I have come to the view that Mr Fisher’s interest in the work should be reflected by according him a 40 percent share of the musical copyright. His contribution to the overall work was on any view substantial but not, in my judgment, as substantial as that of Mr Brooker.
[The song’s organ melody] is a distinctive and significant contribution to the overall composition and quite obviously the product of skill and labour on the part of the person who created it. – Mr Justice Blackburne, 20 December 2006
At first, the lawsuit concerning whether Procol Harum’s organist deserved songwriting credit (and the remuneration derived from it) for his memorable part on A Whiter Shade of Pale just seemed funny, an apocryphal anecdote about rock egos gone amuck. But now that the High Court in London has released its decision – part of which is cited above – it looks more like the first shot across the bow.
In the spring of 2006, Channel Four (one of the five main British terrestrial television channels) compiled a list of the 100 greatest ever number-one singles. A Whiter Shade of Pale was voted in at number 19. Gary Brooker, Procol Harum’s singer, co-songwriter and pianist, and Matthew Fisher, the organist, were duly filmed discussing the song and its success for the accompanying three-hour television program. Brooker and Fisher appeared easy in each other’s company. Brooker played bemused, while Fisher was the knowledgeable straight man explaining the literary allusions in Keith Reid’s eccentric lyrics that Brooker had apparently never bothered to think about in 40 years of singing the song. Brooker explained how he adapted the chord sequence from Air on the G String, itself an adaptation from Johann Sebastian Bach’s Orchestral Suite No 3 in D major, and how Reid used to send him sheets of his words without any further explanation. It was all very cosy and jolly. But when asked to what they attributed the song’s success, Fisher quickly fired back, “Because I played organ on it.” Brooker merely laughed; he had no inkling that he would soon be having a rather more charged version of the same debate in the High Court. (Full, illustrated transcript of the above show, recorded Friday 6 October 2000, and first aired on Yorkshire TV in January 2001, is here)
Fast-forward eight months and Gary Brooker is not such a happy man. Brooker will have to pay half a million pounds in legal costs for the privilege of having lost two-fifths of the copyright he used to share only with Reid, after Fisher successfully argued that his counterpoint organ melody deserved an ex post facto songwriting credit and a substantial payment of retrospective royalties. Though the court did reject Fisher’s claim for a million pounds’-worth of back royalties and a 50 percent share of the copyright, that’s probably small consolation. Brooker’s more likely expecting legal action from the ghost of JS Bach next.
Brooker has gone on record as saying that the ruling marks a black day for the songwriter. He is worried that anyone who plays on a record may now be in position to seek co-authorship credit and the financial benefit that goes with it. If he’s right, the ruling could make musicians wary of whom they employ to play on their records. We could end up with a lot more Paul McCartney, Phil Collins, Elliott Smith, or Dave Grohl types, musicians capable of playing all the instruments on their albums themselves.
While some may be tempted to dismiss Brooker’s jeremiad as sour grapes
and believe the judge righted a terrible wrong after Brooker had been
allowed to deny Fisher his due for too long, sane and disinterested heads
among the songwriting classes are as worried as Brooker. To them, the ruling
derives from a confusion between song and arrangement, and the intellectual
property rights associated with each.
The case appears to be this. Brooker, having written songs (in partnership with Reid) – and, crucially, having assigned their copyright to publisher Essex Music Ltd on March 7, 1967 – set about forming a band to play them. Influenced by Bob Dylan, he wanted this band to include a Hammond organ player. He advertised; Fisher applied. He was in. To recap: by the time Fisher joined Procol Harum, Gary Brooker and Keith Reid had already written and registered A Whiter Shade of Pale. The song existed in copyright before the band cut their record, indeed before Fisher ever heard the song.
As the band rehearsed the song, it was decided that the organ parts should be formalized, so Fisher was charged with composing the introduction melody and the solo. Now, no one doubts that Fisher’s contribution is a major part of the record’s appeal. Not even Brooker. The issue is that the song as copyrighted and the song as released are not quite the same. To harmonically accommodate Fisher’s melody, Brooker consented to alter the bass notes in the eighth bar. So the record that came out varies slightly from the copyrighted material.
In popular music, it is frequently the case that a hired musician or band member will play material (a melody, a solo, a rhythm – potentially any element of the arrangement) not written by the song’s author. But copyright has always protected the essence of the song, not the arrangement. The issue of the slight harmonic change seems to me a red herring; any jazz musician may extensively re-harmonize any song they get their hands on without, in so doing, creating an original composition. But perhaps because the first release of the song is not quite the same as the song as copyrighted – and because it features one of the original copyright holders as singer and pianist – Mr Justice Blackburne has inferred that the recorded performance is the song as it should be. As such, he has taken the differences between the two – Fisher’s contribution – and awarded Fisher a forty per cent share of copyright.
The fear is that, in enshrining in English law Fisher’s belief that playing an instrumental part on a recording of a song – however skilfully and imaginatively – is the same as co-authoring the song itself, Mr Justice Blackburne has set a precedent that, taken further, could see any musician claim a co-writing credit on any song on which they may have played, however small and incidental their part. If the organ lines on A Whiter Shade of Pale garners 40 percent of the song, how much is Herbie Flowers’s bass playing on Walk on the Wild Side worth? And will Guigsy take Noel Gallagher to court to claim a couple of points of the publishing and establish his place in the pantheon of rock'n'roll songwriters based on his valiant root-noting on Oasis’s early records? According to Mr Justice Blackburne, songwriting never ends; it’s a continuing process and any element added to a song during recording can be worth a songwriting credit. Taken to the point of absurdity, this suggests we should consider extending musicians playing on subsequent cover versions possible songwriting credits.
This is just the latest in a series of developments undermining the
importance of the songwriter to music. If it isn’t the
‘music-should-be-free’ brigade Limewireing their way to record collections
the size of Peter Buck’s without paying the songwriters whose work they
enjoy so much as a dime, it's English High Court judges declaring that
coming into the studio during recording and laying down a tinkly-tinkle here
and fiddly-iddly there is the same as songwriting. Consequently, a hideously
unwelcome precedent is set that will surely be exploited by less deserving
and talented musicians than Matthew Fisher unless sanity is restored. The
mind boggles, the skin crawls and the little man who lives in my head is
hitting his own head, hard and repeatedly, against the inside of my skull.
Brooker is appealing Mr Justice Blackburne’s decision, and I pray to God his appeal is successful.
This article appears online at the excellent Popmatters website:
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More about the AWSoP lawsuit