The significance of the Thicke/Williams ruling for recording musicians

No one in the music world expected it. Stevie Wonder told the Gaye family not to waste their money. But when the Marvin Gaye estate were victorious in their claim that Robin Thicke and Pharrell Williams had infringed the copyright of Marvin Gaye’s composition “Got To Give It Up”, it made the usually smug and self-satisfied music industry as skittish as a rabbit surrounded by rattlesnakes.

Producers, songwriters and publishers are shivering in their John Lobb boots

because the court’s decision changed the legal definition of copyright infringement. Having testified as a forensic musicologist, the premise was that copyright in a song should be based on an analysis of melody and lyrics. This is why my well-shod colleagues and I never believed the Gaye estate would win. No melodies or lyrics were copied, not even any significant instrumental melodies. According to prior legal practice, the judge should have thrown out the case.

But conceding that Thicke & Williams’ song “Blurred Lines” did not copy any of Gaye’s melodies or lyrics, the court nevertheless ruled that the similarity of the “feel” of the rhythm section was enough grounds for a decision of copyright infringement. Denying Thicke & Williams’ declaratory relief counter-suit, the judge imposed a fine of $7.3 million. To clarify, this created a totally new criterion for plagiarism. This changing of the goalposts has the industry fearing a copyright goldrush, a hurricane of lawsuits from the estates of legacy artists such as James Brown, Smokey Robinson and Bo Diddley against a long list of current hitmakers.

Howard King, Pharrell Williams’ lawyer, has written, “Should the verdict be allowed to stand, a terrible precedent will have been established that will deter the record labels that fund new music from getting involved in creations built on the shoulders of other composers. No longer will it be safe to compose music in the same style as another song.”

That’s very worrying to the 21st century’s brave new music industry based on TV exposure, soft-porn music videos and computer generated generic music. There has never been a time when originality is so far down the list of priorities. It’s been so easy for so long. Steal a little from here, a little from there, sample this, time-stretch that, fire up the auto-tune and wait for the royalties to pour in.

But now, writers and producers have been plunged into a waking nightmare: If they can’t base their ‘new’ hits on previous hits, what on earth can they base them on? It’s a creative catastrophe where the Emperor’s new clothes are revealed to be old clothes stolen from artists of the 60s and 70s.

And it’s not just pop records that will be affected by the Gaye decision. What about the arrangers and orchestrators who work for film composers? Under the gun of time, the composer scribbles out 6 bars of a top line with some chord symbols and writes on the side of the page, “big orchestra, elec. gtr. lead. Lots of funky brass! M=83, 2:24 seconds”. They give that to their “orchestrator” (see how they cleverly don’t even call him an arranger because they know that has compositional connotations) and say “Expand this to 2 minutes 24 seconds and have it ready by 3 o’clock with a full mockup.” After the Gaye decision, the orchestrator can expect credit and royalties as co-composer.

And what about films? Movies based on other movies? Directors influenced by other directors? Movies based on books? Movies based on comic books? What about Quentin Tarantino whose films are influenced by the genres such as film noir, blaxploitation and ‘spaghetti westerns’?

And what about chefs? Does a restaurant serving ‘French Cuisine’ have to give credit and royalties to one of Louis XIV’s chefs?

And while we’re attacking Robin Thicke, why not extend this to the nudity in the “Blurred Lines video”? Thicke and his manager Jordan Feldstein wanted to guarantee the song’s success with a controversial viral video. Nudity guaranteed the video would be banned. But let’s ignore Thicke’s misogynistic amorality and greed for a moment.

Wasn’t the nudity copied from the nudity in other music videos by Justin Timberlake or Lady Gaga or Miley Cyrus etc.? Or was the idea stolen from the nudity in paintings by Rembrandt or Ingres – or Greek or Roman statues? Or based on a million porn films? I’d call that a case of naked plagiarism!


While they all wrestle with those embarrassing problems, there is another group of artists the music industry has never given a moment’s consideration to. And those hitherto invisible artists now have publishers and songwriters firmly in their sights. Be afraid. Be very afraid. The Arrangers are coming.

Previously, arrangements have been considered to be legally owned by the publisher and songwriter. As I explain in my book, The Invisible Artist, throughout the history of popular music, arrangers have had no rights whatsoever in their own work. The catchy brass introduction to “Dancing In The Street” was not written by the song’s credited songwriters, Marvin Gaye, Mickey Stevenson and Ivy Joe Hunter. It was written by Motown arranger Paul Riser, one of pop’s most prolific arrangers of hits. Although that brass melody was Riser’s composition, it was deemed to be owned by the songwriters and their publishers. Riser’s only remuneration was his arranging fee (around $10-20 per song). His fellow rhythm section musicians in the Funk Brothers never dreamed that the grooves, the rhythmic ‘feel’ they created would ever be of value. They accepted that they had regular work paid at $2.50-10 per song.

