COPYRIGHT 
Artists, music publishing 

A Whiter Shade Of Pale, The Procul Harum hit which has generated £6 million in British radio, club and jukebox plays and was named the most-played record of the past 70 years in 2004, is to become the centre of a million-pound royalties dispute to be heard at the High Court in London. Released in 1967, the song became a global smash, selling 10 million copies. It is still used in advertisements and regularly features in “greatest song of all time” polls. The song has always been credited to Gary Brooker, Procol Harum’s frontman, and lyricist Keith Reid. Now almost 40 years on, Matthew Fisher, the band’s classically trained organist and now a computer programer, claims that the song’s signature winding melody line was his work. The dispute is more complicated because all sides agree that Johann Sebastian Bach originally inspired the song’s mournful melody.  Brooker first wrote the song as a straight R&B tune, based on Bach’s Airfrom the Orchestral Suite No 3 in D (or Air on a G String), which he had heard on a Hamlet cigar advertisement, and the composer’s Cantata No 140, known as Sleepers Awake. With Bob Dylan’s records then popularising the Hammond organ sound, the band called on Fisher to embellish the track, but the organist argues that his contribution was far greater. Musicologists supporting Fisher will tell the court that he transformed the organ melody into something far superior to the chord structure that Brooker borrowed from Bach and that his organ melody includes lines running in counterpoint to the vocal melody and also the memorable eight-bar solo that appears between verses and that he transformed the tempo and rhythm of the cantata “lift”, cleverly disguising its classical source. Brooker, who strongly contests the claim, concedes that Fisher, who left the band in 1969, “refined” the song’s use of Bach. But Brooker believes he created an original melody before Fisher even joined the band and questions why it has taken the organist 40 years to bring the caim.  Fisher, 60, has hired Jens Hill & Co, the company that represented Pete Best when the axed Beatles drummer successfully sued his former bandmates for royalties. Brooker, 61, has engaged Harbottle & Lewis. This is an interesting area of law and Blackburne J (who studies law and music at Cambridge) could give an interesting judgment on what does and does not constitute songwriting for the purposes of authorship under the Copyright Designs & Patents Act 1988. A keyboard will be installed in the court.

Previous case law isn’t that helpful: Tony Hadley and other members of Spandau Ballet lost their claim against fellow member Gary Kemp over a share of songwriting royalties for their efforts in ‘arrranging’ the band’s songs and Aston Barrett recently lost his claim to have co-written Wailer’s tracks with Bob Marley: In the Spandau Ballet case Park J said that “there is a vital distinction between composition or creation of a musical work on one hand and performance and interpretation on the other. But fiddle player Bobby Valentino did succeed in his High Court claim for co-authorship for writing (as well as performing) the distinctive violin part in The Bluebell’s song and recording of ‘Young at Heart’ which was held to be a significant and original contribution (confirmed at the Court of Appeal). Clare Torry recently won an undisclosed sum for providing the vocal lines for Pink Floyd’s The Great Gig In The Sky, one of the songs on Dark Side Of The Moon?. In  Hyperion Records v Sawkins (2004) EWHC 1530 (Ch) Patten J held that copyright subsisted in the ‘edition’ version of a public domain work based on the work of 18th century French composer Lalande and ‘recreated’ by Dr Sawkins – even though no significant changes were made to the melody created by Lalande.

See Archive Music Law Updates April 2005, June 2005 and August 2004

Wood v Boosey (1868) LR 3 QB 33

Redwood Music v Chappell (1982) RPC 109

Aston Barrett v Universal-Island Records and Others [2006] EWHC 1009 (Ch)

Hadley and Others v Kemp and Another (1999) EMLR 589

Beckingham v Hodgens (2003)  Court of Appeal, 19 February 2003  (Bobby Valentino) seehttp://www.swanturton.com/ebulletins/archive/DAFValentino.aspx

and see http://www.musictank.co.uk/events_creative_collaborations.htmhttp://www.timesonline.co.uk/article/0,,2-2446338,00.html