CONTRACT: A famous artist is suing a music publisher, again…..not quite. Kanye West v. EMI has all the hall marks of a juicy and exciting case. On one hand we have employment/ contract issues, on the other we have copyright and some very valuable rights at stake and on the other hand (if there is a third hand!) we have a multimillion dollar artist that wants to retire – but EMI are not having it.
In January, Pitchfork reported that West filed two suits: one against Roc-A-Fella Records, Def Jam Recordings, UMG Recordings, and Bravado International Group and the other taking aim at EMI. At the time there was not much to report as both complaints had been heavily redacted.
On Friday in Please Gimme My Publishing, et al v. EMI April Music, Inc., et al West’s complaint in Kanye West v. EMI was filed as an exhibit in discovery. You can read the document via the link below, but for now here are some comments:
Like most good disputes, there is a contract. In 2003 West signed with EMI and granted it the the publishing rights to his songs. The 2003 contract was for a term of three years with an additional optional year. Between 2003 and 2014 the West’s contract was extended a number of times. In a 2006 extension EMI ‘raised the bar on its requirements’, West was required to write twice the number of songs which were to be released by an artist whose immediately prior song has sold at least 600,000 units or on an album recorded by West. In addition, the extension sought to contract out of section 2855 of California’s Labour Code (see below) and perhaps the biggest blow was that it prevented West from retiring. Amongst other provisions, the 2006 extension states:
You (Mr. West) hereby represent and warrant that to [EMI] that You will, throughout the entire Term as extended by this Modification, remain actively involved in writing, recording and producing Compositions and Major Label Albums; as Your principle occupation. At no time during the Term will you seek to retire a songwriter, recording artist or producer or take any extended hiatus during which you are not actively pursuing Your musical career in the same basic manner as You have pursued such career to date. (The preceding representation shall not be deemed to prevent You from taking a vacation of limited duration.)
In English this contract provision means that West’s main job is as a songwriter/ artist/ producer, he cannot retire but he can take holidays (of limited duration). Obviously West and I are on completely different levels of the music industry but I am (for sure) pleased that I am not contractually restrained from retiring. Not that I am any near planning that! Section 2855 of California’s Labour Code prohibits personal service contracts for more than seven years. West’s complaint mentions the California Court of Appeal case of De Havilland v. Warner Bros. in which it was ruled that employer-inserted clauses purporting to contract out of section 2855 are void.
On the face of it, it appears that West has been contractually obligated to provide his services to EMI for double the statutory maximum length of time. Notwithstanding the fact that West cannot retire and is only entitled to take vacations of ‘limited duration’. Ordinarily, this would be a good story but it gets better. In addition to seeking a judicial declaration that EMI may no longer enforce the contract, West is seeking a declaration prohibiting EMI from exploiting the compositions he wrote under the contract from 2010 onwards. This is because it is claimed the contact became unenforceable by virtue of the 7-year rule in 2010. The complaint goes on to request that EMI hand over the ownership to the compositions and profits generated from those works from the last four years.
If West is successful and permitted to disaffirm the contract with EMI, he will recover the rights to the compositions, recover generated profits and best of all retire at a time of his own choosing! There is also massive potential for the floodgates to be opened for others to do the same. In any event, this along with the still redacted suit against Roc-A-Fella Records, Def Jam Recordings, UMG Recordings, and Bravado International Group are sure to make for a good read / retirement pot.
By Samuel O’Toole (www.lawditmusic.co.uk)