Most people, even musicians, do not understand what an arrangement is. I’ll begin by saying what it’s not. It’s not a chord progression and it is not simply orchestration – giving specific instruments previously written melodies. Since popular music began in the 1900s, arranging has been a job given to composers and orchestrators who make musical decisions that enhance the song and the performer. Sometimes those decisions are purely technical – they add appropriate accompaniment.

But sometimes arrangers create a genre with a rhythmic “feel”. They go beyond the technical to compose new melodies, important memorable ‘hooks’. Where this is true, I have argued for years that arrangements deserve to be qualified as co-composition. Now, the courts have not only agreed with me, they’ve ruled that rhythm patterns are equally as deserving as a string arrangement by Paul Riser, a French Horn melody by George Martin, a whistling tune by John Altman… or even a funky brass line by Richard Niles!

The Thicke/Williams ruling is a landmark case for arrangers because it states that the arrangement is a significant and integral part of the composition. A song is now legally defined as a melody, lyrics and its arrangement, whether it is a brass or string melody written by arrangers or a “feel” created by the rhythm section. As an important element of a hit, the arrangement has a monetary value—in the Gaye case, $7.3 million!

Pop has indeed eaten itself—at a very expensive restaurant!

The Gaye estate is taking the money and running. Good luck to them. But no one has mentioned that the rhythm arrangement on “Got To Give It Up” was not written by Marvin Gaye alone, though he owned the rights to it according to copyright law, as it was interpreted at the time. His co-arrangers were the rhythm section, Jack Ashford, Bugsy Wilcox and Johnny McGhee. Because they had no choice at the time, those musicians knew that any recording sessions they took part in were considered ‘work for hire’. They accepted that they were earning small amounts of money while the songwriters and publishers would be making a fortune when the song became a hit.

Warning to all songwriters and publishers: Those days are gone!

Because the arrangement is now legally of value as part of the composition, why should any arranger, or any studio musicians simply give away a valuable commodity? From now on, we lonely scribes and brothers in rhythm sections are in a position to make a deal with our employers.

Fanfare, if you please! I present:

The Recording Musician’s Bill Of Rights

Songwriters and Publishers [represented by ASCAP and BMI] (S&P)
Arrangers and Studio Musicians (A&S).

This would be a legal form Agreement signed for every track, whether recorded in a major studio in LA or a bedroom in Philadelphia.

  1. S&P state that the work done by A&S is copyright-protectable and guarantee A&S credit as co-composers.
  2. S&P grant A&S a percentage of the writer and publisher royalties to be split equally between all A&S. I suggest that 20% would be reasonable, but the amount will have to be negotiated and agreed by ASCAP, BMI, PRS and all relevant performing rights societies around the world.
  3. The Agreement would not be optional, subject to negotiation for each recording, but apply to every recording made by members of performing rights societies.
  4. No recording would be released in any media without one of these signed Agreements lodged with the NARAS (or maybe ASCAP or maybe the IRS – I haven’t quite worked that out!)
  5. A&S agree to use their musical expertise to ensure that their work would not infringe the copyright of a previously released record. In the event of a lawsuit, A&S would indemnify S&P against lawsuits pertaining to the arrangement, but not for any infringement caused by the songwriter’s melody or lyric.

For those songwriters and publishers beginning to foam at the mouth, I suggest you look at Point 4 again. This will guarantee that no further litigation will affect you as a result of the minefield created by the Thicke/Williams ruling. And when songwriters and producers begin to infringe copyright by being too ‘inspired’ by an old track by James Brown, the arrangers and musicians will have the musical expertise to stop them in their plagiaristic tracks.

In return for a piece of the action you are getting piece of mind!

The Recording Musician’s Bill Of Rights will ensure that the Judge’s radical reinterpretation of what constitutes copyright-protectable intellectual property does not cause chaos throughout the music industry. It will also mean that for the first time in over 100 years of popular music, the talented backroom boys (and girls like bassist Carol Kaye) will be treated as artists rather than as faceless hacks. They will not have to worry about having enough money to order another cup of coffee at a restaurant where they are listening to the radio playing a hit with their catchy guitar riff.


