The sun is shining. The sky is blue. The air is nippy. That does not actually mean the air is biting me, but that the temperature outside is nippy. That does not actually mean that the temperature is biting me either, but I am shortly going to walk the garden and avoid the weather's metaphorical teeth.
Two hours of my beginning morning were spent on a letter to PC at BMG, my former music publisher. This is in respect of ongoing progress in the audit that DGM conducted of BMG over four months ago. That does not actually mean that the ongoing progress in the audit is progressing, but that it is ongoing. Seemingly forever.
This is the text of the letter
Further to our telephone conversation, this is to confirm that I will come to visit you at DGM on Tuesday 10th December at 10am. to discuss the issues below. See you then, J.
Monday 9th. December, 2002.
Firstly, David Singleton has asked me to not visit the DGM HQ office on Tuesday when J is visiting our exceptionally modest facility. Our office has, however, the advantage of being adjacent to, and within the same building as, the village butcher. I hope J is not a vegetarian.
Secondly, and with regret, while reflecting this weekend upon our audit of BMG over the past four months and rising, and how this might be settled, I came to realise that you do not yourself have the authority to settle this matter. Your authority extends as far as giving safe advances against safe income.
Our detailed audit information, and David Singleton's detailed commentary on BMG's responses, indicates incompetence by BMG over the past (at least) six years. I suggest that incompetence over that time period is better described as negligence and, where it is accompanied by your own reservations regarding collections in the US, may well be culpable negligence.
Simply put, this is not a matter than can now be settled merely by giving me a safe advance on safe income.
Thirdly, I accept that you have acknowledged shortcomings in BMG collections, for which you formally apologised when we met in your offices on Tuesday 22nd. October. I also accept that you are proceding in what you believe to be a reasonable fashion.
However, I do not believe that the penny has quite dropped. The extent of the failure by BMG is remarkable, and ongoing, and I have no confidence that you will be able to correct your situation within (at least) the short term. In any case, the structural failure is not properly yours to correct.
When we met, I presented a global settlement position. You rejected our figures as wildly mistaken. All subsequent commentary has suggested that our numbers are, ball-park, more accurate than yours.
Brief History Of The BMG Acquisition
Of The EG King Crimson Publishing Catalogue The sale of my copyrights, mainly in respect of King Crimson records and publishing, by EG to Virgin & BMG in 1991, was the basis of a dispute ongoing between April 1991 and September 1997. This was the subject of a High Court writ with an eventual out-of-court settlement which acknowledged my copyright ownership and improved the royalty payment (although in the 5 years since the settlement was completed BMG has not implemented the royalty increase).
BMG undertook due diligence (a copy of which I possess and brought to our meeting on October 22nd.). Two of the items raised in respect of the transfer of copyrights by the artists to EG were consideration and undue influence.
The first question was: is royalty payment in itself sufficient consideration for a bona fide transfer of copyright ownership? The answer was, and is, clearly no.
The second question was: were the artists subject to undue influence, in that the management giving the advice to the artists tranfering the copyrights, were themselves the beneficiaries of the transfers? The answer was, and is, clearly yes.
Peter Sinfield recalls that, when asked to assign his copyright interests to EG, Peter asked Mr. Adler: "What happens if you sell the copyrights?" Mr. Adler replied: "You'll get your share". When the copyrights were sold, Mr. Alder "did not recall" this undertaking.
I was myself given deliberately inaccurate and misleading (the word is actually "dishonest") information by Mr. Adler on February 22nd. 1976 when I was asked to make assignments in EG's favour.
BMG and yourself were aware of the euphemistically termed "grey areas" in 1991 and, you may recall, withdrew £50,000 from the EG sale as a penalty. So, we are both aware that the acquisition of my/KC copyrights at the time was tainted.
Today, with wider discussion and information made available from the period, with issues of transparency and swift accounting (such as were mentioned on the front cover of Music Week for November 30th. 2002 in respect of your sister company BMG Records) widely debated, we are surely in no doubt that the BMG acquisition was a stinker. The legal position was settled as of September 1997, but the acquisition was morally flawed.
You are a decent man, and I don't believe you will put energy into defending the ethical propriety of the BMG acquisition - an artist was screwed by the management he trusted and, in your heart, you know it.
The original publishing relationship between the members of King Crimson and EG was formalized in the Willowfay Agreement of February 1970, which set out the understanding of the preceding year of King Crimson's rapid success.
The Willowfay Agreement defined a 70-30 split between artists and EG in terms of income, and gave EG the right to buy a 30% share of the copyrights at the end of a 5-year sub-publishing licence (to David Platz).
(I re-discovered this document in January 1997, the same week that I received the out-of-court settlement document in respect of my action against EG, Virgin Records & BMG).
