A Darker Shade of Bunk

[22 January 2007]

A recent ruling regarding the royalty rights to Procol Harum's 1967 classic "A Whiter Shade of Pale" could have severe implications for all UK songwriters.

By Ross Palmer

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, December 20, 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.

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 J.S. 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 skillfully 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, its 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.

Gary Brooker & Friends - A Whiter Shade of Pale [Live]
 
Bookmark and Share

Comments

“... 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.”

You make a good point with the above quote. But while the above scenario would be a disaster, I don’t think it applies to “A Whiter Shade of Pale.”  Fisher’s keyboard part (which is repeated in the solo) is the main hook to the song —and perhaps the defining characteristic of the record. It comes up twice, and without it, I don’t think the song would have been a hit (or as big a hit). 

Precedents have been set for this, albiet without court interference. When keyboardist Paul Griffin developed the main synth hook on Steely Dan’s “The Fez,” composers Walter Becker and Donald Fagen gave him a co-credit (the only time someone else shared composing credit on a Dan record). And that hook isn’t anywhere near as defining as Fisher’s.

I don’t think adding bass line, a drumbeat, or even a guitar solo is the same is composing the main thematic hook to a record.  And I always thought Bill Wyman should have hauled Jagger and Richards into court for not being credited as having written the main riff to “Jumping Jack Flash.”

Comment by Tony Sclafani — January 22, 2007 @ 9:04 am

This is truly a fine line to tread. In this particular case, it’s surprising to me that this lawsuit and ruling took place close to 40 years after the fact. This should mean that Fisher was at one time satisfied with his payments and (here, lack of) credits associated with the song, and only thought about the amount that he “could get” after the song was voted into a list.

Comment by Justin de la Cruz — January 22, 2007 @ 11:39 pm

I’d agree that Fisher’s motivation is questionable. He’s mentioned something about securing his place in the history of rock ‘n’ roll, but forty years after the fact seems a strange time to try to set the record straight. Makes one suspicous.
I think the distinction between ‘song’ and ‘record’ is key in this case. The point was that Matthew Fisher added an element to an arrangement of a song whose copyright was already held by Essex Music by the time he joined the band. The song can be played without the organ part and it remains ‘A whiter shade of pale’.
The essence of the song - that which copyright, until this ruling, covered - resides in the words and the tune. Which were, as I say, complete and registered with Essex Music before Fisher joined the band.
As for the matter of the hook, it’s equally arguable that Brooker’s refrain of ‘And so it was…’ is the hook; the term is, I think, a bit too subjective to be very useful in a legal context.

Comment by rj palmer — January 23, 2007 @ 1:59 am

Matthew Fisher’s solo isn’t a hook; it’s a melody,  one of the two main melodies of “A Whiter Shade of Pale” (AWSoP), and some would say its Primary, most recognizable melody.  If there were ever any question of its being composition rather than arrangement, the passage of time has settled that,  based on all the critical attention and acclaim for that part of the song, its inclusion in so many cover versions,(criterion as per “Music Law” by Richard Stim,  2003), and its stand-alone use in representing the whole song (on ringtones), or the song plus the entire Summer of Love (fadeout at the close of the 60s oriented episode of “Third Rock from the Sun” - “The Dicks They Are A’Changin’ ” 1996).
In May of 1967 or thereabouts, Essex Music printed Matthew Fisher’s Unregistered Melody on the sheet music of AWSoP,  and did not initiate an investigation into the need for a credit revision. In July of that year, Fisher visited Essex, examined that sheet music, saw his uncredited work on it, and soon after that he asked Gary Brooker for a co-authorship and was refused, as Fisher reported to Jonathan Singer in Circus Raves Magazine, Volume 1 Number 1, January 1974.  And so began the unfortunate series of events leading up to this point.
I trust you are aware that the enormous financial burden Brooker is facing would not go to Fisher but rather to Lawyers.  Time and time again, I see the music press lamenting about how the lawyers are “making out like bandits” in these types of cases.  I’ve also seen advice by legal experts, telling musicians they basically have 2 choices in settling credit disputes: 1) reach agreement amongst themselves, which is often extremely difficult with no one present
possessing the authority and expertise to facilitate and mediate such discussions based on knowledge rather than emotion or misinformation, OR 2) hire expensive lawyers and endure highly unpleasant litigation, at the end of which, if they win, the lawyers get most of the money.  These problems are recognized by the experts, but met with much hand-wringing that there’s nothing to be done about them. 
Well this non-expert thinks there is something to be done. A profession already exists whose
inherent (but unacknowledged) responsibility is the establishment and maintenance of the
integrity of songs, including the accuracy of the lucrative songwriter credits. That profession of course is The Publisher. Thus far publishers have not been expected by law to take responsibility and initiative in assuring the accurate crediting of the songs they publish, but are in an excellent position to do just that, at a tiny fraction of the cost of a court case. They should, by the nature of their profession, be well informed about the legal precedents involving credit, have the skills to help settle disagreements amicably, the resources to call in independent mediators if
needed, or if all else fails, prior to publication of the song, to initiate court proceedings.  Under such conditions, I believe musicians and songwriters would be motivated to reach agreement without going to court,  to avoid a delay in the release of their music, and I believe if Essex had taken this initiative
in 1967,  AWSoP would have been credited to Brooker/Fisher/Reid that year.  Failing that, with the passage of time and buildup of acclaim for Fisher’s part of the song, its use in all those cover versions, etc., during which the “composition” status of Fisher’s music became increasingly apparent, Onward could have initiated a credit revision at any time in those 38 years, up until lawyers got involved in 2005. 
I believe that Gary Brooker would now share credit with Matthew Fisher if such action didn’t also entail the payment of those huge costs of trial,  a trial that would have been unnecessary had Essex/Onward done its job.  The publisher in this case is doubly culpable, in my non-expert
opinion: not only shirking a responsibility that most or all publishers up to now have been shirking because The Law, up to now, has allowed it, but also committing the egregious oversight of printing an Unregistered Melody on its sheet music. 
I think it’s not too late for there to be a very beneficial resolution to this case, both for Brooker and Fisher, and also all musicians and songwriters, who will no longer be left twisting in the wind on their own when a similar situation comes up:  IMHO: As restitution, Onward Music should pay the court costs, and also relinquish publication of AWSoP, so that Brooker, Fisher and Reid can find a new publisher for their current and future music, a publisher who will now be aware,  due to this case, of its professional obligations.

