Copyright in music is a very topical issue against the backdrop of the music industry losing money at a terrifying pace and moves to extend the duration of musical copyright beyond 50 years to allow artists such as Cliff Richard to continue making royalties from their earliest work, and it is about to be brought into the public eye again in the wake of what could be a landmark case on the ownership of copyright in one of the most played pop songs of all time – Procul Harum’s “A Whiter Shade Of Pale”.
The song was first released in 1967 to immediate critical and commercial success and has been covered over 800 times is perhaps best known for its surreal lyrics and signature Hammond Organ melody, which are two of the main sticking points in the hearing taking place today at the House of Lords. The hearing is the latest development in the claim against Gary Brooker, Procul Harum’s lead singer and lyricist and Matthew Fisher, the band’s keyboard player who claims that he wrote the main melody of the song and as such is entitled to a share of its copyright. This is the first time that the House of Lords has been asked to been asked to decide who owns the copyright in a pop song.
Fisher’s case began in 2005, with the Court originally ruling that he had made a “significant contribution” to the song was in fact a 40% joint composer long with Brooker, meaning that he was entitled to a considerable share of the huge amount of royalties generated since its release. However, the Court of Appeal overturned this ruling last year on the basis that it had taken Fisher nearly 40 years to bring his claim to Court and not taking any action against Brooker in the meantime. Fisher, on the other hand, claims that he spent the intervening period meeting with Solicitors, all of whom told him he stood no chance of successfully claiming for back royalties on the song until 2002, when a case involving the Bluebells Hit “Young At Heart” changed the legal landscape by awarding Robert Beckingham, who came up with that song’s iconic Violin melody, a share in the copyright of the hugely successful song on the basis that he had made a similar “significant contribution”.
“The Lords are dealing with an issue which is potentially huge for the music industry, and could set a very dangerous precedent. The normal rule is that whoever composes a song becomes the owner of the copyright in it. However, many songs tend to be written in jam sessions with input from more than one musician, and sometimes from session musicians who aren’t members of the band. Fisher eventually left Procul Harum, who have always claimed that he was happy for his distinctive organ riff to be used on the song.
What’s interesting is that Fisher’s melody was itself inspired by Bach’s Air on a G String, but is still arguably the most recognisable element of the song. Over the past few years, the Courts have dealt with a number of cases where session musicians who are only expected to come into a studio, contribute to a recording and leave after being paid their session fee have successfully claimed a share in the final song’s copyright and have been awarded substantial damages to cover the royalties they would have made had they been credited as a composer when it was released.
Artists will probably now be looking over their shoulder, especially if the most distinctive parts of their most popular songs were created by session musicians who now feel as if they never got the recognition they deserved. Musical copyright is big business as songs can be sold over a much greater number of formats than at any time over the past 50 years, such as MP3s – Coldplay are currently involved in a case brought by Joe Satriani over the copyright in “Viva La Vida”, and the Verve famously lost pretty much all of the money they ever made on “Bittersweet Symphony” to the Rolling Stones, who came up with the melody line around which the song was based.
Brooker has always claimed that Fisher always appeared to be happy with the arrangement he made with Procul Harum, but it looks as if the Lords are going to have the final say. The lesson for any artist here has to be to sign a contract with any session musicians you use to ensure that you have set out any arrangement on copyright and royalties in the final song. The vast majority of modern artists will be well aware of the risks, but we could see a great number of cases over older songs flooding the Courts.”