The Whiter Shade of Pale decision

[John L]

This strikes me as an interesting legal precedent. It appears that Procol Harum's organist has been awarded co-composer royalties for "Whiter Shade of Pale" only on the basis of his organ solo in the song. Think of the implications that this could have for jazz.



Procol Harum organist wins court case By JENNIFER QUINN, Associated Press Writer
1 hour, 57 minutes ago



LONDON - A judge awarded a 40 percent share in the copyright of "A Whiter Shade of Pale," one of the most famous pop songs of all time, to a former organist for Procol Harum.

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Lead singer Gary Brooker and lyricist Keith Reid always claimed credit for the hit, which became part of the soundtrack for the hippy "summer of love" of 1967.

But in his ruling, the judge decided that organist Matthew Fisher was entitled to both credit and royalties.

"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," the written judgment said. "His contribution to the overall work was on any view substantial but not, in my judgment, as substantial as that of Mr. Brooker."

The judge said the song's organ solo "is a distinctive and significant contribution to the overall composition and quite obviously the product of skill and labor on the part of the person who created it."

The judge said Fisher, 60, was entitled to royalties from May 2005, when he began court proceedings.

"A Whiter Shade of Pale," famous for its cryptic lyrics — "We skipped the light fandango, turned cartwheels 'cross the floor" — topped the British charts for five weeks in 1967 and was a Top 5 hit in the U.S.

Rolling Stone magazine has ranked it 57th in a list of the 500 greatest songs of all time.

Brooker says he and Reid wrote the song before Fisher joined the band in March 1967. It was released in May.

Fisher, now a computer programmer living in south London, left the band in 1969. Brooker, 61, still tours with Procol Harum.

In a statement, Brooker and Reid said Fisher's court victory created a dangerous precedent because it meant any musician who had played on any recording in the past 40 years could claim joint authorship.

"It is effectively open season on the songwriter," they said. "It will mean that unless all musicians' parts are written for them, no publisher or songwriter will be able to risk making a recording for fear of a possible claim of songwriting credit."

They intend to file an appeal.

[Squaredancecalling Steve]

It does sound like they're opening a Pandora's Box here, doesn't it?

Now the musicians will get to split their nickel three ways.

[Sergio Zamora]

From the article I can't tell if the organist wrote or improvised the solo or if it was written out by the song writers.

[Mike Goodbar]

J.S. Bach should get a taste as well.

[hornplayer]

can a musician claim he or she "wrote" an improvised solo? That doesn't sound right!

[Monte Smith]

Originally Posted by Squaredancecalling Steve

It does sound like they're opening a Pandora's Box here, doesn't it?

I think it does. Because if you don't use the death penalty in a case like this, where the guilt is so manifest and the crime so heinous, and where the plaintiff and the defendents have all confessed to the horrifying misdeed...when exactly do you use the death penalty? Fucks the whole system up.

[Root Doctor]

Originally Posted by Monte Smith

I think it does. Because if you don't use the death penalty in a case like this, where the guilt is so manifest and the crime so heinous, and where the plaintiff and the defendents have all confessed to the horrifying misdeed...when exactly do you use the death penalty? Fucks the whole system up.

Beautifully said, Monte. Unfortunately, now I can't get that friggin' "Conquistador" crap out of my head.

[Chris D]

You did not conquer, only die.

[Brian Olewnick]

LONDON - Ginger Baker, one-time drummer for the rock band Cream, citing the ruling in the recent Procol Harum case, has sued for back royalties on many songs whose composition had been credited to Jack Bruce, Eric Clapton and Pete Brown.

"Extending the thought process in the original ruling", Baker was quoted as saying, "I figure that numerous songs where I chose not to solo were saved from potential ruination. As I view the matter, my inaction had as much to do with the eventual success of the song as the so-called composers and I should be compensated appropriately."

[Vince Kargatis]

har

[Frisco]

Don Preston needs to speak up next.
And if only Brian Jones were here......

