The disharmony surrounding a famous pop song shows how complex the relationship between copyright and creativity can be
(copyright image - see below)
When Procol Harum played their hit song A Whiter Shade of Pale on TV show ‘Top of the Pops’ in 1967, the organist Matthew Fisher was shrouded in a monk’s robe and cowl – with only his hands on the keyboard visible.
While the costume was nothing more than an attention-grabbing gimmick, with hindsight Fisher may feel it perfectly summed up how his importance to the band was concealed.
It’s impossible to think of the song without hearing his distinctive, haunting organ introduction, but Fisher received no song-writing credit and therefore no share in the millions of pounds in royalties which the number one hit brought flooding in.
And so – almost 40 years after that TV appearance – Fisher took his legal case to be recognized as owning a share of the song’s copyright to court, pitting him against his former band-mate and song-writer Gary Brooker.
For Dr Luke McDonagh, a fellow in LSE’s Department of Law, the story is more than just a curiosity in the history of pop – it illustrates how copyright law is interpreted and enforced very differently across creative industries.
While pop stars, software designers, authors, playwrights and folk musicians (among others) all have legal rights to assert their ownership of a piece of work, there may often be very good reasons why they choose not to.
As an example, McDonagh studied the traditional Irish music scene to find out how artists viewed their rights as composers and performers.
The answer, he discovered, is that they are much less likely to take assert those rights: “They are aware of copyright but there is a share ethic among Irish traditional musicians. That’s the way the music has been passed down from one generation to the next, that’s the way they learn – by sharing tunes and playing each other’s different versions.
“Although originals and arrangements are technically in copyright, the authors are relaxed about this because the number one thing they want is for their music to be accepted as part of the tradition. The lawyers are very much in the background, and that’s exactly the way the musicians like it.
“The one exception is where a commercial entity is making a use of a tune, then musicians are willing to claim rightful compensation for that. So it’s an informal system but they don’t want copyright to disappear.”
It’s an approach which authors of computer software take one step further, not only allowing others to use their work but licensing it as open source software for anyone to work with and develop.
Dr McDonagh says: “In any area where you have vibrant collaborative creativity you are going to find the rules of copyright don’t work as well as they do when you have a single author creating a single work. Creative people find ways of taking a step back from copyright and allowing the freedom to create to bloom.”
Original and substantial
In the legal battle between Matthew Fisher and Procol Harum’s main songwriter Gary Brooker the question of single authorship was central. While Brooker had written the basic melody of A Whiter Shade of Pale and recorded a demo, Fisher added his famous improvised organ sequence in the recording studio and it was this version of the work which was released.
The courts considering Fisher’s claim had to decide whether his musical contribution was both original and substantial enough to make the joint arrangement of the initial song a different work, with its own copyright protection.
The case went to the High Court and in 2006 the Court of Appeal, which found in Fisher’s favour and upheld his right to claim a share of all future royalties on the work. Dr McDonagh explained: “There was a very clear distinction in this case between the composition and the musical arrangement – which in this case was the final released version. That was the version to which Matthew Fisher had added the organ part. The court was satisfied that he was a joint author of this arrangement though not of the original composition.”
Now McDonagh has extended his research into the world of theatre to examine how authors, directors and actors approach the vexed question of copyright.
At first glance it might seem that a playwright is the sole author of a work – yet the position is not that simple. Most plays are produced through a collaborative process of workshops, in which a director and actors will run through a rough script and suggest changes – fleshing out some characters, dropping others, inserting scenes or deleting them.
Dr McDonagh said: “The creativity that goes on in theatre is impossible without collaboration. Copyright tends to reward the writer but I wanted to investigate whether that is the correct way of giving authorship.
“There’s a general respect for the role of the writer amongst theatre directors. The economics of theatre are that a director may have a salaried position while a writer is likely to be freelance so the copyright is seen as a reward for the playwright. However, some directors have said with certain projects where they’ve had a large input and a play has gone on to become successful they may think twice about whether they should be given some share in the royalties.”
Meanwhile McDonagh has some advice for any creative types undertaking a joint project – put your working relationship in writing now: “It is a slightly boring thing to say but it can prevent these kinds of difficulties cropping up decades later.”
Listen to Dr McDonagh on this story – from the LSE podcast Causes & Things. Or download the item.
posted July 2012
For more details of Dr McDonagh’s research see his profile on:
LSE experts directory
Luke McDonagh’s personal website
Rearranging the Roles of the Performer and the Composer in the Music Industry – The Potential Significance of Fisher v. Brooker
Examining the Hargreaves Review of Intellectual Property – post on the Kluwer Copyright Blog
Cover image of the single 'A Whiter Shade of Pale' by Procol Harum is copyright. Its non-commercial reproduction here is to illustrate reseach, understood as a fair use under the UK Copyright, Designs and Patents Act 1988.