TMFW 77 - Tales of Copyright Silliness, Vol. 2 - A Bittersweet Screwjob

Today's title belatedly establishes that this week's entry is the second in a series.  The first "tale of copyright silliness" came in TMFW 10, when I recounted the story of a lawsuit against Men at Work for using two bars of the 1934 campfire song "Kookaburra Sits in the Old Gum Tree" in their song "Down Under."  Looking at my TMFW story queue, there are at least two more copyright entries coming, so I thought it wise to start this series. 

Today's TMFW is about the copyright fight that The Verve faced when their song "Bittersweet Symphony" stormed onto the charts in 1997.  Most people who know that song are vaguely aware that the band lost a copyright claim to the Rolling Stones; before I learned the whole story I had heard that The Verve "ripped off" the orchestral backing on "Bittersweet Symphony" and "got caught" by the Rolling Stones.  But the truth is almost the complete opposite.  The Verve got screwed 100%, and then some.  Buckle in, as there are a number of twists and turns to this week's entry.

To get the whole story, we must start in the 1800s, with African American spirituals (really!).  One classic spiritual was called "This May Be the Last Time."  The core lyrics were simple:

This may be the last time
This may be the last time, children
This may be the last time
May be the last time I don't know

As the song was passed down and carried forward into the 20th century, a gospel version was recorded in 1955 by The Staple Singers.  A different adaptation (called "Maybe the Last Time") was recorded by James Brown in 1964.  And the traditional hymn became a "freedom song" during the civil rights movement in the early 1960s.

Against that backdrop, in 1965 the Rolling Stones recorded the song "The Last Time."  The refrain was familiar:

Well this could be the last time
This could be the last time
May be the last time I don't know

"The Last Time" was the first Rolling Stones single that was written by Mick Jagger and Keith Richards, but as demonstrated above it's hard to say that it was fully "written" by them.  It is more accurate to say that the band appropriated a spiritual and built some verses and a (admittedly catchy) riff around it.  Either way, Richards/Jagger are the listed songwriters, and the record was a hit.  It spent three weeks at #1 on the UK charts.

The same year that the Rolling Stones recorded "The Last Time," the Andrew Oldham Orchestra made and released a record called Rolling Stones Songbook.  Andrew Oldham was at that time the manager and a producer for the Rolling Stones, and his "Orchestra" was in fact just a side project where he collected session musicians to play instrumentals.  One of the songs on Rolling Stones Songbook was an instrumental of "The Last Time."  Though that version is significantly different than the Rolling Stones' song, and was adapted by the well-known English composer David Whitaker, songwriting and copyright credit for the instrumental stayed entirely with Mick Jagger and Keith Richards.

So as of 1965, Jagger and Richards had songwriting credit and copyright on "The Last Time" and on Oldham's/Whitaker's instrumental version, too.  But right around that time, Oldham and the Rolling Stones started working with Allen Klein.  Klein had made a name for himself in the music business by fighting record labels for artist royalties, and most famously he made a deal for Sam Cooke that was at the time one of the most artist-friendly in history.  Klein and Oldham co-managed the group for a short time, and then in 1966 Klein bought Oldham out and became the Stones' sole manager. 

Klein had a reputation for being a blunt, tenacious negotiator.  He allegedly had a placard on his desk that read "Though I walk in the shadow of the valley of evil, I have no fear, as I am the biggest bastard in the valley."  And with the Rolling Stones, he proved that to be true.  Though opinions differ on this point, the Rolling Stones allege that while Klein was their manager he tricked them into signing over all of the rights to their songs to a company that Klein owned called American Nanker Phelge Ltd.  That name is significant because, as Keith Richards writes in his autobiography, "we had a company in the UK called Nanker Phelge Music, which was a company we all shared in. So we get to New York and sign this deal to a company into which everything is to be channeled henceforth, also called Nanker Phelge, which we presume is our same company with an American name... Of course after a while we discovered that Klein's company in America bore no relation to Nanker Phelge UK and was wholly owned by Klein."  When the Rolling Stones' relationship with Klein finally reached a breaking point in 1971, the band sued him for fraud.  The case went through the legal system for more than a decade, and eventually the band settled it and Klein's record company ABKCO ended up with the rights to their entire pre-1971 catalog, which included the band's biggest hits and Oldham's instrumental record.  He was the biggest bastard in the valley, indeed.

