Pink Floyd won a tremendous victory in court this week against EMI, their record company. The trouble at issue was EMI’s “unbundling” of Pink Floyd albums to sell individual album tracks on services like iTunes instead of requiring consumers to purchase the entire album as required by their contract with the band.
EMI Group Ltd. should only sell the music of Pink Floyd, the band that recorded the best-selling album “The Dark Side of the Moon,” in full album format and can’t sell single songs online, a London judge ruled today.
The band, which sought clarification of their more than 10- year-old EMI recording contract, argued the agreement calls for albums to be sold as a whole with tracks in a specific order and not as singles, as they are on Apple Inc.’s online iTunes store.
“There is nothing in the terms ‘album’ or ‘record’ to suggest they apply to the physical product only,” Justice Andrew Morritt said in his judgment, which was a preliminary ruling in the case.
That ruling is terrific because it preserves the original intent of Pink Floyd. They wanted their albums to be experienced “as one” and not broken up into little bits and sold. The band felt so strongly about that preservation, they had the agreement to remain whole written into their contract with EMI.
EMI claimed in court an “album” is only the original vinyl and CD and that the contract dealt only with physical packaging and not the actual music:
While Pink Floyd’s lawyer, Robert Howe, argued the contract restriction should include music sold over the Internet, EMI’s lawyers claimed it only applied to the “physical product” such as compact discs and vinyl records.
The ruling gives Pink Floyd leverage to seek more royalties if the band decides to allow single-song sales in the future, said Ian Karet, an intellectual property lawyer with Linklaters LLP in London, who isn’t involved in the case.
The most interesting part of this Floyd Rights Fight is being under-reported in the mainstream press:
But the effect of the ruling by a judge in London on the level of royalties the band receives remained unclear, as that part of the judgment was held in secret, the Press Association reported. A source close to the band said those talks were “ongoing.”
Lawyers said it was the first time a royalties dispute between artists and their record companies had been held in private, after EMI successfully applied for a news blackout for reasons of “commercial confidentiality.”
The secrecy concerning royalty levels is incredibly telling if you fill between the lines, and those lines tell me the royalties for Pink Floyd albums are based on the whole and not of the breaking apart. EMI knows, like a classic car, you can make more money selling bits of an album — and parts of a car — than you can just selling the whole.
Pink Floyd disagrees, and they just won that point in court, but the problem remains that their albums were broken up and sold as song parts and that means, without question, Pink Floyd are owed more royalties than they have been paid: EMI paid Pink Floyd royalties based on the album royalty and not the non-existent, and not-allowed, and unwanted, individual song sale.
Pink Floyd wants their music to remain “as one” — but since EMI broke up their albums into individual song sales to reap a higher marketplace profit — the band rightly wants their share of the higher price point and that’s why there’s a still a $20 million dollar difference between what Pink Floyd were paid and what they believe they are still owed because of EMI’s breach.
I do wonder, however, how Pink Floyd feel about radio play of their
individual album songs. How are royalties calculated for broadcast
rights? Can Pink Floyd now turnaround and force radio stations to only
play their work as a full album and not individual songs?