A judge in London today said yes, as the court awarded a 40% share on the song's royalties (dating from May 2006 on) to former Procol Harum organist Matthew Fisher
The judge said the song's organ solo "is a distinctive and significant contribution to the overall composition and quite obviously the product of skill and labor on the part of the person who created it."
Yeah, no doubt. Bully for him. But the tricky thing about this ruling is that it leaves the doors open for musicians who are not a song's writers to claim that their performance on a song's recording is substantial to the success of the song and deserves to be part of the copyright.
In case you're not familiar, here's the scoop. Songwriters don't write pop songs the way classical composers typically wrote symphonies, where every part was composed down to the last sixteenth note. Nowadays, the lyrics, the vocal melody, the underlying chord progression, and usually a characteristic riff or two (such as a "turnaround" to move between song sections) are all that most writers produce. Depending on the genre, you can either add or remove an element or two from that list. But it'd be rare in any contemporary genre to enter the studio with parts fully composed from start to finish -- other than the vocals, and even there some embellishment is expected most of the time. That's what session musicians do; they take what's written and further interpret the song on their instruments -- and all without co-writing credit.
In this case, a very strong case can be -- and obviously was -- made that the organ part on "Whiter Shade" is critical to the composition of the song. But what performances merit that assessment and which ones are just musicians clocking in and doing their jobs? It's a weird slippery slope.
On one hand, I know that a lot of session players are grossly underpaid for the staggering skill they bring to the recording process. If you want to see an example, check out Standing In The Shadows Of Motown
. Along with Berry Gordy, Jr.
, and the other songwriters and producers behind the scenes, the Funk Brothers were so much of the sound of Motown, and they made chump change for pay.
While situations like that clearly need to improve, I stand with the NSAI motto
here: it all begins with a song. If it weren't for the song's writers, no one would be making any money on the song. They're the originators of the idea; they're the creative force that sets the process in motion; at the risk of sounding biased, I think they deserve significant incentive to continue to create.
So while they come off a bit alarmist, I mostly agree with Brooker and Reid's quote at the end of the article: it is
a dangerous precedent, from the perspective of protecting a songwriter's livelihood.
Before I even begin, I'll give him this: I think the organ part in "A Whiter Shade of Pale" is fantastic -- key to the success of the song, no doubt. Key to the emotional weight and message of the song. But is it songwriting? Does the organist deserve to be credited on the copyright?