Tuesday, December 26, 2006

Deaf Justice: A Whiter Shade of Pale

Imagine this: Ringo shows up in court one day clutching a copy of, let's say, "Come Together", spins the disk for the judge, and claims songwriting credit based on his artistic contribution to the recording. Next day, Roger Daltry marches in, spins "Baba O'Reilly", and marches out with megabucks as co-author with Pete Townsend. Robert Fripp hears the good news, heads for the halls of justice, and goes, "Hey judge, you're not going to believe this, but I never got songwriting credit for "In the Court of the Crimson King"! Not over by a long shot: here comes John Paul Jones, who (I assume) played the organ part on Led Zeppelin's "Kashmir", demanding that his already fat wallet be thickened a little with songwriting credit for his artistic contribution. (Note: John Bonham, Led Zep's drummer, did receive songwriting credit on this one.) And this is just the beginning. Wait until they hear about this in the other arts. Dancers, actors, orchestral musicians, lighting and set designers, maybe even museum curators, are going to see the light and head right for the local courthouse to get a piece of the creative credit action for all the works to which they made an artistic contribution. (Well, they did, didn't they? If you have ever seen a good and bad production of the same play you know darn well that your concept of the play is totally dependent on the performers and directors who bring it off. It's not just a different nuance, it's night and day: a work that works and has great artistic merit vs. one that doesn't, and doesn't.)

So you think this dystopic vision of endless nasty wrangling about authorship is just fantasy? Think again. Justice Sir William Anthony Blackburne has just made it a distinct possibility with his ruling that Matthew Fisher, who developed the organ part on the Procol Harum hit "A Whiter Shade of Pale", should receive royalties as co-author of the song.
In his decision he also pegged Fisher's contribution at 40% of royalties, and said the royalties are due from the date the suit was filed in 2005.

Blackburne's ruling is a complete farce, wrong on all three counts. First, Fisher is not an author of the song, which was written by Gary Brooker (music) and Keith Reid (lyrics). He is a contributor to the recording; and so is every other musician, engineer, and other personnel who made artistically significant decisions in bringing the song to life. Generally the terms under which someone works on a recording are established by a prior contract. Some groups, like the Doors, got around the difficulty by giving songwriting credit to the entire band, a practice which somewhat justifies Ted Gracyk's view (see Rhythm and Noise: An Aesthetics of Rock) that the recording just is the artistic product in rock. I think that oversimplifies things, though I can't go into the arguments against it here. In my view, there is a difference between writing a rock song and realizing it in the studio. There's a hierarchy of aesthetic products. Contribution to the recording doesn't affect authorhship of the song one bit. A song can be written in the back of a van. Many of them were. I wrote one while driving to Washington D.C. for a protest march, lyrics, melody and chord structure. Several other people contributed to my recording of "Victory Is Certain (Standing Up to Apartheid)"; I doubt they'll come and try to grab songwriting credit for it, though if they did, considering my profits, I think I'd owe them all of about a nickel each.

Second, where on earth did the judge get the idea that one instrumental part constitutes 40% of the total creative input into the song?? On that logic, the full artistic credits should amount to about 300%. The drum track, for example, is about equally as critical as the organ to the total artistic result. (I suppose it's too much to expect Sir Blackburne to recognize the critical role of percussion in a rock song. It's too much to ask most rock fans.) The lead vocals are even more critical. That's already 120%, and we still need to add something for creating the melody, the lyrics, and what I assume is some contribution from Robin Trower's sinewy guitar lines. Altogether, AWSOP has the creative energy of at least two or three songs. I knew this song was good, but damn! This is why there is such a thing as "legal reasoning", i.e., reasoning which differs from that of any normal human being.

Third, as far as I know, copyright begins at the time a creative work is completed. If he should have received songwriting credit, he should be due royalties from Day One; makes no difference at all when he filed the claim. Dating his royalty rights from the day of the claim flies in the face of international copyright law. For this ridiculous decision I suggest we send the Hon. Sir Blackburne back to law school... and, since it is rumored that he has enough musical training to know a sharp from a flat, but he obviously can't tell an organist from a composer, music school too.

