Duke Ellington has been dead for 40 years, but his record company, EMI Music Publishing, is still playing hardball with the jazz great’s cut of the loot.
A long-running dispute over the terms of a contract signed in 1961 was finally settled in a New York appeals court last week, in a decision that says a lot about the increasingly complex recording industry.
The terms of the original contract had guaranteed Ellington 50 percent of total revenue, or “net receipts,” earned by foreign sales of the legendary pianist, bandleader, and composer’s work.
But when EMI started working with a foreign publisher to distribute Ellington’s music in recent years, the foreign publisher struck a deal that allowed it to keep 50 percent of the profits before paying EMI. Since the contract called for Ellington to get half of whatever EMI was earning, the arrangement essentially reduced Ellington’s cut to 50 percent of 50 percent.
The deal wasn’t exactly a great one for Ellington. But, hey, if EMI needed a foreign distributor to make some sales, maybe that was the price the estate had to pay to sell a few extra records.
The only problem was that the foreign distributor was, in fact, an EMI affiliate. In essence, the company was paying itself to distribute its own catalog.
That “double dipping,” in the plaintiff’s view, was unfair, because it meant EMI had been taking fully 75 percent of the money generated by Ellington’s sales overseas.
Ellington’s grandson, Paul, sued EMI in 2010, and last week an appeals court sided with the record company.
The judge acknowledged that the situation had put Ellington at a disadvantage.
“We note that the globalization of the music industry has rendered this ‘net receipts’ arrangement much more favorable to music publishers than to artists,” the judge wrote. “Nonetheless, we must examine the parties’ intentions based on the plain language” of the agreement, which said nothing about the kind of quasi-independent affiliate arrangements that EMI had struck with its foreign “partner.”
Edward Kennedy Ellington is one of the most prolific and influential jazz musicians in history, as a bandleader, composer, and a virtuosic pianist in his own right. He was only two generations removed from slavery when he was born in Washington, D.C., in 1899, working his way up playing parties for socialites and the D.C. elite. His polished demeanor and charisma earned him the nickname “Duke” at an early age.
He became an early crossover hit with mainstream audiences, going a long way to moving jazz into the forefront of American music in the 1930s and ’40s. His partnership with Irving Mills, a publisher and music promoter, brought Ellington to fame. But Mills also managed to secure extremely favorable terms with the musician, essentially owning half of Ellington’s early work product, and he has writing credits on many of Ellington’s compositions.
Ellington earned a Presidential Medal of Freedom, a Pulitzer Prize, and 13 Grammys over the span of his long career. Here he is in action, in a YouTube video that features a short ad. Hopefully he’s earning something off of each play.
The full text of the decision is on the following page.