See EMI(ly) Pay – thoughts on Pink Floyd v EMI

You may have read that Pink Floyd recently won a legal case against their record company EMI. The case was decided a few weeks ago, but I delayed reporting it for reasons I shall explain.

The facts were that the band claimed EMI was breaching a 1999 Master Licensing Agreement by “unbundling” Pink Floyd albums and making individual tracks available for download, despite an express contractual prohibition against selling “albums in any configuration other than the original configuration”.

Pink Floyd said that the aim of this contractual prohibition was to “preserve the artistic integrity of the albums” and therefore had to extend to digital sales. EMI submitted that the word “album” in the contract referred to a physical object and there was nothing in the contract to suggest that “album” applied to on-line distribution. (A third viewpoint not raised in the High Court, but amusingly advanced by Jeremy Telman, Professor of Law at Valparaiso University, is that Pink Floyd albums were usually enjoyed in their entirety because listeners were never in any condition to get up off the couch and move the needle to individual tracks.)

In judgement Sir Andrew Morritt held that there was a presumption that the provisions of the contract were to extend to digital sales unless something in the nature of the product suggested otherwise. Accordingly EMI was not allowed to “unbundle” album songs for individual download. (Intriguingly part of the hearing, relating to a challenge over the level of royalties paid by the record company, took place in private – excluding the public and media – after EMI made an application citing commercial confidentiality. The relevant part of the judgement was also held to be confidential.)  EMI are expected to try to appeal the judgement, or at least aspects of it.

I held back on writing this post as I had a feeling the decision would be portrayed as some sort of artistic victory for the album format in the face of today’s download culture. And that’s exactly what has happened, with respected musicians such as Guy Garvey delivering gushing praise

I’m not sure I agree.

Does it not seem curious that a bunch of normally cash-obsessed rock musicians such as Pink Floyd (who let’s not forget are also arguing about royalty rates as part of their case) would seek to defend the “original configuration” of their recordings at the likely expense of sales? Could it be that, rather than defending the concept of the album (or indeed the “concept album”), they are actually seeking to improve their bargaining position with a view to agreeing on the sale of individual tracks at some point in the future?  “Do you think you can tell?”

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