Wednesday, February 25, 2015

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 SongbookAndrew 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.


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. 

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