The news media and the blogosphere are awash with reports of Pink Floyd’s victory last Thursday in a lawsuit in England against its label, EMI, over the right to distribute digital downloads of individual tracks from The Floyd’s classic concept album, The Wall. The band insists that both its artistic vision and, more important, its contract with EMI mean that “unbundling” the songs without the band’s permission is forbidden.
Naturally, the real dispute seems to be as much about royalties as it is about the artists’ rights of integrity.
Among the many helpful reports are these: The New York Times, The Guardian, and The Australian.
What inquiring legal minds want to know is this: What does the relevant contract actually say? The court’s judgment is not available yet, from what I can tell. According to The Australian, the deal was negotiated in (or around 1999), and the language in question is this:
“There are no rights to sell any or all of the records as single records, other than with (Pink Floyd’s) permission.”
The court had to decide the meaning of the word “records,” which appears twice. Presumably there is also a grant of rights, to which this is a limitation, reservation, or exception, but I don’t know what the grant of rights said. According to the Times, the judge “accepted arguments” that the purpose of the clause was to “preserve the artistic integrity of the albums.” But of course the text of the contract does not say that, and one might reasonably conclude that if that were Pink Floyd’s goal, then the band should have taken care to hire counsel who could manifest that in clearer language. Having failed to do so, the ambiguity in the meaning of “records” might then be resolved in favor of EMI. It is certainly plausible to suppose that as of 1999, “records” still referred to physical media.
In the US, there is an interesting line of similar cases having to do with ambiguous contract language and new markets and uses for copyrighted works to which that language applies – or might apply. Those include Herbert Cohen v. Paramount Pictures, Boosey & Hawkes v. Walt Disney Co., and Random House v. Rosetta Books. I had the good fortune today of teaching that line of cases today, then offering Pink Floyd’s case as a concluding hypothetical.
Not surprisingly, it appeared that few of the students had ever heard, or heard of, Pink Floyd. [Updated: It now appears that my students’ blank expressions were generic blanks, not PF-related blanks. Just about all of them aver familiarity with PF, which is consistent with Pittsburgh radio’s AOR fetish.] For anyone who would like a reminder, here’s a YouTube clip of “Money” as part of Laserium show:
It wouldn’t surprise me if record is defined elsewhere in the contract. Also, given that “record of the year” in the grammys refers to a single song, it seems like that definition is a likely one.
I would expect a well-drafted contract to have a definition, but I would be surprised if a definition were present here – if only because that would make the litigation itself so much more implausible.
It wouldn’t be the first time a big company took an implausible position to avoid paying (says the former plaintiff’s lawyer) 🙂
Now, now, let’s not entirely blame the contracting parties.
The underlying statutes are at least as much a mess, so all they did was further screw up something that was already screwed up.
Specific example: Both the (US) Copyright Act of 1976 and (UK) Copyright, Designs, and Patents Act of 1988 base a lot of deadlines and rights upon the date of publication of a copyrighted work. Please point out the section in each act that defines what that means… for all copyrighted works. (Hint: I’m not holding my breath.) This failure of definition has cascade effects into a truly dizzying feedback loop between publishing contracts of all kinds of material and the respective underlying acts; and that particular feedback loop ended up squarely in the middle of Rosetta Books.
Now throw in the continued insistance by the terms of the contracts-of-close-to-adhesion in both music and print publishing that we’re still operating under the indivisible-copyright regime of the 1909 Act in the US, and things get really interesting. Not in a good way.
I think ultimately that my point is that the contract shouldn’t have had to define something so critical to the very nature of the work; that’s the responsibility of the statute drafters.
As you note, the word “records” appears twice — but once as part of the phrase “single records”. Maybe EMI argued that the word “records” means the same thing in both contexts, but Pink Floyd argued that “single records” is a term of art that might be defined outside the contract? It does seem like sloppy drafting, either way.
I note that the Academy of Country Music Awards includes categories for “Album of the Year”, “Song of the Year”, and “Single Record of the Year”.
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