Curiouser and Curiouser

Ray Minich · From: Bradford, Pa. Frozen Tundra

From the Wall Street Journal 01/06/07...

Last month a London judge awarded 40% of the copyright of Procol Harum's "A Whiter Shade of Pale" to Matthew Fisher, the group's ex-organist. Mr. Fisher, who had asked for 50%, doesn't claim to have written the song, but he did write the Bach-like organ countermelody heard on the group's 1967 recording of "A Whiter Shade of Pale," which sold 10 million copies. Judge William Blackburne called the countermelody "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."

"Countermelodies"... huh?

This should open up a new can of copyright worms...

Richard Sevigny · From: Salmon Arm, BC, Canada

There was quite a discussion about it here:

http://bb.steelguitarforum.com/viewtopic.php?t=57346

FWIW try to imagine the song without the organ. I don't think it would have anywhere near the same appeal. I think the judge made the right call.
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Richard Bass · From: Sabang Beach, Philippines

Check this out, from todays Tennessean:

Sunday, 01/07/07
U.K. ruling intrigues Nashville musicians
Judge: Enduring instrumental riffs deserve royalties

By PETER COOPER
and RYAN UNDERWOOD
Staff Writers

Music Row woke from its self-imposed holiday hibernation last week, scratched its collective head and wondered, "Wait, has everything changed?"

A best-guess answer is "Probably not," but many Nashville session players are smiling over a British judge's recent ruling that granted partial songwriting credit to an organist whose memorable intro helped define Procol Harum's surreal 1967 rock hit "A Whiter Shade of Pale."

The judge's decision deemed Matthew Fisher's organ to be "a distinctive and significant contribution to the overall composition." In other words, the organ isn't an accessory, it's part of the song's DNA.

If such a notion turns some Nashville songsmiths' faces a whiter shade of … well, you get the idea … it's because the British judge's definition would certainly apply to parts played on hundreds of famed Nashville recordings.

The way that Nashville songwriters and musicians collaborate would be fundamentally altered if the ruling set a precedent.

For songwriters, the case offers a reminder to get what amounts to a kind of prenuptial agreement with any potential co-authors before working on a song together.

And for local session musicians, the case raises faint hopes of grabbing new slices of royalties on old hit songs in which they may have contributed a genius guitar riff or a defining steel guitar hook. The case also highlights the crucial contributions of the sometimes-faceless players behind the hits.

"It's building the case that singers don't necessarily rule the world," said Jerry Douglas, a member of Alison Krauss' Union Station band whose Dobro parts have added to recordings from Krauss, James Taylor and other luminaries.

Players often compose

Grady Martin's acoustic guitar work on Marty Robbins' "El Paso," or Don Helms' steel intro to Hank Williams' "Cold, Cold Heart," or Brent Mason's twanged-out leadoff to Alan Jackson's "Chattahoochee" all made hit songs more memorable. These musicians, though, did not share in songwriting proceeds.

This is the way of the professional musical world: Musicians are paid to play the session, and playing the session often means composing parts. Until "A Whiter Shade of Pale," that system hasn't been successfully challenged.

"That opens up a big can of worms," said Mason, one of Nashville's most in-demand guitarists. "There've been instances where I felt like I made a major contribution to a song. People come up and go, 'Don't you get more money if you do that?' Well, no."

Musicians were quick to e-mail one another after hearing of the decision. "Sidemen rejoice," was one subject line, with a link to a news story about the case and a brief note that read, "Nashville side players, get your lawyers ready!"

Effect in U.S. doubted

But Ramona DeSalvo, an attorney in the entertainment practice at Nashville law firm King & Ballow, said she thinks U.S. laws — and the particular circumstances of the U.K. case, which is under appeal — are too different for that ruling to have any effect here.

In the U.S., potential co-authors have only three years from the date of creation to claim a songwriting credit on a work, DeSalvo said. Further, a person must be able to demonstrate that copyrightable contribution to a work was created with the intent of co-authorship, rather than coming up with some brilliant tweak of a song in the studio.