BTW, to anyone who wants to know if I am going to sue my previous employers for all the hits I’ve worked on for the last 40 years, the answer is:

No, I’m too broke to bring a lawsuit because I worked as an arranger for too long.

©2015Richard Niles

Dr. Richard Niles is a composer, arranger and author living in California. His book “The Invisible Artist” is available from Amazon. Buy it for endless hours of guilty pleasure.

Working on “American Garage” – Pat Metheny Group (1979)

Working on American Garage with The Pat Metheny Group (1979)
Dr. Richard Niles

I met Pat Metheny in 1974 when I was studying at The Berklee College of Music. Gary Burton hired Pat as a guitar teacher. We developed a friendship based on my understanding of Pat’s unique quest to find his own voice. Pat also saw a similar quest in my compositions. He also has a sense of humor.

I was living in LA throughout 1979 having worked in London since 1975 as a record producer, composer and arranger. I had worked with many stars of the time including Tina Turner, Cat Stevens and Leo Sayer. I went to see The Pat Metheny Group play the Santa Monica Civic Auditorium and was looking forward to catching up not only with Pat, but with Danny Gottlieb who I had become friendly with on his trips to Boston.

Backstage, Pat told me he had begun to feel that rather restricted by the purist production methods of Manfred Eicher. The group was about to make a new album. “It’s the first record I’ve done without Manfred producing. You’ve produced a lot of records in England. Would you like to help us?” I agreed in a nanosecond.

Pat asked me to find the best recording engineer in LA and I suggested that I could ask the highly respected Humberto Gatica who I had met on Leo Sayer’s sessions. Unfortunately, Humberto couldn’t do the dates, but he suggested his friend Kent Nebergall who had recently done a Rita Coolidge album that I liked the sound of. So did Pat.

The album was to be recorded at Longview Farm Studio in North Brookfield, Mass. Kent and I were flown to Ney York City to see the band play and then travelled to the studio. The group Stuff had recorded there so I figured it would be a nice place to make great music. It was a residential studio housed in a big red barn, so I was looking forward to waffles, communing with nature and maybe even seeing Superman flying off on some mission.

But the first day was a little ‘bumpy’ for the band. By the end of the afternoon the MCI console and Studer 24-track had recorded nothing usable. We were trying to record a long (13 minutes) complex piece called “The Epic”. Kent and I looked at each other thinking, “These are some of the greatest musicians in the world. What’s wrong?”

What was wrong was that no one was comfortable. I took Pat aside and said, “That piece sounded great last night, but it really is an epic! But why don’t we just play that rock tune you guys played at the end? It was actually my favorite tune of the gig!”
Pat laughed, “Well, I’m not sure Manfred would want that tune on an ECM album…”
“Well, let’s play it just for fun,” I said, “I don’t have to record it. Maybe it will loosen everyone up.”

They rocked and everyone went crazy. Of course we recorded it. To me, this tune was what made that incarnation of the Pat Metheny Group unique—a joyous mix of rock and jazz creating a new single entity of its own. A + B = PatDannyLyleMark.

The tune had no name and we were reading a review of the New York gig. It said something like, “The Pat Metheny Group play like an extremely talented garage band..” I said, “How about calling the tune ‘Talent Garage’?”
I think it was Lyle who said, “How about ‘American Garage’?” and that was it. It became the name of the album. We even did a photoshoot for the cover with the band crammed into a local garage. Here is Rob Van Petten’s original colorized shot. The guys were actually playing some rock tune—it might have been “Louie Louie”.

American Garage - Rob Van Petten

American Garage – Rob Van Petten

After that, the other tunes went smoothly with everyone playing as magnificently as they had onstage the previous night. I didn’t have to tell these superb musicians what to do. Instead, it was my job to enable them to do their thing without any technological impediments. If they had ideas, I accommodated them. I was able to work easily with Kent because he knew his stuff. If I suggested more high EQ on the toms or less compression on the bass, he knew what sound I was looking for.

When a take was finished everyone gathered in the control room and discussed things. If someone made a mistake I explained we could simply ‘drop in’ to the track to repair it rather than lose a great group performance. The purist jazz attitude of ECM’s Manfred Eicher had never allowed Pat to do anything of this nature.

By this time Metheny had grown as an artist and needed to explore his own ideas, express his unique sensibilities. Although he was influenced by mainstream jazz (Miles Davis) and soul and blues (Wes Montgomery), he also felt the need to also express the youthful exuberant sounds of rock and pop (the Beatles). “Airstream” is a beautiful tune reminiscent of both Bacharach and country. Later, Brazilian influences would be heard.