At the end of the 5-year sub-license to David Platz (late 1974 - early 1975) Mr. Adler of EG approached David Platz for an advance on publishing royalties. David Platz agreed, on the proviso that the artists received their share of the advance. This was not well-received, nor acceptable, to Mr. Adler. The quote attributed to Mr. Adler (from an EG employee) in response was: "No-one tells us what to do!"
Accordingly, Mr. Adler moved the sub-publishing to a publisher prepared to pay EG an advance directly, without the artists being involved. Mr. Adler then used these advances partly to use as loans to some of the artists, on which they paid interest to EG. Good wheeze, or what?
To move the sub-publishing, EG had to show good copyright assignments. This was the basis of "influencing" the artists to sign over their copyrights to EG so that EG "could collect the royalties" and "protect the copyrights".
In 1991 I had been outside the music industry for 6 years, suddenly without management and my business affairs in a mess, at a time of recession. My position was then a very weak position and the out-of-court settlement was the most that I could achieve at that time. Today, I would not accept the terms that I accepted then.
Brief History Of BMG As RF's Publisher
BMG has collected some of my royalties, but not much in America (my main territory). Of the royalties you have collected, you have paid the wrong amount on the wrong contract.
The Way Forward When David Singleton & I met with you on October 22nd. it was in the spirit of goodwill, seeking to find an honourable global resolution of our problems - jointly acknowledged - and discuss the possibility for our future dealings. This involves three areas: new & future writing, e.g. the new KC album; the post-1991 catalogue; the 1969-84 EG/KC acquired catalogue.
At that meeting, you expressed little interest in new & future writing. Your core interest appeared to be: iii) the 1969-84 EG/KC acquired catalogue.
The more our dealings with BMG, the less confidence I have that BMG UK can undertake to accurately collect in the US. You are well aware of the problems, because you have been frank with us in respect of them.
One example: direct licensing to the record company rather than going through Harry Fox Agency. J tells us this is not possible. We respond to J: Opium Arts issues licenses direct to Virgin in respect of David Sylvian because dealing with HFA was so problematic (as we all agree).
A second example: Jay's letter of 15th. November 1996 to Richard Chadwick (then managing myself and KC) I which Jay writes: "I have queried all Robert Fripp/King Crimson albums with our American office". And yet in December 2002 this remains an outstanding issue.
We have taken advice on legal action directly against BMG US. We are advised that my contract is with BMG UK and this procludes direct action against BMG US. The US sub-publisher is, we are informed, your responsibility and not ours.
It is very clear to me that the likelihood of you being able, from the UK, to structurally reform your collection basis in the US, is remote. So, regrettably, your US office is not my concern. It is yours and I hold you liable.
Given your lack of expressed interest in my future catalogue, it is off the table. So, the new KC publishing will be placed elsewhere.
The license period of the post -1991 publishing, currently subject to our audit, will be removed from you as soon as feasible.
I am considering action to remove the 1969-84 catalogue from BMG. BMG are demonstrably unfit to manage it.
I hold no personal animosity towards yourself, nor towards J. I believe that you are both acting in what you genuinely consider to be an ameliorating and reasonable fashion. You are not the "Good Guys That You Can Trust" of the Mr. Adler model. But this not enough, nor much use in finding a swift and satisfactory settlement.
There are structural problems of a very deep order within the BMG companies. BMG is well-known among artists as having an artist-unfriendly business culture. Perhaps this is a reason for the recent BMG Records initiative featured on the Music Week cover?
And, fundamentally, yours is not the level of authority to settle our concerns. The level of settlement is beyond your remit.
It seems to me that the global settlement - Plan A - I suggested on October 22nd. remains fair to all parties. This is clearly also more than you feel able to meet. I do not believe you will ever have the "information" you seem to need to agree to this.
This leaves me with Plan B.
I have told David Singleton that I shall make a decision, on or before December 20th., to move this forward. I would rather Plan A but, as an older and more experienced player than the one you met in 1991, I will be moving forward.
Back to Monday with Christmas shopping continued, and two new shops in town patronized. Just in: from an e-mail from a business wizard pal from the East Coast.
Thank you for sharing the latest lack of developments with me. Incompetence can be a purposeful act.
There is a program on National Public Radio this evening (I believe it is a short segment on the business of music - How Royalties Really Work) and the announcer this morning was comparing the music industry to the sport of boxing of some years ago. The boxers wind up bruised, battered and broken with no money to show for it. You may be able to tap into the program contents via www.npr.org.
Too true, say I.
Also this afternoon: a call to Eno's office confirming my session with the Captain this Friday 13th. December. Spooky!