Judgement Reached in the Procol Harum Lawsuit

[Anderton]

To bring you up to speed...Matthew Fisher claimed that his organ solo in Whiter Shade of Pale was distinctive, an essential part of the song, and that he deserved some share of the royalties for same.

 

You can find the judge's opinion at: http://www.procolharum.com/awsop_lawsuit-061220_judgment1.htm

 

Aside from the legal aspect, if you're willing to wade through to the appropriate parts, it gives some fascinating insights into how the song was written and recorded. (I never knew that Robin Trower wasn't the guitarist, for example).

 

Check it out...

[steveg]

This is very interesting. Do you know if this sets a precendent or if this is a pretty standard situation? With a lot of the session and production work I do I often end up writing "hook" phrases, chords or guitar parts that are clearly composed lines. I wonder if there is some sort of "standard" about how much of the copyright this entitles one to??

[zenchin]

The ruling is only applicable to UK law. Won't have a bearing at all here in the U.S for two reasons.

 

1..the work-for-hire contracts that are common here. You go into a session under work-for-hire, you own nothing you come up with. You are simply owed the fee you agree to be paid. Musicians who don't like the work-for-hire concept when offered to them simply don't take the gig.

 

Musicians who participate in a session with no contract spelling out any sort of terms (nobody really does that right?) have no rights compared to whoever wrote the song and has already filed the copyright (nobody really writes a song and begins recording it before filing a registration for an unpublished work...right?).

 

2. Statute of limitations laws here in the U.S. You cowrite a song, don't get credit, and wait 40 years to take it to court, you're out of luck buddy. You waited too long and the case will be thrown out. As it should.

 

If point one doesn't stop a U.S court case, point 2 will...if you wait long enough.

 

As there was no statute of limitations law preventing the UK judge from ruling as he did.....on an organ line that was invented by Bach no less...not the Procol Harum organist....my guess is that there is going to be a ton of pressure on lawmakers in the UK to get some strong statute of limitations laws hammered into place pronto. Otherwise, this ridiculous case is going to open the floodgates for thousands of other people who happen to remember they participated in creating something last century and aren't getting credit for it.

[Anderton]

I agree. As much as I believe in credit where credit is due, I think in this situation, Fisher didn't have a case.

[Lee Knight]

To me, the real question is: is it really by Bach? As I understand it, it's a mish mash of a few different composers, in the style of Bach, but not a lift. I don't know if that's true or not, but if it is...

 

Then I think he did have a case. If that's is so, he should have had credit from the beginning. What's the first thing you think of when you think of that song? 40% is too high but that isn't fully retroactive I don't think.

 

Mission Impossible's theme. Apparently that bass line was the creation of Carol Kaye. The chart existed, minus the bass. She read her chord chart and came up the line. They immediately re-wrote the horns to double bits of her line. No credit... or money beyond the session.

[spokenward]

Sleepers awake, Percy Sledge is calling you...

 

 

We used to try and crib the Stax sound, but at the time, on Whiter Shade of Pale

[Hard Truth]

I disagree with the decision. It opens up a big can of worms with other musicians on a recording claiming composer credits for their part. I would think that session musicians sign a "work made for hire" agreement relinquishing their rights to such a claim. But it gets a lot messier with the members of a band which is a partnership (as opposed to being employees of the leader).

 

Take a song like My Sharona, where the drum beat was key to its success. Does that mean that the drummer deserves song writing credit? I personally would say the musicians should not get composer credit in both the case of My Sharona as well as the Procol Harum case. My reason is that it is simply too difficult to track who came up with which idea. Did the song writer tell the drummer what type of beat to play or did the drummer come up with it on his own? Would any other drummer have come up with the same beat? These questions are too hard to determine, and I know from personal experience that many players give themselves too much credit for their contributions.

 

It seems to me that the best way to avoid these hassles is for songwriters to act as employers of their band and have them agree to a "work made for hire" agreement." as a condition of employment.

[Anderton]

 

 

I always thought the job of musicians was to come up with great accompanying parts, and the part of the songwriter to create the song they accompany. The musicians should get compensation for their accompaniment, but I think the greater credit should go to the person who creates what's accompanied.

