Duke Ellington’s Family Can’t Increase Royalties

(CN) - EMI Mills Music can keep paying its own foreign subsidiaries before splitting royalties from Duke Ellington's music with the jazz legend's family, even though the 1961 songwriter agreement predated EMI's purchase of foreign music publishers, a New York appeals court ruled.

In 2010, Duke Ellington's grandson Paul sued EMI Mills Music in New York County Supreme Court, claiming the company promised to hand over half of Duke's foreign publishing royalties, but effectively paid itself twice and only gave the family 25 percent.

Ellington said EMI a worked out a scam to keep 75 percent of the royalties by "funneling foreign publishing royalties through EMI-affiliated foreign subpublishers."

The complaint said EMI had its own foreign affiliates keep half of the royalties, while sending the other half to its state-side counterpart. That way, on paper, it looked like the recordings were only making half as much. Then, EMI would send half of the money its foreign affiliates had forwarded, so that the family was splitting only a quarter of the total foreign royalties, Ellington said.

While the artist's family received fewer royalties, EMI was "double-dipping, retaining both its own share and that of its foreign affiliate," according to the complaint.

Of the family's share, Ellington said he keeps 40 percent, while his three siblings get 20 percent each.

EMI moved to dismiss Ellington's complaint, which the court granted in December 2011. Ellington appealed.

In a per curiam opinion, a five-judge panel affirmed the dismissal of the complaint.

"In dismissing the complaint, the motion court declined to read into the royalty payment terms any distinction between affiliated and unaffiliated foreign subpublishers inasmuch as the contracting parties themselves chose not to make such a distinction," the order states.

"Moreover, the complaint sets forth no basis for plaintiff's apparent premise that subpublishers owned by EMI Mills should render their services for free although independent subpublishers were presumably compensated for rendering identical services," according to the ruling.

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