"In this town especially, I can't see something like that happening," DeSalvo said, explaining that in country music, a professional songwriter (or more likely two, three, four or more) will typically author a new work and then shop it around for an artist and group of musicians to cut in the studio.

The more likely scenario for a case like that involving "A Whiter Shade of Pale," DeSalvo said, is when a band comes up with some new song in the wee hours of the morning after a big night on the town. "But it probably wouldn't be viable," she said.

Bart Herbison, executive director of Nashville Songwriters Association International, said his organization has fielded so many questions about the British case that its board of directors will examine the issue at a meeting Tuesday.

"My initial sense is that it's too hard to draw a comparison to that case to have any effect here," Herbison said. "But this should set the light bulb off for everybody that anytime you walk into a room to write a song with somebody else, you're essentially entering into a contract."

Guitar legend Harold Bradley, international vice president of the American Federation of Musicians and a 2006 inductee into the Country Music Hall of Fame, said that if any part of the British ruling makes it to the U.S. it could really scramble the way professional musicians do business.

Some like setup as it is

"It's always been a musician's job to come up with a hit lick. That's what we get paid for," Bradley said. "If this is something that comes across the pond, it will just turn our world, and the way we do business, upside down."

Though the session player seldombenefits on the songwriting end of that contract, he or she does get paid for the session. A songwriter might never make money from a composition, as it might never be played on the radio or even released for sale to the public. No matter what, though, a session musician under union contract receives money for playing.

That arrangement is fine by Bob Moore, who played bass on hundreds of country and pop hits.

"If I had songwriting credit on some of those, I could be a wealthy man," Moore said. "But I'm an East Nashville boy, and I think your word is the most important thing you've got in this world. If you go in and work on a record session, they hired you to come in because they like your ideas and your playing. I did put my ideas in, but I was hired to do that."

Some artists have long included band members in royalties. Charlie Daniels credited his band members as co-writers on hits such as "The Devil Went Down To Georgia" and "In America," and Douglas said Krauss is generous about such matters.

"That may be something for more bands to take a look at," Douglas said. "I don't think it's fair for one person to take all the marbles and go home at the end of the day."

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Charles Davidson · From: Phenix City Alabama, USA

The organ MADE that song a hit IMO,Be like Look AT US without John H. Vince is a great singer,but the song would NOT be the same with out John.

David L. Donald · From: Koh Samui Island, Thailand

One strong point is:

This was a BAND and they arranged it together,
and the organ was integral to the feel of the song.
It set the stage for the words,
AND was created within the band framework.

That is different than the studio hired gun thing.
Arrive at the studio, play the chart, get paid, go.

A band member who did create something integral to the whole,
should get something more than nothing.
The studio musicians gig is to come in for pay and do the same,
but they are already remunerated at the time.
Contract finished, unless it specifically includes % points.

Nothing agains't studio cats,
like Brent, Paul, Grady, Pete etc etc.
but it just ain't the same thing. IMHO

A band is a working unit around a song writer,
studio sessions are rent a picker.
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Real happiness has no strings attached.
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Scott Shipley · From: The Ozark Mountains

I agree with David.
I am saying this as a Nashville musician, and as I'm ducking, but, scale is fair IMH (and semi-qualified) O, keeping in mind that some of the guys that have been mentioned are getting way more than scale. If I agree to do a job, whatever it is.........guitar, steel, laying bricks, whatever, and I am paid what I agreed to, then I do not have the right to further compensation, now or later. Sorry, but if you are hired to play lead guitar, then creating a hook line is just part of the gig. You simply don't have the right to come back later if the song has made a buck or two, and ask for more. As I said before, if the song wasn't a hit, would there be anybody whinin'? If you are part of the creative element of a group, then it is up to you to make sure you are part of the business side too. No time for sour grapes after the fact. If it starts workin the other way somebody please let me know because that means I'm due some serious back pay! I'll be takin everybody out to the Italian Grill! No, wait........that'll mean Bobbe will be rich (er). Ima let him pick up the tab. Wink

Jim Cohen · From: Philadelphia, PA

David, apparently not so. According to one article I read, Matthew Fisher WAS a sideman, called in JUST for the session, and was NOT a band member at the time of the session. Only AFTER the song started heading up the charts did they offer him a place in the band, so that they could tour in support of their (now) hit song. But he WAS hired as a sideman to record an organ part to WSOP.