Comment by Joan May — January 23, 2007 @ 2:08 pm

ross palmer   who is ross palmer anyway?
is ross palmer a musician the caliber of matthew fisher?  nah don’t think so.
is ross palmer a judge ?  nope that’s for sure.
  is ross palmer a critic?  oh you bet he is.
  and what is it critics are good for [ besides little to none ]  thats right to criticize .
joan may already explained matthews contribution as a specially designed and beautifuly integrated piece that changed the initial registered song.
it wasn’t like a little add on to fatten up the song . it was a masterpiece of hard work that re designed an original idea into the top hit it became. 
so all i can say is thanks joan , you and the judge have a handle on this. sorry to say critics like ross palmer have plenty of time on their hands to condem what they have little knowledge of .
come on ross , write about something you have a working knowledge of .
  i think it is just fantastic that matthew is getting at least a portion of what most of us have known and wanted for him since 1967 !

Comment by tom mckee from usa — January 26, 2007 @ 10:38 am

Hi. I’m glad you’ve taken the time to read this. Tom, I do acknowledge Fisher’s excellent contribution. As for legalities, I don’t claim an expert knowledge. What I do know is that there is a provision in English law that an arrangement of a song, if sufficiently different from the copyrighted original, may be registered as a separate work, with it’s own existence in copyright.
The judge, I think, was hasty in ignoring this avenue.
I would argue this would have been the best ruling, as that way Fisher would get his due for a job well done and the integrity of ‘A whiter shade of pale’, as written by Brooker and Reid and registered to Essex Music before Fisher ever heard the song, would have remained intact.
I’m simply trying to draw out the differences between song - to which Fisher did not contribute - and the arrangement of the song that Procol Harum released, which he contributed a great deal to.

Comment by rjpalmer — January 26, 2007 @ 11:09 am

hi ya ross   glad to see you were not offended by what some might take as tongue in cheek comment to a serious article .
  i like your reply to me better then the article but seriously :  i think the only way to weigh the judges decision was to be there all through the days of presentation to the court.
also there seems to be a tad of mystery as to what happened to the original tape recordings of the original version of the song that mr. brookers claims would prove his verion was already basically what mathew followed on.
naturally this :tape: would have clarified mr. brookers case if there was a case for him at all.
. i bet mr. brooker has every little bit of recorded music he has ever been involved with .
quite surprisingly though not the most famous piece of pop music he or most anybody ever had been on is gone with the wind.
i see your point but again think that without being there in court all those days and weeding through all the input it is jumping the gun to point fingers at any party involved.
  also i think joan may’s comments are well chosen and close to my personal opinion also .
  this comment was neither promoted endoresed or paid for by the matthew fisher fan club of patterson nj usa !

