When dealing with a person’s incapacity or death, the family members and fiduciaries should consider the value of the person’s digital intellectual property. If the person was a musician, family members and fiduciaries should review music publishing contracts regarding digital publishing provisions, especially with increasing digital music sales. In the U.S., digital music sales are expected to exceed retail sales of CDs in 2010 (cite).
On March 11, 2010, the music group Pink Floyd won a lawsuit against its publisher, EMI, regarding digital sales of individual songs as opposed to sales of the entire album (cite). Their publishing contract pre–dated digital music distribution, and one contract clause prohibited EMI from selling Pink Floyd’s music recordings in any configuration other than the original. While record publishers typically say the same contract terms apply to physical sales of CDs as to digital sales, here EMI argued the opposite—that this contract restriction applied only to physical sales but not to digital sales. EMI had been selling digital versions of Pink Floyd’s individual songs on Apple’s iTunes store. The U.K. High Court ruled that EMI violated the contract restriction.
So, if you are working with a musician or a musician’s estate with one of these older music publishing contracts, you should consider the options available for digital publishing rights.