"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Tuesday, 23 March 2010

Music and the law

Another internal company piece.

In its final batch of judgments before re-branding itself as the Supreme Court, the House of Lords allowed the appeal of Gary Fisher, the former lead singer of Procol Harum, who had claimed joint-authorship of the band’s best known song A Whiter Shade of Pale. Fisher claimed that it was he who was responsible for the organ heard in the song, which he said should render him a joint author. The trial judge agreed and although the Court of Appeal allowed the appeal of the defendant, that finding of fact was never challenged.

The decision was a pretty straightforward one on the facts. Mr Fisher had the idea for, and the execution of, the organ part, which is unquestionably an integral part of the famous version of the song, and therefore he was entitled to a share of the royalties.

It is, however, possible to think of rather more difficult examples. In considering the legal test for entitlement to royalties for records, we are of course dealing with the altogether more philosophical and esoteric question of what constitutes a song at all.

Ordinarily a song is considered to consist of lyrics and the melody, and whoever is responsible for those would be considered the composer or composers. Immediately one can single out A Whiter Shade of Pale as an exception, given that Mr Fisher had written neither. In some cases the riff would be seen as the signature of the tune, particularly in the genre of classic rock: Deep Purple’s Smoke on the Water, or Led Zeppelin’s Whole Lotta Love (familiar to anyone who remembers Top of the Pops at least), for example. In traditional Blues music many of the classic 12 bar arrangements tend to be generic and it would be impossible to agree on their origins (save for the certain point that even if the original composer or composers could be identified, they would have been dead for many decades and therefore their copyright would have expired years ago).

More difficult still is virtually the entire body of music that would fall under the rubric of jazz. In most live performances there is a significant degree of improvisation. For example, Duke Ellington, the received master of the art, revived his career in the late 1950s with a legendary performance at the Newport Jazz Festival. The climax of his set was a rendition of his Diminuendo and Crescendo in Blue. The most famous part (coincidentally my least favourite) is a saxophone solo by bandmember Paul Gonsalves which was virtually completely ad-libbed. Should he, rather than, or at the very least as well as, the Duke therefore be considered the composer of the piece? What of the fact that his intended solo was far shorter but the Duke waved him on throughout as he discerned the crowd’s reaction?

Nor is jazz improvisation confined to the music. Ella Fitzgerald forgot the words to Mac the Knife when performing in Berlin, yet she ad-libbed them anyway and the resultant performance is almost as well known as those by her contemporaries Louie Armstrong and Bobby Darin. Cab Calloway also forgot the words once when he was singing live and, lacking Ella’s ability to fashion an instant lyric, instead just improvised with harmonic sounds, in the process creating the new sub-genre of Scat by himself. (In the Blues Brothers film he appears singing Minnie the Moocher, a Scat classic.)

I suppose in each of the above examples the performer in question would have had a strong case for co-authorship with the original composer, though the CD details rarely acknowledge as such. Perhaps on the odd occasion at least this is down to modesty on the part of the improviser. Eric Clapton has played countless Robert Johnson songs, of which he never claims to be a composer or joint-composer. Yet in many of them, such as the live version of Crossroads when he was with Cream, the song really should be considered his and those parts borrowed from Johnson purely incidental. (That said, Johnson is often reputed to have sold his soul to the Devil in exchange for his musical gift, so perhaps Eric was erring on the side of caution by continuing to credit Johnson least he provoke an irate response from the true original composer.)

Once one reaches the 1980s and the era of sampling, then at once the issue becomes both more difficult and easier at the same time. If someone has lifted an entire part of an earlier recording then it is hard not to say that the original person should receive the credit: MC Hammer and Rick James, for one. Then again, one would have to judge how much the sampled part actually formed part of the later work. It is unlikely Richard Ashcroft’s view coincides with Mick Jagger’s - though in fairness to Mr Jagger the dispute over Bittersweet Symphony was nothing to do with him personally, it was the record company which brought the claim, yet the song is now credited to Jagger and Richards. Ashcroft later said that it was the best song that the Rolling Stones had written in 20 years (personally I disagree since the last worthwhile Stones album was probably Tattoo You in 1981).

I haven’t even mentioned the issue of producers either. George Martin wasn’t known as the Fifth Beatle for nothing; and a short comparison between Sgt Pepper and some of the early work will illustrate why. Phil Spector’s ‘wall of sound’ went substantially towards creating a style of music familiar for decades afterwards. Nile Rodgers remains in my view an unheralded genius, and Blondie would have been an awful though long forgotten punk band had it not been for Mike Chapman (try the original cut of Heart of Glass). Equally of course the likes of Pete Waterman and Simon Cowell have a lot to answer for in respect of what has clogged the commercial airways for years. For better or worse, however, the producers should if truth be told be credited as composers in many instances rather than as a separate entity.

Back to the legal definition of song composition. The short answer is that in almost all instances the matter is resolved by contract before the recording is even made. Hence, of the millions of pop songs, only very few have provoked litigation. Occasionally some horsetrading over contractual rights occurs. Or someone gets irked by the finer details: revealing a source of dissatisfaction of similar vintage to Mr Fisher’s, Paul McCartney recently reversed the famous “Lennon/McCartney” attribution on some re-releases.

In those rare cases which do find themselves before the courts, the usual reified legal terms of ‘fact and degree’ together with ‘expert evidence’ and ‘the facts of each case’ are deployed, leaving one to conclude that it is only slightly less arbitrary than a ruling by the Cadi under the Middle Eastern Palm Tree or the foot of the Chancellor of centuries past.

There is, however, usually some entertainment to be had by musical litigation. Somebody really did want to be held partly responsible for a Phil Collins live CD. Someone else really did claim to have been a member of the teen band Busted. The judge rejected this; he described the unfortunate claimant as something of a ‘fantasist’. (In itself this wouldn’t necessarily be a bad thing – as long as one lived in a happy fantasy world. It would presumably have been happier to have spent one’s days being, say, Mick Jagger, or Keith Richards, but then there’s no accounting for taste). The violin player who considered himself responsible for the intro to the Bluebells’ Young at Heart went to court to prove it. He took his violin with him, and played it too.

Not much humour was found in the Pink Floyd fallout in the 1980s, when former bassist, singer and songwriter Roger Waters tried to stop the remaining members of the group from using the name after he’d left. There was, however, a touch of irony: if the band was predominately identified with Waters by that stage then it had equally been Sid Barrett’s in 1970, and I doubt it had ever crossed Waters’ mind at the time that in fairness to Sid they should find a new name.

More recently of course an apparently united Pink Floyd won a case against EMI (which the spoof band Bad News once explained stands for "Every Mistake Imaginable") on the interpretation of their recording contract. Pink Floyd, rather precious about their concept albums, had a clause which prevented EMI from selling the tracks individually. This obviously posed a problem for EMI in the age of the download, so they argued that the terms did not extend to an MP3 format rather than a physical disc or record. One up for musical integrity as the court ruled in the Floyd's favour. Win some, lose some, as ever.

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