[Lee Knight]

I agree Craig, but I also think Lighter Shade is a special case. It's not at all like Sharona in my view. It's closer to my Mission Impossible example. When a support instrument becomes one and the same with the song it's time to divey up.

[blue2blue]

 

Originally posted by Lee Knight To me, the real question is: is it really by Bach? As I understand it, it's a mish mash of a few different composers, in the style of Bach, but not a lift. I don't know if that's true or not, but if it is... Then I think he did have a case. If that's is so, he should have had credit from the beginning. What's the first thing you think of when you think of that song? 40% is too high but that isn't fully retroactive I don't think. Mission Impossible's theme. Apparently that bass line was the creation of Carol Kaye. The chart existed, minus the bass. She read her chord chart and came up the line. They immediately re-wrote the horns to double bits of her line. No credit... or money beyond the session.

 

 

Have you heard Philip Glass's Concerto for Timpani?

[John Sayers]

Fisher probably had a case AT THE TIME and had he bought it up then he may have had a chance at some points. But to bring it up now is unbelievable IMHO. Geoff Emmerick might has well demand production royalties for his work on the Beatles instead of the EMI salary he probably was getting at the time.

 

No it's not Bach IMO, and I'd hate to think that Bach had a copyright on the decending bass line. It's Bachish, in his style and it's been done again many times on many albums you've probably never heard.

 

Maybe he should have transcribed his part and released a Matthew Fisher Hammond Songbook with instructions on how to play the part his way plus! other spicey organ tips.

[fred zappelin]

I always thought the organ part was Gary Brooker ! Brookers wife mentioned in the manuscripts that Gary had done a piano demo of Whiter Shade before the plaintiff was even involved which sounded close to the organ solo intro. Too little too late IMHO.

 

Whenever I hear the intro to that song it makes me think of someone going off to college for some wierd reason.

 

One of My favorite Procol Harum songs is Broken Barricades

 

Later !

 

 

[MikeRivers]

Originally posted by Anderton I agree. As much as I believe in credit where credit is due, I think in this situation, Fisher didn't have a case.

Good thing Elmore James isn't around to claim credit for just about every blues slide guitar solo played since Dust My Broom.

[MikeRivers]

Originally posted by Lee Knight TMission Impossible's theme. Apparently that bass line was the creation of Carol Kaye. The chart existed, minus the bass. She read her chord chart and came up the line. They immediately re-wrote the horns to double bits of her line. No credit... or money beyond the session.

Didn't she also come up with and play the signature guitar riff on the Ritchie Valens recording of La Bamba?

[Guitslinger]

A similar claim was made by Clare Tory for her vocals in Pink Floyd's The Great Gig In The Sky. If I recall that case was settled out of court with Tory receiving a writing credit.

[LiveMusic]

 

Originally posted by fretwizz That sounds great in theory. But, in practice, many songwriters do not believe they owe the musicians who played on their tune anything at all. It often destroys the creative partnership with "non writing" musicians holding back with their creativity because they know they're not going to get any reward for it.

 

 

But isn't this the way Nashville works? Musicians are "for hire" and they get their session rate and that's pretty much it. They are expected to be creative. I don't think most get songwriting credits.

 

One thing to be aware of, IMO, is that one does not really know that a riff will become "key" until much after the fact. Meaning zillions of air plays.

[Anderton]

owe the musicians who played on their tune anything at all.>>

 

I think you may have misunderstood what I meant by "compensation." I didn't mean a royalty split, but what session musicians get paid, or a flat fee that's negotiated for work done.

 

I was mixing consultant once on an album that I thought would do very well. I really really tried to get points, any points, but the company was adamant about paying a flat fee. I could have walked and not done the CD, but I went for the flat fee. The album stayed in the New Age top 20 charts for over a year -- wish I'd gotten the points but I'm not going to go back and sue on the grounds that my twiddling of dials was responsible for its success! Frankly, the musicianship was so good it worked have sold just as well had it been recorded on cassette

[Jon Gnash]

Originally posted by John Sayers Fisher probably had a case AT THE TIME and had he bought it up then he may have had a chance at some points. But to bring it up now is unbelievable IMHO.

I think this is called estoppel by laches.

[Anderton]

estoppel by laches.

 

I thought that was a French soup-like dish involving shrimp and artichokes