Thursday, December 21, 2006

Nice Solo, See You in Court

You shouldn’t need a J.D. if you want a career in music, but sometimes it wouldn’t hurt. For Exhibit A look to Procol Harem’s legal family feud playing out in the courts. The A.P. reports (oddly without comment from Capt. Jamil Hussein) that organist Matthew Fisher has won a 40 percent stake in the band’s monster hit “A Whiter Shade of Pale,” based on his organ solo. Gary Brooker, the lead singer claims he wrote the song with Keith Reid before Fisher joined the band. They naturally, are less than thrilled. The A.P. quotes their statement:

“It is effectively open season on the songwriter,” they said. “It will mean that unless all musicians’ parts are written for them, no publisher or songwriter will be able to risk making a recording for fear of a possible claim of songwriting credit.”

It might seem reasonable to give Fisher compensation for creating the distinctive organ intro because it has been an indispensable part of the entire song, but it wouldn’t be surprising to see this reversed on appeal. After all, will courts want to see the door opened up for a slew of cases from instrumental soloists seeking co-ownership of the songs they played on? For instance, Sonny Rollins could sue the Rolling Stones for a piece of “Waiting on a Friend.” They definitely have some deep pockets there.

This actually runs contrary to recent court rulings in America that deny composer rights to any music not explicitly notated. This was the crux of the ruling against avant-garde jazz flutist James Newton’s suit against the Beastie Boys for sampling a three note excerpt from his song “Choir” without his permission. The sample utilized multiphonics, which by their nature defy notation. U.S. District Court Judge Nora Manella wasn’t interested in that, and ruled that the three notes that could actually be notated were not in themselves sufficiently original to be legally considered a composition. Therefore, since Newton’s record label had cleared the recording rights (without asking his permission) there were no additional composer rights for the Beasties to clear. (Obviously, this begged the question, if the multiphonic clip from “Choir” wasn't original, why would the Beastie Boys bother sampling it?)

Jazz improvisation has consistently challenged conventional notions of composition. Surely, there is a logical middle ground between these two rulings, where composers can retain the rights to their songs, regardless of the degree of notation involved.

Just for the record, who do you think appointed Manella to the Federal bench? Why yes, that champion of jazz himself, Bill Clinton. Manella, a longtime Feinstein associate, is now a CA State Appellate Judge courtesy of supposed Republican Governor Schwarzenegger. However, jazz musicians and composers will be dealing with the impact of her ruling here in America for years to come.