Well, sorry about that, Johann, some organists are indeed compoers... Speaking of which, let's just straighten out a couple of bits of trivia. It has often been claimed - including in a NY Times report on Fisher's suit - that Fisher got the organ part from listening to Bach's "Air on the G String". It is reported elsewhere that it is actually from a movement called "Sleepers Awake" from Bach's Suite #3. The Wikipedia entry for AWSOP says it is inspired by both. Hello, the Suite #3 movement is Bach's famous Air; it was adapted by the violinist August Wilhelmj for performance by solo violin (playing on the G string alone) and keyboard, and given the name "Celebrated Air on the G String". As someone correctly commented on the Songfacts page for this song, the keyboard part in "A Whiter Shade of Pale" was not copied from this or any other Bach piece. Like the bit of Bachiana that George Martin contributes on harpsichord in the Beatles' recording of "In My Life", it is just an impression of the Baroque style.

Second, the song as a whole does bear some resemblance, at points, to Percy Sledge's recording of "When a Man Loves a Woman", as is pointed out on Songfacts and by blogger FireEscape, who cites RIck Wakeman as a source for the comparison. Well, yes, but... this is not exactly like "My Sweet Lord" and "He's So Fine", where the similarity is obvious, continuous and follows unusual tonal changes that cannot be a coincidence. Both AWSoP and WaMLaW are based on a very standard progression, and the instrumentation is different, so any direct plagiarism would have to be located in the vocal lines. But there is at most an overlap between the title phrase of the Sledge song (which he did not write) and some parts of the vocal line in AWSoP. The similarity is interesting, but no more so than that between many other popular songs. (Nota bene: I was just listening to a recently acquired CD of one of my favorite albums from the 1970's, 10cc's The Original Soundtrack. The closer on the original album is a song called "The Film of My Love" - a sexual double entendre, like many of 10cc's lyrics. It always sounded familiar, but I couldn't place it. Well... I still love 10cc, but this song is basically a direct hit on Jacques Brel's "Sons Of...", which was recorded by Judy Collins among others. There is plenty of "borrowing" in rock, and some of it is outright plagiarism. I don't think AWSoP falls into this category.)

What this mess shows is that even a judge with some musical training is not necessarily capable of rendering a meaningful verdict on a question that involves philosophical questions in aesthetics. He hears the recording, decides the organ part is artistically significant, and bingo, out pops a ruling that revises the entire history of popular recording and possibly a lot more as well. Look, yerHonor, for every recording on which the contributions of the various musicians and other personnel are more than canned background to the creative work of some major artist, some royalties should really go to all the people involved, unless they agreed to a lump sum payment, in which case a contract's a contract. And generally the members of a band should not sign such contracts. In most cases, I think this is what happens. Fisher should have received quite a lot of dough from sales of the Procol Harum recording of "A Whiter Shade of Pale": it was one of the mot popular singles ever, and though it was not included on the original British version of their first album (for reasons known only to the God of Dubious Marketing Decisions, the guy who managed to excise "Paperback Writer", "Day Tripper" and "We Can Work it Out" from the Beatles' British album releases) it was included on a later U.S. release and on several Greatest Hits albums. [Note: It was standard practice in the UK in the 1960's not to include songs released as singles on the next album release, and very rarely did they release a single from an album that had already been released. This is why so many of the best and most popular songs by The Beatles, The Rolling Stones, etc. never made it onto albums until either a "greatest hits" release or some collection like Flowers or Hey Jude. U.S. labels adopted a different practice and usually made the singles the selling point, if not the title track, of the album.
(Jan.5 2010, 12:57 a.m.)] If not, then what is owed to Fisher is something - a lot less than 40% if ordinary mathematics still holds in British courts - for his contribution to the recording. And yes, this might cause a certain amount of mayhem if it were applied to every recording ever made, but I have a feeling it is already the case. What Fisher really wants is a piece of the royalties from Annie Lennox's recording or AWSOP, and Sarah Brightman's performance, and Joe Cocker's, and... And that's just ridiculous, because you can record the song with no organ part at all, no riffing on Bach, not one note of Fisher's organ line, in fact you can record it with an orchestra of kazoos or a jug band or a Balinese gamelan, and it would still be "A Whiter Shade of Pale".