More than 10 years after all of that backstory, which was settled by 1984, and more than 30 years after "The Last Time" was released, Richard Ashcroft from The Verve took inspiration from Oldham's/Whitaker's instrumental and wrote "Bittersweet Symphony." (In fact, an early demo of the song is Ashcroft singing over Oldham's track.) Ashcroft wrote the lyrics and the vocal melody, and the group wrote the violin "riff" that opens the track and is the focal point of the song.  Although the group overwhelmingly authored their song- they put "nearly 50 tracks" of their own on the record - because they used a piece of the orchestral version of "The Last Time," they needed to clear the sample prior to releasing the record.  The band did just that, and according to Ashcroft they agreed with Klein on a 50/50 split. 

But after the record came out and became a huge hit, Klein was not satisfied with the deal, and he brought suit against the band alleging (a) that the band used more of Oldham's song than they were licensed for, and alternatively (b) that Oldham's song was so fundamental to the finished track as to make it a copyright violation overall.  No doubt aware of Klein's 13-year fight with the Rolling Stones, and of his well-earned reputation as a bad guy, the band settled the suit by handing over 100% of the publishing rights and other royalties to Klein and by making Mick Jagger and Keith Richards co-writers on the track. 

Having given over most of the value and control of their song to Klein, Mick Jagger, and Keith Richards, the popularity of the track became bittersweet for the band.  They did not want it used in commercials, but reluctantly agreed to let Nike base a commercial around it because they knew that Klein could simply license the song directly and have a "sound-alike" copy used.  In an Opel car ad, that's exactly what happened.

So that's your TMFW for today.  It's a classic story of (1) an African American spiritual that (2) inspired gospel covers and (3) influenced the civil rights movement, then (4) got ripped off by a British rock band and (5) was turned into an instrumental that barely resembles the original by that band's producer and a famous composer, which then (6) got hijacked by a shady manager who hoodwinked the band into signing over the rights and then fought them in court for 13 years to keep them, and (7) was incorporated into a song 30 years later, which (8) lead to a lawsuit where the shady manager prevailed again, and then (9) he commercialized the crap out of it and got rich(er).  There is no justice in the world.

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BONUS FACT:  The "Bittersweet Symphony" video, in which Ashcroft walks defiantly down the street singing the track, became iconic when it was released in 1997.  The next year, a British artist called "Fat Les" brilliantly spoofed it for his England-supporting World Cup soccer anthem "Vindaloo."  Both that song and its video are excellent.

BONUS FACT 2:  During the Chicago stop of last year's Reflektor tour, the Canadian indie band Arcade Fire brought out Mavis Staples of The Staple Singers to perform a cover of her group's version of "This May Be Last Time," which then segued right into The Rolling Stones' song.  It was pretty cool.

BONUS FACT 3: Adding salt to The Verve's wound, after their suit with Klein was settled, Andrew Oldham sued the band as well, alleging a right to mechanical royalties for the use of his recording.

BIBLIOGRAPHY:  Inspiration for the structure of today's post came from a 2009 post on Ethan Hein's blog that I found during my research.  His archives are a treasure trove of good stuff. 

TMFW 76 - Lesley Gore Beats The Crystals to the Party

On Monday of this week, pop singer Lesley Gore died.  Gore was most famous for being the seventeen-year-old singer of "It's My Party," which was her first record and which was a number one song for two weeks in 1963.  Today's TMFW is about the recording and release of that song.  But first, a detour to appreciate the rest of Lesley Gore's career is in order.

