Pink Floyd v EMI – A Momentary Lapse Of Reason?

Pink Floyd, one of the most popular bands of all time and responsible for such record-breaking “concept” albums as “Dark Side Of The Moon”, “Wish You Were Here” and “The Wall”, have won the right to prevent record label EMI from selling songs from their albums for download as individual tracks in a dispute which will be watched very carefully by both the music industry and online music retailers.

The claim started in April 2008, with the Band, who have been signed to EMI since 1967, alleging that they were owed substantial royalties from their label. Last week’s hearing saw further details of the dispute being made public, including the fact that it deals mainly with royalty payments for the online sales of Pink Floyd’s back catalogue through outlets such as iTunes.

That issue and many others have to be resolved, but in the meantime the High Court in London found that the most recent contract between Pink Floyd and EMI, signed before online music download services such as iTunes became popular and containing a clause stating that EMI had “no rights to sell any or all of the records as single records, other than with [the Band’s] permission”, should apply to downloads of their work sold online as well as physical copies.

Bands suing their labels is nothing new and Pink Floyd in particular are no strangers to litigation, either between the former members of the band in the case of frontman Roger Waters attempting to stop the remaining members from continuing to record under the “Pink Floyd” name in the mid 1980s or in claims made against them by third parties – such as the case of session musician Claire Torry, who took action against them in relation to her uncredited contribution to “The Great Gig In The Sky”, one of the best-known tracks on “Dark Side Of The Moon” which remains one of the biggest-selling albums of all time.

The hearing last week dealt mainly with the details of the contract between the Band and EMI. The point which they have made should be of very little surprise to their fans – the Band (pioneers of the “concept album”) have always wanted their albums to be listened to as a whole and fiercely resisted releasing singles from their earlier work apart from the notable exception of “Another Brick In The Wall, Part II” in 1980.

The issue here was over the interpretation of the word “record”, which EMI’s legal Team argued should only mean physical copies of the Band’s albums rather than online versions. The Judge found that the clause in question was meant to preserve the Band’s artistic control over their work.

Internet downloading, as well as being a source of major concern for the Music Industry, has opened up a whole new revenue stream for existing acts by exposing them to a new generation of fans who prefer to download to an iPod rather than listen to vinyl.

The Pink Floyd back catalogue is hugely valuable to EMI, second only to that of the Beatles-who have so far chosen not to make their work available for legal download except for on an Apple-branded USB drive at the end of last year for around £200. Many of the major artists who have so far refused to allow their work to be sold online as individual tracks, including AC/DC – whose album “Black Ice” was one of the biggest-selling releases of 2008, have done so either for the same reasons as Pink Floyd or the simple fact that they receive a lower royalty payment for songs sold individually.

It remains to be seen whether this case will lead to the return to popularity of Albums generally if the music industry bows to pressure from artists to sell their work as a whole, as one of the major selling points of online distribution remains that listeners can pick and choose individual songs by groups which they are discovering for the first time and with iTunes in particular offering a “Complete My Album” feature in recent releases of the software as well as the “Genius” tool which suggests similar artists that a user may like according to genre or popularity, there is a strong commercial argument that selling tracks individually may be more beneficial over the long term, acting as “trailers” for entire back catalogues which can now be purchased in one fell swoop.

This case is potentially of huge importance to the Music Industry, as many acts who negotiated deals with their labels before the advent of legal download services such as iTunes will probably be reviewing the terms of those contracts with a view to renegotiating royalty agreements for online sales. It must be said, however, that this case only deals with Pink Floyd’s own arrangements with their label rather than the industry as a whole and it remains to be seen how far-reaching its effect will be. So far, EMI have only been ordered to pay an amount towards Pink Floyd’s legal costs but the final award in unpaid royalties at the end of this case could be extremely high.

What has so far been absent from the case has been any mention of the Band’s “Moral Rights” in their back catalogue. Unless waived, Artists may use these rights to object to what they view as “derogatory treatment of the work which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director”. George Michael chose to do so in the 1980s when the “Bad Boys Megamix” of Wham’s back catalogue was found to be capable of such a “mutilation”. One of Pink Floyd’s objections to EMI’s sale of their work is that parts of their songs were sold as mobile phone ringtones, in itself a hugely profitable market.

The chances are that the Moral Rights issue will have been dealt with in Pink Floyd’s most recent contract, but as more details of this dispute become public it will be interesting to see if this is the case given the Band’s history of monitoring how their work is exploited very carefully – their “Best Of” Album “Echoes” was famously mixed in such a way as to make it appear seamless, even though its individual tracks came from different albums made over a twenty-year period.

What we can say about the case at this stage is that any act who signed a deal with their label which did not specifically deal with the sale of their music online should now consider whether that original contract is still fit for purpose. If not, then their labels may well try to “Run Like Hell”, rather than “Have A Cigar”.

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