Beyond the type of music he chose to record and his direction of the musicians, the production methods employed by Eicher had been rather limited. All music was recorded live with superb microphones in superb studios with expensive sounding reverbs. And… that was pretty much it. Great musicians played live and albums were completed in a couple of days. This was no different to how jazz and classical albums were produced in the 1940s.

But the techniques of production had developed from the 1950s with the advent of rock ‘n’ roll and engineers like Tom Dowd and Joe Meek. These pioneers explored overdubbing, experimenting with microphone placement, ‘flanging’ and ‘automatic double tracking’ using two tape recorders, overloading the tape (tape compression), creative use of compressors and limiters and new reverbs. George Martin’s production on Beatles records was another leap forward. By the mid 1970s when I began producing records in London, these revolutionary sounds had become commonplace. The recording studio itself had become a creative instrument.

I was able to suggest a few ideas to the band that I had used on pop records in London. On “American Garage” there was a moment where I felt it needed a more exciting crash than Danny’s cymbal. I overdubbed the sound of breaking glass. I filled a large cardboard box with empty bottles and put a Neumann U87 next to the box. I then got up on a ladder and threw a milk bottle as hard as I could into the box. Kent recorded that to 2-track and then ‘spun it in’ to the track on the cymbal crash. Today that would be easily done digitally, but I have to say it was more fun in ‘the old days’, lining up bits of tape.

At the end of “The Epic” I suggested that Pat slow the tape to half speed and play some picked arpeggios. This was to give an even more epic, orchestral feel to the end. Of course at normal speed, the picking was an octave higher and sounded sparkly and bright.

Another overdubbing idea was used on “The Search”. Pat played the melody on an electric 12-string and I suggested it might sound good in 3-part harmony. I discussed it with Pat for a few minutes and then offered to write out the harmony parts. Lyle (who had been sitting quietly playing chess against himself) said, “I’ve already done it. Try this,” and handed Pat the parts. It’s a sound I’ve never heard on any other record since.

The amiable Kent Nebergall scared us to death one afternoon when we heard a loud electrical click on the Ampex 24-track tape. I feared we might have to re-record a great take but he calmly said, “No problem. Give me a few minutes.” He rubbed the multitrack back and forth, muting tracks until he had identified, “It’s on track 17.” I said, “Then we’re doomed.” “No,” he laughed, just get me a pin.”

He marked the click on the 2-inch tape with a white Chinagraph wax pencil. He then stretched the tape tautly in the air and, to our horror, pierced the tape with the pin leaving a neat hole in the tape, exactly on his mark. I sputtered, “Kent??!! Are you out of your mind??” ”Oh, yes,” he smiled, “but your click is history.” Sure enough, the tape played perfectly with no click. That’s still the most amazing thing I’ve ever seen in 50 years of recording.

My deep admiration and love for Metheny’s work has always been clear. But let me take this opportunity to say that the musicianship of Lyle Mays is quite breathtaking. A kind of luminescent, understated spirit shines from every note he plays or writes. He has a great lyricism mixed with a wry sense of humor—classy and louche, both slick and surprising. This is a man who could bring hope to a dying planet with a gentle, aptly voiced chord from his long fingers.

Danny Gottlieb is perhaps the most dynamic drummer I have ever had the pleasure to work with. The fact that he can sound great with both Metheny and the Blues Brothers gives him a versatility equal to plastic. He can float over the track with his trademark, delicate cymbal work or rock like a San Francisco doper wacked out on Acapulco Gold and acid in 1967. Very sensitive to everything going on around him, Gottlieb compliments the group vibe so well that he makes a band sound like one great player.

Mark Egan is a musician who can lead from behind. The intuitive communication of his bass with Gottlieb’s mercurial rhythms made their subsequent 30+ years no surprise to me. Like Danny, his sound and execution was always in service to the composition. I was happy to see this again when Danny and Mark lent their artistry to my two guitar albums in later years.

I was also fortunate to work with Metheny again on a duet with Silje Nergaard, a Norwegian artist I was producing for my own label. We had a #1 record in Japan with the song “Tell Me Where You’re Going”.

It was wonderful to be a small part of an important stage in the unparalleled development of Metheny’s artistry. Even though, or perhaps because we had used contemporary production methods, American Garage was the album that first caught the powerdrive of the Pat Metheny Group live onstage. It also pointed to a future that was to significantly influence the course of contemporary jazz. It was also a hell of a lot of fun.

