Shall we skip the light fandango, m'lud?

Pete Paphides, The Times • 24 November 2006

With the Procol Harum verdict imminent, Pete Paphides walks the often fractious line between collaboration and co-composition

Why do milkmen whistle? “Good question,” says Kevin Pierce. “It keeps us awake on dark winter mornings.”

This being one such morning, it isn’t hard to see where Pierce, recently crowned Dairy Crest 2006 Milkman of the Year, is coming from. The reason for our exchange is that a theory needs testing. In music industry circles, anyone assessing the hit potential of a tune has always asked whether the milkman can whistle it. That Procol Harum’s A Whiter Shade of Pale is one such tune is beyond doubt. But what will Pierce whistle when I ask him to give me a burst of the song in question? He purses his lips and trills the Hammond organ motif that ushers in Gary Brooker’s vocal.

If this was how hotly contended disputes over authorship were resolved, this morning Procol Harum’s former keyboard player Matthew Fisher would be doing something other than travelling from his home in Croydon to the Royal Courts of Justice, where summing-up begins in his claim that he came up with the Hammond hook.

But if Fisher had such a pivotal role in the creation of A Whiter Shade of Pale, why didn’t he contest the case in the decades since it was a hit? It might be that in previous years it was simply too much of a risk. Before 2000 he would have been faced with one of two choices: either to finance the lawsuit himself or pursue it with the help of legal aid, which as he told the court he was unable to get. In recent years, however, the law has changed. New legislation has shifted the emphasis away from legal aid towards a free-market solution. If they can find a lawyer who deems their case strong enough, musicians making copyright claims can do so on a no-win, no-fee basis.

A Whiter Shade of Pale is one of the first songs to come under High-Court scrutiny since 2003, when the violinist Bobby Valentino took the Bluebells’ guitarist and songwriter Robert Hodgens to court over Young at Heart, the Bluebells song that reached No 1 after it was used in a Volkswagen advert.

Valentino’s victory prompted the industry solicitors Michael Simkins to give warning of the precedent set by it. “There will be more of these claims,” the law firm said, “so music publishers beware. The only way to head off claims by session musicians is to obtain appropriate clearance documentation (at the time the recording is made).”

In other words, publishing companies need to ensure that, ideally, guesting musicians sign away their share of the copyright of a song before they play a note on it.

But at what point does a contribution to a song influence it so much that it effectively turns it into a collaboration? What attracts people to Eric Clapton’s Layla if it isn’t the seven-note hook that (the uncredited) Duane Allman came up with? Steve Nieve’s Abba-esque plinking sprinkled magic dust on Oliver’s Army — a song that, up until then, Elvis Costello was apparently considering for use on a B-side. And yet the song is credited to Costello alone.

Still, Nieve comes off well compared with Lindisfarne’s Ray Jackson, who claims he came up with the mandolin part on Rod Stewart’s Maggie May only to receive £15 and an album sleeve credit that read: “The mandolin was played by the mandolin player in Lindisfarne. The name slips my mind.”

Then, of course, there’s Baker Street. Raphael Ravenscroft will comfortably be outlived by the saxophone hook he played on Gerry Rafferty’s biggest hit — but his name is nowhere on the writing credits. Rafferty’s own position is outlined in the liner notes of his Greatest Hits CD, Right Down the Line, which claim that Ravenscroft was merely playing a hook that Rafferty had written for him.

Tracking down Ravenscroft for his recollections of the session is by no means straightforward. It turns out that the saxophonist is on a pilgrimage from northern France to Santiago de Compostela. Baker Street, he claims, came together when Rafferty presented him with a song that contained “several gaps”. What, then, does he think of the claim in the liner notes? “Well, Gerry pushed most of his friends away a long time ago. If you’ re asking me, ‘Did Gerry hand me a piece of music to play?’ then no, he didn’t. In fact, most of what I played was an old blues riff.”

After Ravenscroft recorded his part, he received a cheque for £27, which he claims bounced. The cheque was framed and now hangs on his solicitor’s wall. “I’m sure Gerry’s lawyers have been waiting for me to shoot them since day one,” he adds. “But that’s not what I’m about. If I had received pots of money at that age Baker Street, I wouldn’t have known what to do. It might have destroyed me.”

Relay the saxophonist’s Zen rationalisation of his work to Columbia Records’ MD and a smile spreads to a slow nod. Broadly speaking, Mike Smith’s position is that human decency can go a long way towards forestalling disputes. “In the music industry,” he says, “it really is a case of what goes around comes around.”

Before his current job, Smith spent two decades as a music publisher at EMI. One of the acts he nurtured was Blur. “Damon Albarn always came up with the basic idea for a song, but right from the beginning he acknowledged the band’s contributions by splitting the royalties four ways. That was central to his notion of what Blur meant as a band. Interestingly, he’s continued to do that with Gorillaz, which ensures you get a level of commitment from someone such as (the illustrator) Jamie Hewlett that you might not otherwise get. It becomes a proper band rather than a singer and some session musicians.”

Where bands are concerned, this way of working seems to ensure a degree of longevity. Take, for instance, Radiohead. What else could have kept the other members of Radiohead on board throughout the panic attacks, depressions and ceaseless experimentation that besieged Thom Yorke during the making of Kid A and Amnesiac? Was it that they enjoyed long afternoons of dominoes while Yorke sat in a nearby room trying to mate with a laptop? Or could it be that, at the end of even the most frustrating weeks, their faith was formalised in a stream of revenue that was split five ways? Spandau Ballet didn’t chronicle the strange sense of existential dread that comes as standard on Radiohead albums. Nonetheless, the arrangement between their five members and those of Radiohead bore some similarities — the whole band enjoyed a share of Gary Kemp’s songwriting royalties. After the band’s dissolution, however, the payments stopped. Three members of the band subsequently sued Kemp — among them the saxophonist Steve Norman, who contended that his solo on True amounted to a co-composition.
Gary Kemp was vindicated in court. This delights Britain’s best milkman. Asked to whistle a burst of True, Pierce opts for the first line of the song, adding, “I can’t remember how the saxophone goes in that one.”

Even if you start out as best friends and split your royalties in perpetuity, the outcome isn’t always harmonious. Feeling that John Lennon was unfairly venerated as the cooler, edgier Beatle, Paul McCartney went to the trouble of collaborating with Barry Miles on the book Many Years From Now, in which Macca detailed what he did on almost every song credited to him and Lennon.

Whether session musician or superstar, the same details resonate when musicians squabble over royalties. The former Bluebells singer Ken McCluskey says that what’s at issue here is recognition. As a music business lecturer at Stow College in Glasgow, McCluskey now specialises in alerting music industry hopefuls to the pitfalls that may lie ahead. “It was Bobby Valentino’s fiddle part that got used on the 1993 ad which prompted the reissue,” he recalls, “so I think he just wanted a wee pay-out by way of acknowledgement. But Robert (Hodgens, who wrote the song) didn’t see it that way. I don’t think it hurts to just settle it quickly before it goes to court.”

Ravenscroft echoes the sentiment. “All those guys in Procol Harum are doing is handing cash to lawyers, when being gentlemanly would preclude all of that. It should have never got to this stage.”

But it has. Heaven knows what a whiter shade of pale looks like. But watch the faces of the former members of Procol Harum as the verdict is delivered and there’s every chance you’ll find out.