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Three of Gore's early hits were songs about slavish devotion to boyfriends.  "It's My Party" (#1 for two weeks) laments that the singer's boyfriend Johnny gave his ring to Judy, which was enough to ruin the singer's party.  "Judy's Turn to Cry" (peak position #5) celebrates revenge over Judy.  This is accomplished when the singer "kissed some other guy" to make Johnny jealous, which caused him to punch out the other fellow, leave Judy, and reunite with the singer.  And in "Maybe I Know" (peak position #14), the singer acknowledges that her boyfriend is cheating on her, but she asks repeatedly "what can I do" and she turns a blind eye in the hopes that "some day he'll settle down."

Despite that career beginning, Gore went on to become somewhat of a feminist icon.  Even as she was recording and releasing music regularly, Gore stayed in high school and then went to Sarah Lawrence College, from where she graduated in 1968.  And in the midst of those songs above - oddly, after the first two but before the third - she released "You Don't Own Me," (peak position #2) which is a clear declaration of independence from the notion of boyfriend-as-identity and which sees the singer promising that she will "be myself," "live my life the way I want" and "say and do whatever I please."  That song has had a longevity and resonance that her bubblegum songs did not.  It's been covered in at least seven other languages, has appeared in several films (including a prominent scene in First Wives Club where it is sung by Bette Midler, Diane Keaton, and Goldie Hawn), and was the basis of a PSA in 2012 advocating for women's issues in that election cycle.  Gore herself appears at the beginning of the PSA, stating "I'm Leslie Gore and I approve this message," and she makes an appeal at the end of the video too.

Apart from "You Don't Own Me," Gore was the co-writer (with her brother) of the song "Out Here on My Own," which appeared in the movie Fame and earned her an Oscar nomination.  And she co-wrote "My Secret Love" for the movie Grace of My Heart.  In that movie, a character who is clearly modeled on Gore sings a song about her female love interest and hopes for a day when she can live openly "without the need to hide away."

In her life, Gore did just that.  Starting in 2004, she was an occasional guest host of PBS's series In the Life, which ran for 20 years and focused on LGBT issues.  And by the time she came out publicly in 2005, she had already been living with her partner Lois Sasson for 23 years. 

That is a pretty remarkable career, and even more so for someone who is primarily known for a handful of teenybopper hits.  May she rest in peace.

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Okay, now for today's True Music Fact.  In early 1963, Gore got the attention of the then-young record producer Quincy Jones when some demos that she made with her voice teacher found their way to his office in New York City.  Jones was an A&R guy, and came to Gore's house in February 1963 with a stack of demos for them to consider together.  As the story goes, there were nearly 200 demo records, which Jones and Gore went through in the den of her parents' house.  After listening to each one they would put it in either the "no" pile or the "maybe" pile.  By the end of the day, there was only one song in the "maybe" pile: "It's My Party."

Gore and Jones booked time in a Manhattan recording studio, and on the afternoon of March 30, 1963 they recorded the song.  But if not for a lucky coincidence later that night, it might not have ever been a hit.

As we got into a bit in TMFW 71 with the story of the many versions of "Let's Live for Today," in the early 1960s the record industry was still dominated by performers recording songs that were written by other songwriters.  So commercial success was as much about who was first to the record store (and more importantly the radio waves) as it was about quality.  In the case of "It's My Party," the demo that caught the attention of Jones and Gore had also won over Phil Spector.  Spector at the time was producing songs for The Crystals, who had a number 1 hit in 1962 with "He's a Rebel" and who went on to sing the top-10 hits "Da Doo Ron Ron" and "Then He Kissed Me."  Spector intended to record "It's My Party" with that group, and a release from an established act would surely have buried one from an unknown high school junior.