©2014Niles Smiles Music

Bob Dylan and Chrysler – A Tarnished Legacy

Bob Dylan and Chrysler – A Tarnished Legacy   by Dr. Richard Niles

When Bob Dylan did a TV commercial for Chrysler, many of my generation recoiled in shock, as if Bambi had been found guilty of dealing crack to the bunnies in the forest.

Dylan revolutionized lyric writing and changed the consciousness of a generation. Having heard Dylan, no songwriter ever approached his craft in the same way. His words had the power to change. It could be said that Dylan’s influence still has some sort of impact on everyone in western culture. Again and again, he produced spellbinding language that altered forever our idea of the role of the performer and the purpose of songwriting. His vision raised our awareness of who we were and who we could become. He made it the purpose of art to reevaluate politics, religion and culture.

And suddenly we were presented with our divine poet doing a car ad. Were we wrong to follow a spiritual compass that could go so haywire? Dylan was our “weather man”. Yes, our culture has become increasingly fundamentalist. Politics and the media are even more unashamedly based on the “greed is good” philosophy than it has ever been. But, Bob, you’re the guy who wrote Blowing In The Wind. Are you really telling us this is “the way the wind blows” now?

Although Dylan wrote, “not much is really sacred”, his words were regarded as such by people like me, growing up in the 1960s. When he said he didn’t want to be regarded as a prophet, he was quite obviously being disingenuous.

Dylan’s songs specifically targeted “advertising signs that con you into thinking you’re the one…” He stated “propaganda all is phony”. Is not advertising a type of propaganda? Is advertising not one of “society’s pliers”? (And all those quotes are just from one song!)

So when Dylan does an ad, especially one with such a clichéd and jingoistic message, those old enough to be profoundly affected by his work in the 60s are bound to be disappointed. I can’t decide whether it’s worse to think he agreed to read an ad man’s copy or that he actually wrote this inane drivel himself!

If none of this bothers you, maybe you did not spend hours pouring over Dylan’s poetry, searching for insights. I did. Maybe you did not get strength from his words as you walked home after a bad day at school. I also analyzed his lyrical techniques, his use of imagery and oblique contrasts. I read Ezra Pound and T.S. Eliot simply because Dylan mentioned that they were “fighting in the captain’s tower” in Desolation Row.

And Dylan, this literary giant, this profound prophet does a cheesy car ad? Why? Money? Obviously not. Dylan’s enormous catalogue of hits and covers by many major artists through the years would be enough to ensure that Dylan’s great grandchildren will never have to work one day of their lives. Nevertheless, many say he has “sold out” by doing this ad.

No one ever accused any artist of selling out because they made money from their songs and performances. But the meaning of the term ‘selling out’ is that a person has abandoned their moral principles in return for gain. If morality is an outmoded concept, we are all doomed to an amoral world where greed is justified. The thing that bothers me is not that Dylan did an ad as much as the way it was done—that he has abandoned his art and its moral standpoint by buddying up with Chrysler.

Chrysler chose Dylan because he is regarded, quite justifiably, as a cultural icon. In the ad, Dylan intones, “You can’t fake true cool.” Advertising relies on misdirection. So when he says this, it directs our attention to his legacy—away from the fact that he is advertising for Chrysler. The ad uses clips of Dylan in the 1960s to reinforce the idea that Dylan is “true cool”. But those of us who knew him in the 60s are not so easily fooled. The cinematography of the film tries to say that Dylan now, advertising for a car manufacturer, is just as “cool” as Dylan in the 60s.

The problem for Dylan, and Chrysler is, as Dylan says in the ad, “You can’t duplicate legacy.” You can’t expect anyone with half a brain to believe that the Dylan who wrote “It’s All Right, Ma” is on an equal plane of coolness as the Dylan who spouts crude nationalistic slogans walking through rows of shiny cars. No matter how well lit this is, the glossy images are not fooling me.

As sensitive artists, we must be very careful not to confuse the ART with the person who creates it. We are affected by great art and expect the human creators to live up to the ideals expressed by their art. But the art is just one aspect of the artist’s humanity, perhaps the best. It is not so much Dylan’s decision to do a car commercial that is upsetting. It is that he is wasting his breathtaking talent as a wordsmith on a mediocre, jingoistic script expressing the most banal of sentiments. Dylan may be very flawed as a man, just as Dylan Thomas was an alcoholic. But when he devalues his ART, a body of work that is breathtakingly innovative, and incalculably influential, he damages his reputation as an artist. It also diminishes our capacity to appreciate his art without thinking of this distinctly lowbrow ad.

