Malcolm Fisher is skipping the light fandango today, turning cartwheels cross the floor. The organist from 60s band Procul Harum won his long legal fight to be recognised as a co-writer of the band’s one huge hit Whiter Shade of Pale — based on his claim that he wrote the song’s haunting organ riff, which is, let’s face, 90% per cent of its claim on you.
In 2005, Fisher, who now works as a computer programmer — the dismal fate of failed musos, retraining at some college above a hairdresser in Barnsley etc — got jack of Harum founder Gary Brooker claiming full credit for the song’s music, and launched a suit to get a co-credit, and a share of the royalties (only those dating from 2005 however).
Lower courts rejected the claim, based largely on the fact that Fisher had waited nearly 40 years to launch a claim, and had in that time, worked extensively with Barlow on Harum retro tours, a gig nearly as sad as retraining to be a computer programmer above a hairdresser’s in Barnsley.
Fisher took the case to the top — the Law Lords, who saw it differently, taking into account Fisher’s argument that he had only realised he could sue when a 2005 case awarded royalties for a single violin part on the 1984 Bluebells hit Young at Heart (no, neither do I).
Fisher’s victory comes at a time when it looks like Men At Work are about to take a loss, for their alleged use of Kookaburra Sits On The Old Gum Tree (you’re singing it now in your head, aren’t you) in Down Under, after the resemblance was remarked on in Spicks and Specks — an event I happen to know was the culmination of a 20-year plot by that show’s producer, angry at the band’s rejection of his offer to be a Bez-style onstage dancer during the Who Can It Be Now years.
Anyway, both cases are another signpost along the way to the further collapse of intellectual property as we know it. At first that doesn’t seem to be the case, since they involve the assertion of copyright — but as Brooker’s lawyer noted, the case opens the floodgates for claims by musicians who recorded material decades ago, and feel that they contributed something to the mix.
That militates against the whole style of rock composition, which frequently involves people “writing” their own parts — ie improvising them around a central lyric, riff or tune. The same applies to session musos often effectively making a whole song from whatever drug-f-cked ramblings a burnt-out star has started with.
The Young At Heart case established, and the Pale judgement reinforced the idea that a “final payment” doesn’t necessarily seal off all claims. Walk On The Wild Side is at least 50% Herbie Flowers’s smooth bass line (an electric bass doubled with an acoustic one), which was done for a single session fee, the Stones’ Waiting On A Friend was made by Mick Taylor’s guitar part (recorded about a decade before its release) and so on and so on.
Sometimes these claims are never activated because people accept the nature of the deal (“Wild Side is about three of Lou’s friends who died, I don’t want any part of the royalties,” said Flowers, a man who looks like a mildly intellectually disabled suburban trainspotter), or because people accept that it was all done in good times etc etc, or because people thought that a buyout of the royalties ended the matter. But whatever people think at the time, time moves on and before you know it you’re retraining as a computer programmer above a … well you get the drift, and the bloke you realise was always a calculating bastard is living it up in LA.
These reversals occur because intellectual property is a fiction, and the way in which it is conceived changes over time. Indeed intellectual property is really an oxymoron — the essence of property is that its transfer deprives the transferring party of its use, hence making possible the concept of theft, or “improper” action. But a song is not a stone axe or a canoe — if I teach you a song, I still have it. It hasn’t been transferred, it’s been duplicated without loss.
Take literary copyright. From the rise of the professional writer in the late 1500s to the mid 1850s, the idea of any sort of ownership by the author was shaky at best — and actual claim to the work was often vested in the patron who’d commissioned it. What established copyright ultimately was not any act of thought, but the spread of the telegraph and the railways — with instant communication between cities established, it was possible for theatre-managers to find out that unauthorised editions of their plays were being put on down the road, in time to do something about it. Nevertheless it took the actor-writer-manager Dion Boucicault three years of transatlantic lawsuits in the 1850s, to establish that he had a right to payment for performances of plays he’d written and developed.
The highly artificial notion of “‘authorship” imposed on something as aleatory and improvised as rock music is coming apart because the wider notion of IP is coming apart. The technologies that made sampling possible pulled the unity of the song apart, and the whole notion of authorship is going with it.
When people are claiming authorship for distinct parts of songs, the song itself is ceasing to exist. The extended enforcement of copyright is helping to pull it apart. Just as post-print written communication will pull apart the book, per se, as an intellectual object, because it is no longer bound, literally and figuratively, by its physical structure and so on and so on.
Perhaps that’s what the old Harum meant when they said:
‘The room was humming harder
as the ceiling flew away
When we called out for another drink
the waiter brought a tray
And so it was that later
as the miller told his tale
that her face, at first just ghostly,
turned a whiter shade of pale’
The ceiling obviously being the Berne Convention on copyright. I’d explain it all if deadline weren’t approaching. And I doubt I’ll ever get back to it.