Pryor Cashman Wins Appeal Affirming Dismissal of Claims Brought by Duke Ellington's Heirs Against EMI Mills Music, Inc.
Pryor Cashman has won a major appellate victory on behalf of long-time client EMI Music Publishing.
On May 2, 2013, the N.Y. Appellate Division (1st Department) upheld the dismissal of a putative class action brought by Duke Ellington's grandson, Paul Ellington, against EMI in which Ellington claimed that EMI’s use of affiliated foreign subpublishers constituted “double dipping” and demanded payment of foreign royalties calculated “at the source.” Plaintiff', based on its theory was that EMI Mills’ was improperly deducting the royalties of EMI-affiliated subpublishers before calculating the royalties due to songwriters (or their heirs) for exploitation of his compositions, sought damages for breach of contract and fraudulent concealment.
In the first known appellate decision on this issue, the Appellate Division rejected this contention and adopted EMI Mills's arguments, holding specifically that where a writer enters into a “net receipts” agreement, unless the contract distinguishes between the fees payable to affiliates and non-affiliates, there is no reason why an affiliated foreign subpublisher should be any less entitled to a fee than an unaffiliated subpublisher.
The Appellate Division affirmed the decision of the Court below, which had declined to certify the class and dismissed the action in its entirety, finding that Ellington’s 1961 “net receipts” agreement unambiguously entitled Ellington’s heirs only to a percentage of the income derived from exploitation of his works based on the net income actually received by EMI Mills Music, Inc. from foreign subpublishers, regardless of whether the subpublisher was affiliated with EMI Mills.
Donald Zakarin, Chair of Pryor Cashman’s Litigation Group, along with associates Bryan Mohler and Benjamin Akley, represented EMI in the litigation both in the Court below and on appeal.
To read the court’s decision, please click here.
The case has received widespread press coverage. To read a sample of the reporting, please click here.
