EMI wins appeal on Ellington pay

ALBANY, N.Y. -- New York's highest court has sided with EMI in the music publisher's dispute with Duke Ellington's heirs, but acknowledged global industry consolidation has made contracts like his much more favorable to publishers.

The late pianist, bandleader and composer wrote "It Don't Mean a Thing" and other big band hits. He signed the 1961 deal with Mills Music, predecessor of EMI, now part of global Sony/ATV Music Publishing.

The standard songwriter royalty contract specified an even split of net revenues between the publisher and Ellington. EMI presently deducts 50 percent commissions to foreign subpublishers that are now company affiliates before splitting the rest with Ellington's heirs.

His grandson Paul Ellington sued in 2010, alleging breach of contract.

Judge Sheila Abdus-Salaam wrote that "globalization of the music industry has rendered this 'net receipts' arrangement much more favorable to music publishers than to artists." But, she added, "we must examine the parties' intentions based on the plain language within the four corners of the agreement."

Richard Scarola, an attorney representing Paul Ellington, said hundreds of thousands of dollars were at stake, and potentially millions on behalf of many artists from the same period.

The state Court of Appeals split 5-2 Thursday in concluding the 1961 contract language was "unambiguous," binding only Mills and "any other affiliate" at the time.

Sony/ATV Music Publishing said it was grateful the courts found the company faithfully honored the terms of the 1961 agreement and that the use of affiliated subpublishers "has never diminished either the share of income or amount of income paid or payable to Duke Ellington or his heirs."

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