Dave Mudgett · From: Central Pennsylvania and Gallatin, Tennessee

There are a lot legalistics here, and a lot of ways to look at this. But to me, the issue is who created the original music that is being copyrighted. I don't see why it matters whether you did it while working for a music publishing company on Music Row or whether you created it at a session. If it's original and a significant contribution to the song, I think the person that created it should have the right to copyright it. It seems to me that the only way to say that's not correct would be to sign a waiver of that right before you entered the studio. By my look at the issue, creators have a right to copyright their creations, period.

One could possibly argue that a profound add-on contribution to an already-created original song is a separate creation. For example, I tend to look at Matthew Fisher's intro and solo as a separate piece, played over the same Bach-inspired chord progression as the the lyric melody. Why not say there are two separate copyrights involved? Either way, I really don't understand why studio musicians should be expected to create original music at a session and then not be able to copyright it the same as a "songwriter". Lots of songwriters write at a session.

I imagine that the lawyers will slug this one out, and probably make most of whatever money accrues from whatever decision is made. BTW, I'm not a lawyer. Wink

Don Walters · From: Saskatchewan Canada

Tom Olson · From: Spokane, WA

The way I look at this case is:

According to my understanding, the band had already written the song before calling Fisher in to record the organ part. If some other organ player had been called in instead of Fisher, the recorded version of the song may not have been as appealing as it ended up being, and it may not have been a hit -- but on the other hand, it may have been a bigger hit and may have been more appealing than it ended up being.

We'll never know for sure.

But one thing we do know is that either way, it would have been the same song -- i.e., it would have had the same melody, the same words, and the same vocals, etc., because it had already been written. If it had been someone else besides Fisher, the final result would have been a different recorded version of the same song.

Therefore, at most, Fisher contributed only to the sound recording, but not to the composition of the song itself.

So, in my opinion, Fisher should be entitled to no more than a share in the copyright of the sound recording, but there's no way he should be awarded an interest in the copyright of the song itself.

Bo Borland · From: South Jersey -

If it changes to way session business is done, that's fine with me.
I am in agreement with Dave M here.
Brent Mason, John Hughey, and other great players create parts that make the tune a hit.
What would a silly ditty like Chatahootchie done without the Brent Mason into?
I don't think the tune was not complete until it was added.
What's wrong with sharing the profits with the guy who helped create the hit?
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Currently picking with
Mason Dixon Band masondixonband.net

Tom Olson · From: Spokane, WA

Let's say you draw up a set of plans for your dream house, and you hire a contractor to come in and build it. Let's say the contractor does an absolutely fantastic job and the house turns out better than you ever dreamed it could have. Should a judge award the contractor part ownership in the house?

Dave Mudgett · From: Central Pennsylvania and Gallatin, Tennessee

This is about intellectual property, not real property. Strictly hypothetically, suppose an architect asked a builder who was building one of his designs to figure out a non-trivial design change to add something to a building he designed. The builder would be also acting as an architect, and should share the design credit, unless something else was agreed to. I think that is the relevant analogy.

The way I see it, the issue is whether what a studio musician creates in the studio is an original composition or not. If it is, he should be able to copyright it, otherwise not. I would argue that if the composition stands on its own separately from the rest of the song - for example, it could be "sold separately" or plug into other songs and stand on its own, then it's an original composition. I think Fisher's intro and solo do just that. That's the judgement call, IMO.

This is in sharp contrast to a solo which, for example, just plays around with the original songwriter's melody. It would need to stand out on its own. Garth Hudson's intro to "Chest Fever" is another one like this, IMO.