Well, gotta go. But I hear Al Kooper just filed as co-author of Bob Dylan's "Ballad of a Thin Man". And something is happening here, but you don't know what it is, do you, Sir Blackburne?


The Opinionated Bastard said...

Robin Trower was not a member of Procol Harum at the time of "A Whiter Shade Of Pale"'s writing or recording.

Details are important when dissecting the "hows and whys" of a court's ruling, and though I am not writing this comment in order to disagree with your sentiments, I suggest a more critical look with deeper attention to detail before slashing and burning, crying out like Moby Grape with "Murder in My Heart, For The Judge." ;-)

The complete written decision can be found on my blog by going here (cut and paste into your fave browser):


As well as a detailed look at the various forms of the album that was released in the wake of "A Whiter Shade Of Pale"'s success on both shores of opposite sides of the Atlantic.


(and though the cloud crapped desperately, they could not see the joke!)

H.A. Monk said...

Thanks for the info on the guitarist; I did do some research but could not find anything definitive about this. The point I was making, however, was only that some percentage of the creative effort accrues to the guitarist as well, whoever it was.

Details, I agree, are important, but the way the big picture is constructed is more important. Thanks to you, I have now read Blackburne's decision, detail by painful detail, and it appears to me every bit as flawed as it did before; even more so, in light of the fact, which I did not know before, that Brooker had created a stylistically similar keyboard introduction before Fisher ever heard the song, and that several people testified that the final product was recognizable as Brooker's composition even after Fisher changed a few notes.

Blackburne's effort to distinguish an artistic product inbetween the "Song" and the recording, which is yet not a mere arrangement of the song but a fourth kind of thing, is extremely strained, and seems designed solely to find something to which Fisher might have a legitimate claim to. The concept of a rock song as a "recorded performance" is not new; Stephen Davies uses it in his book *Musical Works and Performances*, and it is criticized in a recent article in the Journal of Aesthetics and Art Criticism. (What is recorded, and especially what is released, is usually far from what we would normally call a "performance" of the piece.) But it is extremely doubtful that this is something which endows people with tangible rights to royalties.

But even granting that such a product exists, it seems very unlikely that Fisher is the proprietor of any such product. The entire argument for his side seems to turn on his having changed a few notes in an idea that Brooker had already substantially set down. Give me a break (pun intended; parrots love puns). There is a big difference between being a decent person who says, "Hey Matthew, great job on the organ part, you really improved the overall effect of the piece", and "Hey dude, you just created 2/5 of a new aesthetic product which is embodied in this recording but is neither the recording itself nor the song it is based on, rather a third, more evanescent sort of thing".

On the other hand, the judge is totally wrong in saying that the entire argument for the defense (set out in paragraphs 48-49 of the decision) turns on the existence of the demo. Nothing whatsoever turns on that, unless it is the sole evidence that Brooker acutally composed the song when he says he did. And this is clearly not the case: no one doubts that he wrote the song before he met Fisher, and the demo does not even exist anymore, so it is no evidence at all. The argument for the defense has to turn on the fact that the song was written then, not on the demo. So there is no "element of fortuitousness", as Blackburne writes. Brooker wrote the bloody song, assigned the copyright, and obtained a recording contract. The idea that someone can now come along and claim copyright in some slightly reworked recorded performance of the song is just insane. Like I said, everyone who contributed to the end product should get royalties from sales of the recording, unless they signed them away. But people should not pretend to be composers of intermediate musical products that have to be teased out of extremely detailed legal discussions.

What I said about the drum part is borne out by the idiotic dismissal of it in the decision (I think he uses the word "langurous"). The drumming is highly original and one of the reasons this song is counted as one of the founding moments of progressive rock. To pretend that you can deal with Fisher's claim and not bring in claims by every other contributor to the recording flies in the face of reason.

