Music nerds may remember with fondness the great copyright wrangle involving Procul Harum and Bach. The focus of that dispute was the organ line in the 1967 hit Whiter Shade of Pale, and Blackburne J’s judgment is imperative reading for anyone interested in the law’s dominion over music, ideas or intellectual property in general. Go to the end of this post for a reminder of that entertaining litigation and its outcome.
Less esoteric but potentially as interesting is this application brought before Carr J in the Chancery Division by the “well known music band”, the Boomtown Rats.
Mr Moylett (Johnnie Fingers), the keyboardist, claimed that in 1979 he had written the music and some of the lyrics for the band’s hit song I Don’t Like Mondays. Bob Geldof, who wrote the remaining lyrics, claimed sole writing credit. A significant issue was whether the music was more likely to have been composed on a guitar, which would support Mr Geldof’s claim to have composed it, or whether it could only have been composed on a piano, which was Mr Moylett’s case. The keyboardist sought to rely on an expert report from a composer, who had asked two leading professional guitarists to play the music for him.
The application was made to the court to exclude those parts of the report that contained opinions from the professional guitarists. Mr Geldof (the guitarist composer) argued that the report went beyond what was permissible by expressing an opinion on the ultimate question in the proceedings.
The judge refused the application . The authority on this question was Rogers v Hoyle  EWHC 1409 (QB) which said that rather than picking through an expert’s report and seeking to excise paragraphs, it was preferable to allow the trial judge to consider the report in its entirety and for the trial judge to attach such weight as he or she saw fit. Insofar as the report dealt with whether the music was more likely to have been composed on a guitar or a piano it was admissible evidence and might well be the subject of expert evidence in reply.
If the case comes to trial, the evidence will be fascinating. How might a piece of music lend itself to composition on one instrument rather than another? Now, as promised, a reminder of the Whiter Shade of Pale dispute (Fisher v Brooker and Another .
The question here was whether the organist’s famous line was so imaginative a working on Bach’s Wachet Auf and Air on a G String that he could claim fresh copyright on the material. Have fun reading that case again (particularly from paras 36), and just in case you don’t want to traverse the whole thing, here’s a reminder:
The working in of this reference to Wachet Auf led to Mr Fisher [the organist] making, he said, a small alteration to the bass line in bar 8, namely the substitution of a root position G chord for a bass C on the first beat of the eighth bar and the substitution of two first- inversion chords, F and G7, in place of a bottom G in the second half of the eighth bar.
Mr Fisher won the case, incidentally, because the judge found that his organ introduction was sufficiently different to qualify in law, as an “original contribution to the work.”