December 07, 2011 12:24pm PT by Eriq Gardner
Songwriter Claims BMI Isn't Accurately Tracking Use of Music on Television
Deyon Davis is a songwriter and the head of a business that claims responsibility for representing hundreds of songwriters in placing their music in films and on hit TV shows like American Idol, So You Think You Can Dance and Jersey Shore. A year ago, Davis was sued by BMI, the performance royalty collection society, for submitting falsified "cue-sheets," allegedly obstructing the organization's calculation of royalties. On Friday, Davis struck back with a bold counterclaim that alleges that BMI has engaged in a broad scheme to rip off songwriters and publishers.
BMI licenses several TV networks so that shows airing on these channels can air music during programs. When TV shows air music, producers are tasked with keeping track of the names of songs, how the music is used, and for for how long in "cue sheets" given to BMI. These sheets are the primary way that performance rights organizations keep track of music on television and apportion their licensing revenue to songwriters.
In its lawsuit against Davis last December, BMI accused him of submitting falsified cue sheets that allegedly made it difficult to track song usage and calculate proper royalties. After allegedly discovering anomalies, BMI approached various TV producers in an investigation and says it found that Davis was overpaid by $1.5 million and others were overpaid by hundreds of thousands of dollars.
Davis has denied those charges and on Friday, he lashed out against BMI with a noteworthy counterclaim. Here's the opening flourish:
"Metaphorically speaking, BMI is a bully. BMI deceptively lures unsuspecting songwriters and publishers into its playground (BMI's performing rights licensing and royalty system) with the promise of fun (the fair calculation and payments of royalties) and then spends the day bossing them around, beating them up and taking their toys."
Davis goes on to claim that BMI "deliberately employs an unclear royalty calculation system for tracking public performances in order to decrease the amount of royalties it must pay to its affiliates."
BMI is then charged with "serving as its own judge and executioner."
Indeed, after BMI filed the lawsuit against Davis, it allegedly withheld payments from him to make themselves whole. Davis says he hasn't received anything in a year and a half, which he argues is tantamount to rendering any defense of BMI's claims to be pointless. He's countersuing for breach of contract, breach of implied covenant of good faith and fair dealing, conversion, negligent misrepresentation, negligence, and more, demanding nearly $400,000 in compensatory damages and an order that would enjoin BMI from "utilizing misleading statements in advertisements and promotional material regarding its ability to accurately track public performances of its affiliates' copyrighted works on television shows."
BMI responds that it won't comment on pending litigation.
Here's Davis' counterclaim: