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Survivor join the digital royalty fight

By | Published on Tuesday 4 February 2014


Ah, at last, the big punch up between veteran artists and the record companies over digital royalties has an appropriate soundtrack. Yes, Survivor are the latest band to go legal over the download money, mainly in relation to their 1982 ‘Rocky III’ soundtracking hit ‘Eye Of The Tiger’. Bam. Bam, bam, bam. Bam, bam, bam. Etc etc.

As much previously reported, a stack of artists with pre-iTunes record contracts have hit out at the labels for paying them a ‘record sale’ rather than ‘licensing’ royalty on downloads, even though download income stems from ‘licensing deals’ between the record companies and the digital service providers. Traditional record contracts usually gave artists a much bigger cut of the money from licensing deals versus record sales income.

Early Eminem collaborators FBT Productions won the landmark judgement in this domain in a legal battle with Universal, and since then a plethora of American heritage artists famous enough to have recouped on their original record contracts, but not so famous that they’ve been able to amend legacy agreements over the years, have filed litigation. Both Sony and Warner have proposed settlements offering artists a (very) slight increase on download royalties, while a few angry artists have reached their own deals, though loads of lawsuits remain pending.

Founding Survivor members Jim Peterik and Frankie Sullivan, the latter still performing with the band, have sued Sony Music for a ‘licensing’ cut of the revenue generated by their recordings, which they say should be 50% of the money (the record sales cut they are getting is likely to be somewhere closer to 15%). The same lawsuit also claims that the major still owes the duo money stemming from settlements the American record industry reached with the big file-sharing platforms of old like Kazaa, and alleges a bunch of other customary royalty gripes like improper deductions.

Adding the kind of drama you’d expect from a legal battle soundtracked with “Bam. Bam, bam, bam”, Peterik and Sullivan’s lawsuit also alleges that an unnamed Sony rep threatened the musicians with ‘the nuclear option’ if they went legal on the digital royalties issue. School boy error, never threaten born Survivors with the nuclear option. That, by the way, would be the withdrawal of Survivor’s big catalogue of hits – so mainly ‘Eye Of The Tiger’ – from iTunes entirely, depriving all parties of all and any download income.

But, say the Survivor duo, the fact that option exists proves the label has a licensing arrangement with iTunes. Says the lawsuit, according to Billboard: “A Sony representative threatened that in the event Survivor persisted in its objection, Sony would exercise what it termed ‘the nuclear option’ – removal of the Survivor masters from the songs licensed to iTunes for download by consumers, thereby wiping out that revenue stream altogether. By threatening ‘the nuclear option’, Sony has conceded that its transaction with iTunes is a license subject to termination, and not a sale of the Survivor masters to iTunes. If it was a sale, Sony would have no right to demand return of the songs”.

Knockout blow? Well who knows, we just wish one of these cases would get to the ring already so we can have a referee, or judge if you like, rule on whether the ‘FBT’ ruling sets an industry wide precedent. If said judge said ‘yes’, well then things would go nuclear. “It’s the eye of the tiger, it’s the thrill of the fight”. Etc etc.