push them further apart. The time to reverse this backward trend is now.
Kevin Mooney (@KevinMooneyDC) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an investigative reporter in Washington, D.C., who writes for several national publications.