It seems there is a fine line here. In the Fisher case, the song authors were involved with the production of the record and could choose whether or not to use Fisher's "composition". They decided to use it of their own free will, so to me, it seems that they were accepting the benefits from it, and need to share credit.

On the other hand, if a remote songwriter sells a song to a production company, and they use it, it seems to me that the songwriter should be paid fully for its use and not be required to share copyright, since that songwriter has not given permission for something to be added. But if a musician adds an original composition to it, then I don't see why he or she shouldn't be able to copyright it and also be paid a royalty for its use, unless that right was waived in taking the gig.

I'm just arguing theoretically here. Who knows how the legal system will parse this all out.

Tom Olson · From: Spokane, WA

The principles of real property and intellectual property aren't so different.

Jim Cohen · From: Philadelphia, PA

Oh, here's a different way to look at the issue:

If I were to take my 6-string guitar and go on television (or or radio, or in a club, for that matter) and sing my own version of WSOP, no bass, no organ, no nuthin', would a royalty still be due? In other words, if I delete the organ part, would anyone claim that it's still the same song and I'd better pay up? If so, then one would have to argue that Fisher's contribution is not part and parcel of the song (of the recording, yes, but not of the song itself). To put an even finer point on it: Would Fisher himself claim that he was due a royalty for a version that omits the organ lines?

Tom Olson · From: Spokane, WA

Jim, if I may make an understatement -- that is an extremely good point.

Dave Mudgett · From: Central Pennsylvania and Gallatin, Tennessee

Jim Cohen · From: Philadelphia, PA

Dave, I'd still like to know if you think I should pay Monsieur Fisher when I play the song all by my lonesome with my 6-string in a coffee house. Now, don't get too long-winded on me, Dave; this is a 'Yes'/'No' question. Wink

Dave Mudgett · From: Central Pennsylvania and Gallatin, Tennessee

Jim - under my first hypothesis, Fisher contributed to song, so

If you play any part of it, you pay 'em all. The outcome is "Yes".

Under my second hypothesis, Fisher made separate contribution, so,

If you play Brooker/Reid part only, then pay Brooker/Reid only.
If you play Fisher part only, then pay Fisher only.
If you play both, then pay 'em all.

The outcome is "No" if you delete Monsieur Fisher's part, as you indicated earlier.

I can write a truth table if you like. The real truth here, though, is it's whatever the judges finally say. Are we having fun yet? Wink

Tom Olson · From: Spokane, WA

Dave, you said:

Tom Olson · From: Spokane, WA

I think the whole argument boils down to the definition of "song."

In my opinion, the definition of "song" is the lyrics (if any,), the melody, and the chord structure.

Anything other than that is strictly embellishment. I'm not saying embellishment is never important to the finished product (e.g. the sound recording). But, in my opinion, however important or unimportant the embellishment, it is not part of the "song."

Dave Mudgett · From: Central Pennsylvania and Gallatin, Tennessee

Tom - I agree that the defn of a "composition" is the real issue. A chord progression definitely does not define a song. I think that is already established. I think it has to be judged on the whole thing, not any one aspect.

BTW, I agree that a pure embellishment to an already-existing song is not, by itself, a composition. I addressed that point in my earlier posts. I think Fisher's composition stands on its own. That is, of course, arguable, but I think Fisher's contribution is so integral that the song, as purveyed for the last 40 years, doesn't completely stand on its own without his contribution. YMMV, but the judges are gonna decide this, not us. Smile

Jim Cohen · From: Philadelphia, PA

Thanks, Dave. It was really just a test to see if you could answer a simple Yes/No question without needing a truth table. I'm afraid you failed, Dave. Wink

Dave Mudgett · From: Central Pennsylvania and Gallatin, Tennessee

Jim - I only offered to write the truth table, but didn't do it. Wink

Quite seriously, I don't think most complex issues can be reduced to a pure tautology or contradiction - pure "true" or "false" answers that don't depend on any other premises. Unless you're a judge, of course. Wink