Comment by tom mckee from usa — January 26, 2007 @ 12:26 pm

>>> there is a provision in English law that an arrangement of a song, if sufficiently different from the copyrighted original, may be registered as a separate work, with it’s own existence in
copyright
>>>

The released version of AWSoP IS the composition, not an ‘arrangement’ of another never-released composition.  The Brooker/Reid “copyrighted original” was, in fact, an abandoned, unfinished precursor of AWSoP. It’s only the Brooker/Fisher/Reid song that the public knows and loves as AWSoP.

>>> that way Fisher would get his due for a job well done and the integrity of ‘A whiter shade of pale’, as written by Brooker and Reid and registered to Essex Music before Fisher ever heard the song, would have remained intact.
>>>

The abandoned precursor Has no integrity; that term only applies to the completed song.

>>>
I’m simply trying to draw out the differences between song - to which Fisher did not contribute - and the arrangement of the song that Procol Harum released, which he contributed a great deal to
>>>

It was the precursor that Fisher didn’t participate in. He contributed gloriously to the song, a song which, in my humble non-expert opinion,  Essex Music failed to credit and copyright properly, hence all the subsequent trouble.

Comment by Joan May — January 26, 2007 @ 7:50 pm

— PopMatters sponsor —

Maybe a bit late on this thread but one has to wonder at Mr. Palmer’s motivation.  His argument I think is that once a demo recording has been made tough to anyone that later comes along adds an original part or even a killer hook.  RP would say that person has no claim to the later version even where the composers of the demo version actively promote the later version.

In AWSOP of the demo version was 8 minutes long and had improvised intro and solos.  Hardly the 3 minute pop hit.  Along comes MF composers an instantly recognisable organ intro (which by the way GB accepted - if RP bothered to read the judgment) and melody throughout the song.  In RP world of copyright MF has no claim because some early demo no-one had ever heard existed.  Lunacy.

What on earth is RP talking about the 8 minute demo for it was never released no copy of it exists and no-one but a select few has ever heard it. 

As to MF motives RP in true amateurish fashion stated he was suspicious.  Err again a journalist worth his salt would have read the judgment and noted that GB said MF wrote the organ part.  So MF and GB both agreed MF wrote what he said he wrote so how can Mr. Palmer claim it is suspicious.

My advice Mr. Palmer is give up the day job if it is music journalism because you have no idea what you are talking about.

Comment by John Smith from London — June 13, 2007 @ 8:40 am

good point john !  and thinking the point got lodged somewhere south of rp’s macon dixon line!
ouch!  i think rp is finally getting the [ oh i won’t say point again!] idea that maybe the old saying “look before you leap” is starting to set in. 
  i here they are looking for graveyard shift assistant fry manager at mc donalds in singapore.
  tmc

Comment by TMC from us of a — June 13, 2007 @ 1:00 pm

The opinion that originated this thread, is lamentable.  A demo written by Brooker/Reid, with a copyright, is not the song that became a smash hit and a generational anthem.  That song, as the world knows it, is characterized and recognizable by a melody subsequently composed by Fisher—in a good faith contribution that was erroneously denied a writing credit. It’s not a choice in arrangement, it’s a contribution to the composition. Yes, you can play AWSoP without it; you can play AWSoP without the lyrics; you can play AWSoP and alter the bassline; you can play AWSoP and change the chord progression; all that’s irrelevant.  When you consider that you can watch a movie that uses AWSoP in its score, but only the Hammond melody; when you consider that you can buy a AWSoP ringtone today and hear only the Hammond melody, you start to gain some small appreciation that the Hammond melody and AWSoP are One, and a failure to recognize Fisher is a co-writer is simply inaccurate.
    As to seeing something nefarious in the 38 years or so it took this controversy to go to court—What might that be?  Perhaps someone will be kind enough to explain what sort of sinister master plan Fisher was following, in order to deny himself decades worth of royalties, including the period when the song was a smash hit, which he can never recover now.
    Has anyone ever heard the phrase, “pride in authorship”?  Is there room in your philosophy for that as a motive?
    Fisher’s victory does not make new copyright law, and threatens no songwriter involved in an honest, mutually respectful collaboration.  Quite the opposite is true; it is heartening to every artist in a collaboration, that they do not have to accept a grossly unfair and arbitrary decision by someone who happens to hold the upper hand in a music business association.
    —Garry Herzog
      U.S.A.

Comment by Garry Herzog from U.S.A. — June 14, 2007 @ 7:49 pm

Add a comment

Please enter your name and a valid email address. Your email address will not be displayed. It is required only to prevent comment spam.

Remember my personal information

Notify me of follow-up comments?