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Survivor Members Sue Sony

Scott Gries, Getty Images

In 2012, the members of Toto filed a lawsuit against Sony Music alleging unpaid digital royalties, and now they’ve got company: Survivor co-founders Frankie Sullivan and Jim Peterik are also taking the label conglomerate to court.

The Hollywood Reporter covered the recently filed brief, which accuses Sony of misrepresenting the nature of digital music sales in order to underpay the band. According to Sullivan and Peterik, Survivor’s contract mandates an even 50/50 split between the group and the label for any licensed masters, and they’re arguing that digital royalties should fall under that category. Additionally, the suit accuses Sony of failing to pay out the band’s share of legal settlements between the industry and filesharing services like Napster, Grokster and Kazaa.

While the difference between a “license” and a “sale” might seem unimportant to most consumers, it’s been a hotly debated issue for years. Digital files are generally treated as licenses rather than sales, meaning that when a person dies, his or her license expires — in other words, you can’t legally will your DRM-encrypted MP3s, ebooks or digital films to your loved ones. From Survivor’s point of view, Sony’s trying to have it both ways: Their music is licensed to the consumer, but treated as a sale when it comes to paying the artist, which means a much lower royalty rate.

Current recording contracts spell out all this legal mumbo jumbo, but for legacy artists like Survivor (and Sister Sledge, who filed a similar lawsuit in 2012, following an almost identical claim by Eminem in 2010), things aren’t so clearly defined. Given that the acts in question tend to derive a substantial portion of their income from catalog sales, it’s a major issue, and one that the labels will likely be forced to contend with on a regular basis — especially as digital streams, which are obvious licenses, continue to eat into physical and digital sales.

Perhaps the most interesting component of Survivor’s case is Sullivan and Peterik’s allegation that Sony responded to their complaint by threatening to use their “nuclear option” — “removal of the Survivor Masters from the songs licensed to iTunes for download by consumers, thereby wiping out that revenue stream altogether.” But in trying to get rough with the band, the suit argues that the label has essentially admitted Survivor’s right. “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,” reads one portion of the claim. “If it was a sale, Sony would have no right to demand return of the songs.”

Peterik and Sullivan founded Survivor in 1978, following Peterik’s stint with the Ides of March (which produced their 1970 hit single ‘Vehicle‘) and brief emergence as a solo artist. Although Peterik left the band in 1996, he’s responsible for co-writing the majority of Survivor’s best-known songs with Sullivan, including ‘Eye of the Tiger,’ ‘The Search Is Over’ and ‘High on You.’ Sullivan continues to front the group, which currently tours with a lineup that includes singers Dave Bickler and Jimi Jamison.

When reached for comment by Ultimate Classic Rock, Peterik declined to add to or contest anything from the Hollywood Reporter’s story, only urging us to “Rock on!” — sentiments we can all get behind no matter how this case shakes out. Given that Sony has tried to have Toto’s lawsuit dismissed, we can probably expect a long battle here, but the Survivor legal team knows what it’s doing; after all, this is the band that took Newt Gingrich to court.

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