As fate would have it, on the evening of Saturday, March 30, Quincy Jones and Phil Spector were both at Carnegie Hall for a concert.  Making conversation outside of the venue, and without knowing that Jones had recorded the song with Gore earlier that day, Spector told Jones about his plan to record the song with The Crystals.  Understanding that a Crystals version of the tune would sink his efforts, Quincy Jones hurried back to the studio and (allegedly that very night) pressed 100 copies of the song.  He mailed the records to radio stations in key markets, and by the next Friday Lesley Gore heard herself on the radio.  The song was officially released later in April 1963, and it hit #1 the first week in June.  It was Quincy Jones' first #1 song, and the rest was history.

The Crystals never did record a version.  They were too late to the party.

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BONUS FACT:  Just in case you are tempted to feel bad for Phil Spector for getting beat on "It's My Party," you should know that he did the exact same thing, in a worse way even, on The Crystals hit "He's a Rebel."  Spector heard that Vicki Carr was recording the song, and he wanted it for the Crystals so badly that he did not even wait for the "real" Crystals to come in from the east coast to LA to record it.  Incredibly, he used the group The Blossoms (lead by Darlene Love) and simply credited the song to The Crystals.  The actual Crystals were surprised to learn that they had a new song out, and were forced to work it into their live act.  The Blossoms for their part earned only a session fee and were not credited on the record.  Unbelievable.

BONUS FACT 2:  TMFW favorites They Might Be Giants do a nice, sparse cover of "Maybe I Know."  Here they are doing it on MTV in 1989.

TMFW 75 - The Shortest Show

Last Thursday night, I went with two friends (and early TMFW "subscribers") to see Evan Dando from The Lemonheads play an acoustic show at a small venue in downtown Chicago.  I have loved The Lemonheads since my youth; their excellent record It's a Shame About Ray is probably in my top-10 all-time albums.  I was very excited for the show, but then very bummed out when Mr. Dando played a grumpy, half-hearted set that lasted only 35 minutes.

Dando's performance got me thinking about other shows that I've seen that were short, and that reminded me of a fun story about the (one-time) official record-holder for Shortest Rock Concert: The White Stripes.

In support of their sixth record Icky Thump, Meg and Jack White embarked on their first ever tour of Canada.  For fun, they decided to tour ALL of Canada.  When announcing tour dates, Jack White explained: "having never done a tour of Canada, Meg and I thought it was high time to go whole hog. We want to take this tour to the far reaches of the Canadian landscape. From the ocean to the permafrost. The best way for us to do that is ensure that we perform in every province and territory in the country, from the Yukon to Prince Edward Island."

 

And indeed, over three weeks in the summer of 2007, The White Stripes played 19 official shows across Canada's 13 provinces and territories.  According to the tour writeup on Wikipedia, they also played a number of "secret" shows announced through a fan internet bulletin board, including "performances at a bowling alley in Saskatoon, a youth center in Edmonton, a Winnipeg Transit bus and The Forks park in Winnipeg, a park in Whitehorse, the YMCA in downtown Toronto, the Arva Flour Mill in Arva, Ontario, [and] Locas on Salter (a pool hall) in Halifax, Nova Scotia."

The most famous "secret show" was the final one of the tour.  On July 16, 2007, the band was in St. John's, Newfoundland to finish their tour and complete their checklist of Canadian territories and provinces.  They had a gig later that night at the Mile One Centre - a hockey arena - but first they set up an outdoor street concert along George Street in the city centre of St. John's.  Their setlist for the gig is short; after setting up all their stuff, the band took the stage and played only one note (a C#, allegedly).  They then bowed triumphantly, announced the completion of their Canadian quest, and walked off.  You can watch the whole show here (the music is about 40 seconds in); for his part, White chose a fine note for her performance and played with gusto.  And the crowd's encore chant of "one more note" was a nice touch, too.