Ditto every other instance of this kind of situation, examples of which are endless. Does Al Kooper get 40% credit for the "Work" known as "Ballad of a Thin Man"? Some of the language in Blackburne's decision even encourages this idea, as he seems to feel comfortable dismissing everything that Brooker's attorney claims as generally accepted practice in the music industry. (I am no defender of the industry, as readers of my blog know; but the point here is just that if there are standard practices it is fair to attribute consent to those practices to anyone who participates in the industry and does not explicitly dissent from them.) This includes the fact that Fisher signed on to make the recording when rights to the "Song" had already been assigned and rights to reproduce the recording had already been reserved. This matters not to Judge Blackburne; let's invent new rights that no one ever discussed and assign them to Fisher ex post facto. (Not enough Latin in this decision, that's the problem!) I'm telling you, if this is loony thing is upheld, rock stars from your childhood are going to come streaming out of the woodwork. Organists in particular will be bouncing around Washington jockeying for court time: the guys who played on "Kind of a Drag", "One", "Crystal Blue Persuasion"... Hey, I'm getting to like this idea, maybe they'll start playing this stuff on the radio again, instead of Hotel California! I take it all back, I'm with SpongeBob, this could be the best day ever!!

Anonymous said...

I couldn't agree with you more. Justice Blackburne's decision is a farce! It seems that you might have misunderstood the 40% though -Fisher would get 40% of the 50% (the music) of the song. So, he would receive 20% of the entire song. Brooker 30% and Keith Reid 50%. Bill Eiden was hired as a session drummer for the song and Ray Royer was on guitar. When the song became a hit, Brooker then went back and grabbed his old mates from the Paramounts, B.J. Wilson on drums and Robbie Trower to be part of Procol Harum. Thanks for the article - you should keep improving it and send it to Mr. Brooker so his lawyers (hopefully new ones) can read it. His lawyers bothched the case. Best wishes, Satch Dobrey

The Opinionated Bastard said...

Thank you all for adding vital perspective on an already difficult subject that may have reverberations (we musicians love puns) throughout the music industry for years and years to come.

In fact, it may change, on the face and further, the industry and it's chemistry for the worse, which, in this contributor's opinion, is potentially the straw that will break ... well..you know.

I'm a songwriter of some 36 years, played professionally from the late 80s until 2000 (when my singer divorced me) and have a fairly realistic view of the politics that reside within any musical endeavour .. business, recording and touring.

I can tell you that business and politics are the biggest downer of all, unbeliveably ugly and monstrous, and the wasteland that has been laid in the path of those who are going to take from the talented and naive (business-wise)
is filled with blood money.

I, in no way, suggest that Mr. Fisher, one of the greatest organists in all of British Rock, is doing such a thing, and he probably believes in his mind that he contributed to the writing of AWSOP.

I'm afraid, however, that Mr. Fisher also believes his own press and has been convinced (possibly by some of those "blood suckers" aka 'solicitors/attorneys or lawyers') that he is owed something for his contribution, however remote said contribution may have been from the actual writing of "The Work" or "The Song."

A travesty clothed behind the wigs & robes of injustice in the UK Courts. Am I the only one who thinks Blackburne may be enamoured of his own press and musical studies, and wants a piece of the Pale for himself?

Anonymous said...

The reason why the royalties only accrued from date of filing claim lies in the absurd delay in asserting his rights; he acquised in payments being made for an extremely long time before stating his claim.
In equity this is the doctrine of laches, and he is extremely lucky to get any relief. The defendants in these cases are prejudiced in preparing defences against "ambush" claims.

Alexander Frese said...

I find many hints about ever the same Bach works being the inspiration for that tune. Just today I came across BWV 709. This is � in my ears � really really much closer than that Air on a G String (BWV 1068) or BWV 140 that are both mentioned on wikipedia. Stunning that I cannot find any other comments on the web telling so.