• All in All It's Just Another Band Selling Out
  • January 21, 2011 | Author: Elisabeth A. Moriarty
  • Law Firm: Greenberg Glusker Fields Claman & Machtinger LLP - Los Angeles Office
  • Over the past several months, my husband and I have been listening, along with our eight-year-old daughter, to the Harry Potter books on audiotape. (By the way, even if you’ve read the books, you owe it to yourselves to buy/download/rent the audiobooks — Jim Dale totally rocks). We are currently in the final stretch and are more than half way through Book 7; we also have a family pact that none of us will cheat and continue ahead unless the whole family is in the car together, collectively slogging through L.A. traffic and ready to listen.

    Of course, I’m bouncing off the walls, dying to know how the story ends — who wins, who loses, who lives, who dies. (Okay, stop jeering¿yes, I am the only person on the planet who doesn’t know what happened at the end of the series. And the statute of limitations on spoilers has long since passed. I get it. But pretty please, find it in your hearts not to ruin the ending for me by posting it in our comments section.) [Ed. Note: Instead, please enjoy this collection of unrelated outdated spoilers: Bruce Willis was dead the whole time. Vader is Luke’s father. Dil is actually a dude. It was earth all along. Soylent Green is people. Norman’s mother is dead.] Of course, if I was a cold-hearted mother and wife, I could keep listening or even just fast forward to the end, just to find out what happens. Don’t worry, I won’t — because I promised (and because my commute is less than 5 minutes).

    Serendipitously, the recent internet chatter surrounding Pink Floyd’s dispute with EMI coincided with the timing of my Potter predicament, and it got me wondering: are my familial contract and my motherly moral compass the only obstacles precluding me from jumping ahead and listening to the last track of the CD? Could J.K. Rowling herself somehow dictate the order in which I read/listen to the details of her story? Pink Floyd apparently thinks so.

    For those of you who haven’t heard (spoiler alert!), last year, Pink Floyd sued its longtime label, EMI, for permitting iTunes to sell single tracks of their music online, divorced from the entire album itself. The band argued that they created “concept albums” — albums in which the songs are unified by a theme and, taken together, are intended to tell a story (or, if you believe some folks, to tell someone else’s existing story). It is for that very reason, said the band, that their contract with EMI required Pink Floyd music to be sold as an entire album, containing tracks in a specified order, and not as single tracks. The band contended that, by allowing listeners to download individual tracks online, EMI had compromised and misrepresented its artistic vision. EMI, for its part, argued that the contractual prohibition against selling singles without the band’s prior permission applied only to physical copies of the songs, and not to online sales through services such as iTunes, which weren’t even in existence at the time the contract was made (and probably would have blown the minds of Pink Floyd’s drug-addled listeners in the 1960s had you explained the concept of iTunes to them at the time).

    Pink Floyd’s lawyers got off to a fast start in the case. In March 2010, they persuaded a London High Court that the band’s contractual prohibition against “unbundling” of songs from their original album contexts served to bar EMI’s digital sales of singles. In December 2010, the band successfully blocked EMI’s appeal. And throughout the process, the band emerged as the darlings of prog rock pointy-heads who lauded the group’s courtroom victories as “a triumph for artistic integrity.”

    Now, I don’t quarrel with the basic legal tenet at issue here: a contract is a contract. Yet the band’s reasoning strikes me as, well, somewhat oppressive and domineering. Are Floyd fans duty-bound to listen to albums straight through to preserve the “sanctity of the narrative” that the band created? And can artists really dictate how people enjoy their art?

    Personally, I agree that it is truly an entertaining experience to listen to Wish You Were Here or The Wall from start to finish, but others may disagree. I knew someone in junior high who only wanted to listen to "Suffragette City" and couldn’t care less about the other trials and tribulations of either Ziggy Stardust or the Spiders from Mars. Wasn’t that his prerogative? (Incidentally, "Suffragette City" was later issued as a single, but it reportedly failed to chart, unlike the album from which it came.) It would seem uber-controlling to enable The Who to force you to have the whole “Tommy experience” if you only want to listen to "Pinball Wizard." And if you only have the time (or the inclination) to listen to the Overture from Marriage of Figaro, could Mozart force you to sit through the whole opera? (Well, he’s dead [just ask that Salieri guy], but you get the gist.)

    The band’s argument rings especially hollow in the digital age, in which people (particularly people much younger than I) have grown accustomed to picking and choosing the songs they want to spend their hard-earned dollars on, rather than being effectively compelled to buy tracks ten-at-a-time. But your iPod’s “shuffle” feature doesn’t present a truly new or unique challenge to Pink Floyd’s desire to preserve their concept albums: CD players always came with “next track” buttons, tape decks could fast-forward and rewind, and it doesn’t take much practice with a record player to figure out how to lift and drop the needle just so.

    (Nor are musicians unique among artists in their desire to present their craft in deliberate, unified form — or in their inability to ultimately control how their audience experiences their art. Even if I can’t buy the last chapter of Harry Potter and the Deathly Hallows without the rest of the book, I can certainly read it first — or just skip it altogether and re-read my favorite book of the series, Goblet of Fire, thereby creating a bizarre continuity where Harry just relives his wondrous fourth year at Hogwarts over and over.)

    Okay, so maybe I don’t agree with Pink Floyd’s unrealistic efforts to control the conduct of its fans by clamping down on its record label, but at least I can respect their willingness to forego sales, and therefore money, to preserve the artistic integrity of their...

    Wait...

    What’s that about Pink Floyd, for decades, allowing radio stations to play single tracks from their concept albums without complaint?

    And what was that about the band settling with EMI last week and entering into a new five-year deal which will “help the band reach new and existing fans” by selling their “incredible body of work” via singles online?

    Sigh.

    Go ahead and insert your favorite line from that old Pink Floyd standby, “Money,” here (any one of them will do, I’m sure). Of course, “Have a Cigar” would be appropriate too: “And did we tell you the name of the game, boy? We call it Riding the Gravy Train...”