 

Jack White believed that their one note show should earn his band a spot in the Guinness Book of World Records for "Shortest Concert," and made that fact known.  And in 2009, the band did appear in the book.  But they were removed in subsequent editions, which in 2012 caused Jack White to lash out at the "elitist" organization, complaining in an interview to Buzz Aldrin (???) that "[t]here’s nothing scientific about what they do. They just have an office full of people who decide what is a record and what isn’t."  Guinness responded in turn, explaining that after the record appeared in 2009, they were deluged by people claiming to have broken it simply by appearing on stage, or even by not appearing at all.  They sensibly noted that "[t]he nature of competing to make something the 'shortest' by its very nature trivializes the activity being carried out, and Guinness World Records has been forced to reject many claims of this kind. As such, we have been forced to cease listing records for the shortest song, shortest poem, and indeed the shortest concert." Guinness then challenged White to "attempt any of the 40,000 records that are currently active on our database" if he wanted a proper spot in the book. 

 

Perhaps Mr. White could try to break the record for The Hardest Button to Button.

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BONUS FACT:  The Lemonheads have for a long time had a reputation for being, um, a bit erratic.  In one famous story - confirmed by Evan Dando last year to the Chicago Tribune - the band fired their drummer, who then responded to a "drummer wanted" advertisement and found himself auditioning for...The Lemonheads.

BONUS FACT 2:  For a taste of Evan Dando at his best, you can watch him play a short but beautiful acoustic version of It's a "Shame About Ray" on Regis and Kathy Lee, or an excellent full-band version of the same song on Letterman (note Letterman holding up a TMFW 74 subject CD Longbox!).

BIBLIOGRAPHY: today's fact was taught to me by Dan Lewis's excellent, free daily newsletter Now I Know.  If you like TMFW, I recommend it highly. 

TMFW 74 - R.E.M. Rocks the Vote on Spare Cardboard

 

When CDs were introduced in the 1982, they were presented as a huge leap forward for the music industry.  In this delightfully weird ten-minute ad for compact disc technology made by CD co-developer Philips, Alan Parsons gripes that "for too many years, we've had to work in the dark, knowing that nobody would be able to hear the music as we made it in the studio," and then promises that "with the coming of compact disc, this is no longer a problem."  News stories from 1984 and 1985 - when CD players dropped from $1000 to around $300 (that was considered cheap, but it's over $650 in 2014 dollars!) and the format actually started to take off -  breathlessly explain that the discs are "made by computers" and "played by lasers," and that they sound better than anything out there.

 

But as great as the technology was for audiophiles and for the record industry, retailers were not happy with the new format.  First, record stores were full of display stands custom-built to hold 12 inch by 12 inch vinyl records.  But CDs were 5 inches by 5 inches, which looked small and weird on the racks.  Buying all new display equipment and rearranging layouts for an unproven format was a nonstarter for record stores.  Second, CDs were just small enough that enterprising shoplifters could fit them in pockets and down pants without much trouble. Anti-theft measures like plastic cages or electronic sensors would cost money and be a hassle to implement.  Because retailers were, obviously, critical to record sales, the industry placated them with a packaging solution: the "CD Longbox." (Remember those?)

 

Longboxes were basically just extra cardboard built around the CD case so that the package grew from 5 inches by 5 inches to 6 inches by 12 inches.  Two longboxes next to each other would fit in the exact space that one vinyl record took up, so the transition from vinyl to CDs would be simple.  And the bigger package was also harder to steal.  As a result of those two thing, retailers loved them.  For their part, record companies did too.  Longboxes added between 25 and 50 cents to the manufacturing cost, but added up to $1 to the retail price of a disc.  Essentially, the record company built an expensive an unnecessary package around their CDs, purely to benefit cheap record store owners, and then everyone down the line marked up their cost and made a profit selling the cardboard to consumers.  

