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 trayAnd 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.

9 thoughts on “IP, a whiter shade of property”
deccles
July 31, 2009 at 1:57 pmHe didn’t write it, he stole it from J.S Bach! Note for note.
meski
July 31, 2009 at 2:03 pmHow many notes/chords seconds of continuous music can be caught as being copyright?
paul noonan
July 31, 2009 at 2:59 pmHold your horses on the Men At Work case Guy.
All that’s happened so far is that the record company that has brought the action against the writers of Down Under has established that it owns the copyright in ‘Kookaburra Sits in The Old Gum Tree’.
Far from heralding the break down of IP law, the question of whether the MAW song infringes the copyright in Kookaburra will be decided according to traditional copyright principles. These include the degree of similarity between the two works and whether a substantial part of the original has been reproduced (this is a qualitative, not quantative, assessment) .
Your point about session musicians contributing to the composition process is well made. I remember talking to Herbie Flowers about how the bass parts on Walk On The Wild Side were put together and my recollection is that his view on ownership was pretty much as you stated it.
That said, in the bands I was in it was always clear who the actual songwriter was. The fact that other members of the band contributed to arrangements etc was acknowledged in one band by allocating a share of the songwriter’s publishing royalties to the other members. Copyright law also recognises joint ownership in cases where it’s not possible to separate out what one collaborator has created from what another collaborator has. Most bands don’t get around to dealing with these issues at the time for one reason or another, although I wouldn’t mind betting that they’re a bit more sophisticated about it now than 20 odd years ago.
People like former Grateful Dead lyricist John Perry Barlow have been predicting the end of copyright as we know it for years now but it hasn’t happened.
Like any human construct, copyright law is not perfect. It evolves and sometimes struggles to keep pace with technology changes. However your piece is a bit muddled in its analysis. The main impact of digital technology to date has been to make it harder to stop infringing activity, not to invalidate the underlying principles of copyright. Given what’s at stake, I would put my money on the content owners coming up with a technological response to the infringement issue. In the meantime, the case law continues to apply the traditional principles to new situations (e.g. the Kazaa case) and the legislation is also updated.
Sampling has actually reinstated a practice common in the middle ages, when composers regularly quoted bits of other composers’ works. Again, technology has made it easier, but it still comes down to whether a substantial part of the original has been sampled. BTW – the previous comment is not wholly correct – the organ part in WSOP references Bach but is not a direct copy.
meski
July 31, 2009 at 3:33 pm… And stop picking on (us) computer programmers!
Guy Rundle
July 31, 2009 at 4:09 pmFirst off, Deccles, Fisher didn’t steal the organ part from Bach. As Noonan notes, it’s in the style of Bach, true – an interesting issue in itself – but not a copy.
OK, the MAW thing doesn’t prove much – just threw it in cos it’s interesting. But as to the idea that copyright isn’t threatened, and the idea that digital technology makes it harder to infringe. Really? How much ‘illegal’ music sharing is going on these days? It’s several degrees of magnitude easier than the old taping off an LP thang, no? What i’m saying is that that technology gradually wears away the notion that copyright is legitimite. Eventually, that form of ownership become unenforcable.
You could compare it to the corn laws of the 1800s, which limited the import of corn in order to protect the rights of aristocrats. The sheer expansion of production and transport made that increasingly absurd. eventually, it was overturned.
I’m not suggesting that copyright is, will, or should be. But it’s definitely a site of struggle and contestation, which it wasn’t twenty years ago
Matt C
July 31, 2009 at 4:52 pmI assume this means I can reproduce Crikey in full outside the pay wall, without fearing any legal repercussions?
Mephistopheles
July 31, 2009 at 6:00 pmLet me join my left hand to your right and together crash through the idiocy of Copyright that started no doubt to give arty and literary younger sons and sisters a chance of leaving an inheritance and has not been extended to the point where Disney Corp and other acquirers of creative people’s copyrights can monopolise them for 90 years after the death of the creator, though *only* 70 years in Australia. When the inventor of a life saving drug only gets a 20 year monopoly (with much of the time often used up in getting approvals) it is an absurd gift of public property for Copyright law to create a monopoly for longer than is required to give creative people the incentive to create and publish. OK, that mightn’t require more than two months and a pat on the back by the PM when handing you a putty medal but a serious professional doesn’t need more than life or 25 years whichever is the longer. Screams of outrage! So, what about life plus 25 years? Of course Garrett’s scheme for resale rights royalties for paintings, sculptures and other works of art is totally unprincipled except to the extent that it keeps Garrett from doing even sillier things in important areas where, if only by accident, what he does might have its (undesirable) desired effect. His enthusiasm for creating an inheritance of Brett Whiteley’s great-great grandchildren won’t actually work if some half-decent lawyers use a bit of ingenuity. BTW I have a little Lucien Freud which you can take title to in Hong Kong if you buy the option I am selling online via EBay in the Cook Islands for only a small fortune. Split the royalty with you…
Heathdon McGregor
August 3, 2009 at 4:41 pmmy favourite copyright tales
WC Handy when facing copyright actions for publishing the blues said there are only eight notes in an octave and only so many octaves available so the same notes are going to reappear.
Keith Richards telling the Verve to get there own song when the stones first (two?) albu8m was all covers and Under my thumb is identical to Clarence Carter’s Slip Away.
A documentary called John Lennon’s jukebox which has the jukebox the beatles took on tour with them to the US and each record was ripped off for a beatles song. Lennon said something like fools borrow genius steals.
My least favourite is Bob Dylan’s management in the sixties copyrighting songs from the folk treadition under his name and restricting creativity for years to come.
The problem I see with copyright is that the creators don’t own the copyright in most of the actioned cases, it is just some speculator trying to make easy money. The men at work are being sued by somebody who bought the copyright after the death of the author. Vulture.
Heathdon McGregor
August 3, 2009 at 4:42 pmsorry forgot to spellcheck