Pink Floyd win historic victory with EMI over downloads
Pink Floyd won a ruling at the High Court today which will bar record company EMI selling single downloads from their concept albums.
The band was apparently successful over a challenge on the level of royalties paid by the record company but this part of the judgment was held in secret.
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Dark Side of the Moon
Chancellor Sir Andrew Morritt accepted arguments by the group that EMI was bound by a contract forbidding it to sell its records other than as complete albums without written consent.
The judge said the purpose of a clause in the contract was to “preserve the artistic integrity of the albums”.
Pink Floyd alleged and EMI agreed that it had allowed online downloads from the albums and had allowed parts of tracks to be used as ringtones.
The record company had argued that the contract related only to physical records and not to online distribution.
Sir Andrew granted the band the declaration they sought – that the contract means EMI is not entitled to exploit recordings by online distribution or by any other means other than the complete original album without Pink Floyd’s consent.
EMI had successfully applied to the court for the royalties aspect to be kept secret for reasons of “commercial confidentiality”.
Lawyers said it was the first time a royalties dispute between artists and their record companies had been held in private, excluding the media and public.
Sir Andrew ordered EMI to pay Pink Floyd’s costs of the case, estimated at £60,000, and refused the company permission to appeal.
Robert Howe QC, representing the group, had told the judge the agreement negotiated in the 1990s contained a clause that prohibited single track downloads without express consent.
It banned what was referred to as “unbundling” – the selling of record tracks, either physically or online – “other than in their original configuration”.
Mr Howe said the band was well known for producing “seamless” pieces of music on albums and “wanted to retain artistic control”.
The dispute involved an agreement reached several years before the download market was launched in the UK by Apple through the iTunes Music Store in 2004.
Mr Howe said both parties had been faced at the time with a whole new world of potential exploitation of music “and quite simply they didn’t know how that would work out”.
He said it would have been “a very odd result” if members of Pink Floyd were able to control exactly how their music was sold as a physical product but there was “a free-for-all with no limitation on online distribution”.
He said: “Prohibition applies equally to the digital product as it would to the physical product, as one would expect from the commercial purpose of the clause. There would be a digital free-for-all otherwise.”
Elizabeth Jones QC, appearing for EMI, disagreed and said the word record “plainly applies to the physical thing – there is nothing to suggest it applies to online distribution”.
Pink Floyd signed with EMI in 1967 and became one of its most lucrative signings, their back catalogue being outsold only by that of The Beatles.
Roger Waters, who co-founded the band with Syd Barrett, Richard Wright and Nick Mason, has a fortune estimated at £85 million, according to the Sunday Times Rich List.
24 Comments
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by Joe K, Barton & Tredworth
Tuesday, March 16 2010, 9:34AM
“Pickle, good point well made :)
Geraint, I suppose the answer to your question is that Wagner never got his record company to agree to a clause about how his music was reproduced. Pink Floyd won on a legal point, not a principle.
I have a CD, by Neil Young I think, where all the songs are on one single track. Confused the hell out of me when I was trying to 'cue' a particular song.”
by Steve, Cheltenham
Monday, March 15 2010, 11:43PM
“Anyone still got the CD with the flashing light?
Now, that's something you can't get on download!”
by Miss Superstar, Far, far away
Monday, March 15 2010, 11:40PM
“Try getting a Vengaboys album on iTunes!!”
by Steve, Cheltenham
Monday, March 15 2010, 11:37PM
“But would anyone expect to go into a print shop and buy a copy of the Mona Lisa's left ear (wanted to say something else then) because they didn't like the look of the rest of her? NO!
If a work of art is conceived as a whole, then that is how it should be enjoyed. I remember EMI selling Relics on the Music for Pleasure label, alongside acts like Val Doonican (Hullo there), Ken Dodd et alia.
And what about Eric Prydz versus Pink Floyd (Proper Education)!”
by Simon, Dursley, Glos
Sunday, March 14 2010, 8:23PM
“I bought Dark side of the moon (on vinly with stickers and posters inc) when I was twelve with my hard earned pocket money. I learnt to play guitar and have played Pink Flyod songs for the last 25 years, by myself and to the public. I can't remember paying them anything for the privledge. As music progresses and we listen to music differently, mp3's, Spotify, downloads, even those that wrote the music shouldn't tell us how to listen to it. This is progress. Progressive music and concept albums are great but everyone has their favorite bit of the overture, mine was the solo in Time, I listen to that over and over again. No concept there just a lesser and poorer mortal learning from a richer master.”
by One Living In The Real World, On This Side Of The Moon
Saturday, March 13 2010, 6:36PM
“These musicians(?) are like Premier League footballers, vastly overpaid! A once a week kick about or a session in the recording studio should not make you a (multi) millionaire or even more ridiculously give you a `Sir` title. That title should be `Greedy and Selfish`.”
by Ed, Cleeve
Friday, March 12 2010, 6:55PM
“I think you're all missing one fact and that is PF included a clause in their contract with EMI during the 1990's specifically stating that their music could not be sold as individual tracks.
The courts agrred that this clause is still valid and ruled accordingly. Now if EMI didn't agree to this clause then they shouldn't have resigned PF on a new contract that included it.
I suspect at the time, PF back catolgue music in LP or CD format continued to bring good revenue sources into EMI's coffers, without the need to spend large sums luring PF to produce any new music.
As a fan of PF I agree that listening to an entire album is more enjoyable for their own type of song writing, however newer manufactured, plastic untalented, euro-trash sounding, fake wannabies will only succeed in releasing either a few poorly produced cover songs or rubbish rin-tin-tin cheap pap that quickly finds its way to your local car boot sale before they're out the record label rigged charts. These are the types of music that kid want to download as an album is usually damaging to their health let alone my wallet!
At the end of the day whether you agree with the ruling or not EMI can't complain as they agreed in writing to accept the terms PF demanded. Both parties loose out in real terms as PF music could reach a new generation through down loads although I expect they don't care as these timeless gems are real classics which continue to sell well in their current form. E'G the new remastered audio-phile vinyl copy of Dark Side of the Moon regular sells for £20- £25, and it sounds superb. These are the artist that Slyman Cow-hell can only dream about.”
by Anna Notherthing, Glos
Friday, March 12 2010, 4:29PM
“an observer, severnside,
agreed, bori..............................ZZZZZZZZZZZZZZZzzzzzzzzzzzzzzzzzzzzzzzzzz!”
by an observer, severnside
Friday, March 12 2010, 2:17PM
“Pink Floyd is my generation. I found most of their music a little depressing back then, but nothing like as depressing as I find their selfish attitude now.”
by Joanna Dance, Glos
Friday, March 12 2010, 1:34PM
“Last few comments very anti PF.
Agreed, arrogance in the extreme.
Bit like Cliff Richard wanting royalties FOREVER.
He's got so much money, how about giving the royalties to Great Ormond Street.
It's not like composers invented notes. They were already there, they just put them in some sort of order.”