 

As you might guess, longboxes were not very popular with the record-buying public.  The boxes were almost always simply ripped in half to get to the actual product, and then thrown away - sometimes right at the register.  That waste became hard to ignore, and as CD sales grew exponentially in the late 1980s and early 1990s longboxes were increasingly criticized for their environmental impact.  This 1990 Entertainment Weekly article notes that 200 million longboxes were trashed in 1989, which created 18.5 million pounds of waste. By mid-1990, every other country but the US had done away with the packaging; despite the environmental pressure the record companies and record stores weren't ready to give in.

 

All of that history is interesting (well, to me it is), and sets the scene for today's TMFW.  In 1991, REM released its record Out of Time.  REM at that time was at the height of its powers; Green had featured their biggest single yet ("Stand," which reached number 6 and which complemented "Pop Song 89" and "Orange Crush" on the record), and college rock was breaking out into the mainstream.  REM, who were a environmentally-conscious group, were concerned about having their record marketed with a longbox in the US, and initially refused to allow it.  But their label Warner Brothers knew that their sales would be hurt if they insisted on going without the longbox, and so they had to find a way to convince the group that the environmental impact was worth it.  

 

Warner Brothers came up with a genius solution: use the extra packaging for a political movement.  REM's lead singer Michael Stipe was outspoken politically, and was keenly interested in the "Rock the Vote" campaign that was founded in 1990.  Rock the Vote came partially in response to Tipper Gore's Parents Music Resource Center, which pushed for censorship of music that they deemed inappropriate.  The PMRC freaked out the record labels and infuriated artists, who rightfully felt that having a panel of middle-aged, right-wing, upper- upper-class politicians' wives judging the content of their music was totally inappropriate and would lead to horrific results.  So Rock The Vote was born, with a stated aim of engaging young people in the political process so that the value of free expression would be well-represented at the polls.

 

This is where the Out of Time longbox comes in. This excellent episode of the "99% invisible" podcast tells the story well: Warner Brothers convinced REM to use the longbox by promising to put a postcard on the back that record buyers could fill out and send in to their senators (c/o Rock the Vote.)   The postcard urged the senators to support the "Motor Voter Act," which made registering to vote much easier by allowing people to register when they applied for drivers' licenses at their state DMVs.   

 

Out of Time was a breakout record for REM; behind "Losing My Religion," "Shiny Happy People," and "Radio Song," it hit number 1, won three Grammy Awards, and sold 4 million copies.  And the postcard gambit worked well, too: during Senate hearings on the Moter Voter Act, supporters brought in a shopping cart filled with 10,000 signed cards to demonstrate public support for the bill.  Ultimately, Motor Voter passed Congress in 1992.  Despite efforts from Michael Stipe and Rock the Vote to urge signing, President George H.W. Bush vetoed the bill during the 1992 campaign season.  His rival Bill Clinton seized on that veto and promised to support the bill if he was elected; in May, 1993 - just four months into his first term - Clinton kept his promise and signed the Act.  

 

As the 99% invisible entry suggests, Out of Time is likely the most politically significant record of all time.  And it's all due to some wasted cardboard.  

 

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BONUS FACT: Longboxes didn't last very long after Out of Time.  In 1992, David Byrne put a sticker on each copy of his album Uh-Oh that read "This is garbage. This box, that is.  The American record business insists on it, though.  If you agree that it's wasteful, let your store management know how you feel."  By the end of 1993, CDs were by far the most dominant format, vinyl was dead, and longboxes became effectively extinct.  Ever the dinosaurs, record stores mourned the loss.

 

BONUS FACT 2:  Frank Zappa, who was an interesting enough dude to merit about a dozen TMFWs, was a leader in the resistance against Tipper Gore's PMRC music censorship campaign.  His testimony before a Congressional subcommittee 1985 was one of his great all-time performances.  You can read a transcript here and an appreciation of his anti-censorship efforts here.

 

BONUS FACT 3:  One of PMRC's "filthy fifteen" - the 15 most objectionable songs that PMRC targeted for censorship - was Cyndi Lauper's "She Bop," for lyrics about sex and masturbation.  I had no idea what I was listening to as a kid.