The suit against publisher EMI Music alleges breach of the 1961 standard songwriter royalty contract the late pianist, bandleader and composer signed with Mills Music, predecessor of EMI, which is now part of global Sony/ATV Music Publishing. The contract calls for an even split of net revenue.
In the lawsuit, Paul Ellington says EMI should stop deducting 50 per cent commissions to foreign subpublishers that its parent company now owns before splitting the rest with Ellington's heirs.
His attorney, Richard Scarola, told the Court of Appeals that the publishing giant passively collects royalties in Nashville, Tennessee. He called its description of its foreign subpublishers "a fiction," saying that EMI China, for example, exists only as a piece of paper.
"As the world has changed the interests of EMI today are exactly the opposite of the artist," Scarola said. Ellington and Mills had a common interest in spending what was needed to get his music published abroad, sometimes as little as 15 or 25 per cent paid to foreign subpublishers instead of half, then sharing what was left, he said.
A judge dismissed the suit last year, concluding the company could pay foreign affiliates acquired after the contract was signed. A midlevel court agreed.
"The contract is clear. It's a net receipts agreement," attorney Donald Zakarin argued Thursday for EMI.
He said the foreign subpublishers are "sister companies" that are not owned by EMI Mills but instead are under common ownership by the group. He questioned why it should now have to distribute in foreign markets for free.
The seven judges, who closely questioned both lawyers, are expected to rule next month.
Ellington wrote "Don't Get Around Much Anymore," ''It Don't Mean a Thing (If It Ain't Got That Swing)" and other big band hits.
After the hearing, Scarola said "a substantial portion" of Ellington's catalogue is involved and "hundreds of thousands of dollars" are at stake in this case. It potentially could involve millions of dollars on behalf of many artists from the same period if it's allowed to proceed and others join the lawsuit, he said.
Zakarin said it's hard to tell how much money is at stake. Other claims have come up occasionally but have been beaten on the merits in court, he said.