In the January 6th Wall Street Journal, Terry Teachout raised a couple interesting points about “intellectual property”. One point especially has some direct bearing on composers and performances of their work:
Last month a London judge awarded 40% of the copyright of Procol Harum’s “A Whiter Shade of Pale” to Matthew Fisher, the group’s ex-organist. Mr. Fisher, who had asked for 50%, doesn’t claim to have written the song, but he did write the Bach-like organ countermelody heard on the group’s 1967 recording of “A Whiter Shade of Pale,” which sold 10 million copies. Judge William Blackburne called the countermelody “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.”
…anyone familiar with Procol Harum’s recording would be likely to agree that Mr. Fisher’s countermelody is an integral part of the song.
Here’s the problem: Where do you draw the line separating creative performance from actual authorship? Yes, Phil Woods’s coruscating alto saxophone solo on Billy Joel’s “Just the Way You Are” is one of that song’s most memorable features — but does that fact entitle Mr. Woods to a share of the royalties that are paid to Mr. Joel for having written the song?
And, a few more questions:
1) In works with indeterminate or improvisatory elements, could the performer begin to claim some share of actual authorship royalties for their realization of your piece?
2) Could another performer be found guilty of infringement, if their own performance was deemed somehow too similar to a previous performer’s realization of your piece?
3) If yes, and taking the issue to its logical extreme, might the interpretation of even a “fully-notated” (bearing in mind that there’s in reality no such thing) piece of yours be deemed the performers “property”? That they could end up “owning” that little attack, portamento or ritard?