[Pete C]

That decision is ridiculous.

[Uli]

Utterly ridiculous.

[Jimmy Cantiello]

Originally Posted by Vince Kargatis

har

.....de har har.

[jeff54]

I blew the whistle on some disco songs in the 80's.
Where's my lawyer?
Steve!!!!!!!!!!!!!!!!!!

[steve(thelil)]

Originally Posted by jeff54

I blew the whistle on some disco songs in the 80's.
Where's my lawyer?
Steve!!!!!!!!!!!!!!!!!!

LOLALOT.

Fantastic personal reference. Great evening. Great moment. (The phrase was shouted to me frantically from the stage by the great comedian Mark Weiner, whose head was at that moment upside down in order to be part of a puppet creation).

Speaking of which, jeff, I have to call you about our traditional "New Year's Eve or Close" evening.

I'll PM you now.

[Jazzooo]

Makes 90% sense to me. Without that arrangement, the song is one thing--with it, another. What exactly are we rewarding when musicians get royalties? I believe other arrangers have been financially acknowleded for having a big enough impact on the song. It doesn't happen too often, but it's not without precedent.

There is no chance in hell that the 'solo' was improvised. Any relationship between this and jazz recordings with improvised solos is specious imo. It is an integral part of the composition--you can't play the song without including it. Any fair minded songwriter would have acknowledged him decades ago (unless one of the writers found the Bach piece and suggested the keyboard player use it--that would be different).

What a bunch of grinches--you'd probably deny George Martin a share of royalties for Yesterday, Eleanor Rigby and Goodnight (had he ever been offered one).

[kenny weir]

Wouldn't the world be a better place without copyright? And patents.

[Sergio Zamora]

Originally Posted by Jazzooo

There is no chance in hell that the 'solo' was improvised. Any relationship between this and jazz recordings with improvised solos is specious imo. It is an integral part of the composition--you can't play the song without including it. Any fair minded songwriter would have acknowledged him decades ago (unless one of the writers found the Bach piece and suggested the keyboard player use it--that would be different).

That may be so, but once again I point out that the news report does not indicate one way or another whether the composer of that solo was the song writer or the performer. If the organist did write it or arranged it from very slim guidelines that's one thing. But if it was pretty much written out by the song writer and he just played it that's another.

[Gordon B]

It's amazing how people can develop strong opinions based on a sketchy AP report. I think the BBC article answers Sergio's questions.


http://news.bbc.co.uk/1/hi/entertainment/6196413.stm
He played organ on the 1967 hit and argued he wrote the distinctive organ melody....

The 60-year-old said he made chord changes to the original Brooker sequence and added to the work with a counterpoint to the song melody.

Mr Justice Blackburne, who studied both music and law at Cambridge - followed a transcribed music score during the several occasions the song was played in court.

I think I side with Doug, giving weight to the fact that Judge Blackburne was no musical dummy.

[VIBEr]

Originally Posted by Jazzooo

There is no chance in hell that the 'solo' was improvised. Any relationship between this and jazz recordings with improvised solos is specious imo. It is an integral part of the composition--you can't play the song without including it. Any fair minded songwriter would have acknowledged him decades ago (unless one of the writers found the Bach piece and suggested the keyboard player use it--that would be different).

I agree - there's no question when that song starts that it's "Whiter Shade" before either the melody or lyric comes in. Brooker and Reid would have been smarter to give Fisher a small piece of it long ago than have to give him 40% now (although I would imagine that unusually high percentage might be due to the royalties becoming effective in 2005).

I also think Ginger Baker has a point with "White Room" if it's true that he wrote the 5/4 intro that bears no resemblance to the rest of the song.

[Pete C]

Originally Posted by Gordon B

The 60-year-old said he made chord changes to the original Brooker sequence and added to the work with a counterpoint to the song melody.

I believe in the U.S. melody is the only copyrightable entity for pop songs, which is why jazz musicians have been writing new melodies over existing chord changes for years. My opinion in this case is based on that precedent. I don't think Fisher would have had the same outcome in the U.S. In this context My Sweet Lord was pretty blatant plagiarism.

