The Truth Is Plain To See

by Robert Lopresti

A couple of warnings: I am not a English copyright attorney.  (I'm sure that astonishes you.)  And I am discussing a court case that could easily fill a book.  So take this for what it is worth.  You can read more about it here and here.

Do you remember "A Whiter Shade of Pale?"   It was a huge hit for Procol Harum in 1967, and is one of the most played and recorded songs of all time (almost 1,000 covers).  Can you call up the tune to memory?  If not, try this:

Most people I have talked to, if they remember it at all, remember that ethereal organ part.  And that is what we are here to discuss (don't worry; it will connect to the subject of this blog eventually.)

According to 40 years of labels and liner notes, Pale was written by two members of the band: Gary Brooker (piano and vocals)  and Keith Reid (lyricist).

But neither one of them was responsible for  that famous organ part. That was Matthew Fisher who played Hammond organ in the band.  He stayed with the group for three albums and then split.  His first solo record included a number with the refrain "Please don't make me play that song again."  What could he have been referring to, I wonder?

He rejoined the band when it reformed in the 1990s, but quit in 2004 and filed  a lawsuit, asking to be recognized of co-creator and co-owner of Pale.  (It turns out that this was not the first time someone threatened to sue over this ditty, by the way: "Where there's a hit, there's a writ.")   After Fisher's case bounced from venue to venue the highest court in England, namely the Law Lords (sounds like a rock band, doesn't it?) got to make their first ever ruling on a copyright case involving a song.  (It turned out to be that court's last decision as well, being then replaced by a Supreme Court.)

So what does it mean if Fisher were to win?  According to his opponent, Gary Brooker: "Any musician who has ever played on any recording in the last 40 years may now have a potential claim to joint authorship.  It is effectively open season on the songwriter."

A strong argument.  But I felt there had to be some reasonable middle ground between "Joe went twang on the chorus so he's entitled to ten percent" on  the one hand, and on the other "the composer of the most famous organ solo in pop music contributed nothing to the  song."  And sure enough, the Law Lords, clever folks that they are,  agreed with me.

They ruled that Fisher should have a credit and 40% of the music royalties, starting with the day he filed the suit.  He gets nothing for the years before he went to court, which seems reasonable.

So what does that have to  with the subject of this blog?  Glad you asked.  Before I send a story to an editor I first send it to R.T. Lawton.  He does the same with me.  We read the stories, make suggestions and corrections and generally help each other's literature inch ever closer to perfection.

But we don't get paid for that.  At what point does a helpful first reader become a co-author?

When I sent my story "Street of the Dead House" to the anthology nEvermore! the editors, Nancy Kilpatrick and Caro Sole, made significant suggestions that improved the tale.  Without them would my tale have been selected for two Best of the Year collections? 

I don't know.

Did they get a share of the reprint money?

That I know.  They didn't.

But I think editors are a special case, somewhat like record producers.  They get their appropriate fee but don't expect a writing credit.

Speaking of books, I revised this piece after discovering Procol Harum: The Ghosts of A Whiter Shade of Pale by Henry Scott-Irvine.  He makes it clear that the story is even more complicated than I thought.  Any fan of the band should read the whole book.  Anyone interested in copyright issues should at least read the last two chapters.

I want to give the last word to Chris Copping. Copping replaced Fisher in the band in the 1970s which means he probably played that organ part more than anyone else alive.  He perhaps has a less romantic view of that melody than most of us.

In this essay he discusses joining Procol Harum and then analyzes the song virtually note for note, explaining what he thinks Fisher created and what he borrowed from Bach.

His conclusion on what Fisher is owed? "Let him have the ring tones."