[Pete C]

Originally Posted by Jazzooo

What exactly are we rewarding when musicians get royalties?

Aren't there two different kinds of royalties -- songwriter & performer?

[bostontricky]

Originally Posted by Root Doctor

Beautifully said, Monte. Unfortunately, now I can't get that friggin' "Conquistador" crap out of my head.

[Root Doctor]

Originally Posted by bostontricky

I wish!

Levon Helm is probably one guy who thinks this is a great decision.

[VIBEr]

Originally Posted by Pete C

Aren't there two different kinds of royalties -- songwriter & performer?

I suppose Jazzooo would know better than I would, but I think mechanicals and royalties are two different things, with mechanicals being performer residuals based on the original agreement (either union regulations or partnership agreement). I seem to recall that one of the reasons the Cars broke up was that the band demanded songwriter royalties on songs based on their position that the songs wouldn't have become hits without the band's input, and Ocasek left them to see what kind of hits they would have without him. But I acknowledge Pete's point that the U.S. outcome may have been different as a point of law.

If I'm understanding Jazzooo correctly, we're addressing the pure greed involved. Of course someone doesn't deserve songwriter royalties just for playing on something or just contributing a lick, but I think there are situations such as this where it just makes sense to give up a little instead of running the risk of losing a huge chunk in the long run. I can't even conceive of covering White Shade without incorporating the Fisher intro (which is a full eight bars long and repeats two more times in the song between verses). Even if it wasn't part of the song originally, my point would be that it became part of the song and he deserves at least something for it.

[Gentle Giant]

I've read Ian Hunter as saying that Mick Ralphs wrote the intro riff to All the Young Dudes, for which Bowie gets sole compositional credit. That riff is the whole song, man. I would think that he definitely deserves a slice of that pie.

I'll add that in the context in which Hunter made the statement, he was not advocating that Ralphs get credit, he was simply responding to a question.

Mike Love sued Brian Wilson a few years ago, arguing that he deserves credit on a host of songs. I believe Brian settled, but one example is Love claiming ownership of the "Good night, oh baby/Sleep tight, oh baby" tag at the end of Wouldn't It Be Nice, hardly an essential element of the song.

So I'm kind of split on this decision and think it should continue to be handled on a case by case basis. I also think it's imperative that the judge in such cases be musically trained.

[wesbound]

What about all the rap musicians who "sample" music from copyrighted songs?
Do they ever get sued?

[Pete C]

Originally Posted by wesbound

What about all the rap musicians who "sample" music from copyrighted songs?
Do they ever get sued?

http://en.wikipedia.org/wiki/Samplin...)#Legal_issues

[VIBEr]

Originally Posted by Gentle Giant

I've read Ian Hunter as saying that Mick Ralphs wrote the intro riff to All the Young Dudes, for which Bowie gets sole compositional credit.

...of which the key word is "riff." I don't think Fisher wrote a just a mere riff, so I couldn't support Robin Trower claiming to have written part of "Simple Sister" since that is a two-bar riff transposed several times and only appears once in the song in the intro. But I have to agree that this will open a Pandora's Box in terms of litigants attempting to claim their lick was in actuality part of the composition, although I don't feel that Fisher deserves to be penalized for that.

I suppose I tend to feel strongly about this because of my own experience on recording sessions where I was presented with a half-baked song and asked to "fix" it for free (not to imply that "Whiter Shade" was half-baked even in the demo stage). I never got ripped off, but I can understand how Fisher feels. Also, I don't see jazz musicians successfully suing for compositional credit just because they soloed on a jazz composer's tune (not that someone won't try). While I wouldn't recommend every band to do what the Doors did (equally splitting all compositional credit across the board), I do think a case can be made for a songwriter becoming cautious of expecting someone to be a partner when the money is bad and then expecting them to become an employee when the money becomes really good.