One last point. Everyone has their own moral compass to follow. I don’t think it’s healthy for me to judge someone else by my standards. But I think it’s essential for everyone to have their own principles to judge themselves by. I think he has let himself down. If Dylan’s songs came from his heart, it is sad to think that this heroic, beloved iconoclast could abandon his own spirit for the rewards of jumping on the Chrysler production line. I hope they gave him a nice ride.

©2014Niles Smiles Music

Arranging and the Royalty Issue

Arranging and the royalty issue by Dr. Richard Niles

An excerpt from “The Invisible Artist – Arrangers In Popular Music (1950-2000)” In this work, the author has transcribed 222 musical examples of the work of some of the most influential arrangers in pop and examines their significance.

IA CoverSmallIn the U.S. arrangers have the opportunity to be recognized by the Grammy  Awards in two categories—Best Instrumental Arrangement and Best Instrumental Arrangement Accompanying Vocalists. At least winners and nominees can use this to promote themselves and bring in more offers of work. In Britain and the rest of the world there is no such award.

The financial rewards of an arranging career are limited. Arrangers are paid a fee for each job. It’s not huge. Keep working, get jobs in every week and you can pay the mortgage. Arrangers receive no royalties unless they write an arrangement of a public domain work. Copyright consists in a melody and lyrics of a song. But even though I have only transcribed the arranger’s work, the instrumental parts, a variety of publishers own the rights to all the transcriptions in this book. In the eyes of the law, the songwriter and publisher own the rights to every note an arranger writes.

So arrangers have no residual income if a song is a hit and, to be honest, they’re not happy about the situation.

A perhaps unexpected example of this is the case of Sting and his song “Every Breath You Take”. Since its release in 1983 the song has earned Sting approximately $40 million. After the Police had been working unsuccessfully on the song for six weeks, guitarist Andy Summers contributed the instantly recognizable guitar arrangement—an arrangement that, to use Richard Carpenter’s words, “makes the song”. The rights to Summers’ arrangement are owned by Sting and his publishers.

When Puff Daddy released “Missing You” in 1997 using only Summers’ guitar accompaniment (not Sting’s vocal) all the royalties went to Sting and his publisher. Summers got nothing, a situation he described as “the biggest rip-off of all time.” Drummer Stewart Copland added, “So Sting’s making out like a bank robber here while Andy and I have gone unrewarded for our efforts and contributions.”

If wealthy superstars such as Copeland and Summers are upset about the situation, imagine the feelings of the average ‘journeyman’ arranger who, if foolhardy enough to ask for co-writing credit, will be fired and probably never work again.

But are arrangements really considered worthless? In a 2013-14 case the Marvin Gaye estate sued Robin Thicke, T.I. and Pharell Williams for infringing copyright on Thicke’s track “Blurred Lines”, saying that it contained “elements” of Gaye’s “Got To Give It Up”. The only elements relevant to copyright law are the melody and lyrics, neither of which were used in  “Blurred Lines”. But Thicke didn’t sample Gaye’s track. He merely programmed a similar bass and percussion, elements of Gaye’s backing track. Thicke’s instrumental backing track is using part of Gaye’s arrangement in which there is no copyright. So, even though the lines are still slightly blurred, the case has been dismissed as of this writing.

This question of backing tracks/arrangements has another relevance. Since the 1980s it has been common for producers and programmers to record a backing track and ask someone (usually a singer or songwriter) to write a ‘topline’ over it. The producer, now in his role as songwriter, then offers the ‘topline writer’ a small percentage of the writer’s share of the song and usually none of the publishing royalties.

But if an arranger supplies a backing track (as they often do) to a songwriter who gives them a recording of their melody and lyric (a ‘topline’) the arranger is offered no credit or royalties whatsoever.

First, let’s get rid of misleading terms. What is called a ‘topline’ is in fact the melody and lyrics. The word ‘topline’ is one of those words calculatedly devised to be demeaning to the person who is actually writing the song. Posing as the main songwriter, the producer/arranger is merely asking someone for a ‘topline’. It sounds better than asking someone to write the song for them.

When I signed a publishing deal with Rondor in 1990 they asked me to write with DJs. I was expected to write melody and lyrics to their backing tracks. I said, “If I’m writing the melody and the lyric, I’m in fact writing THE SONG and I’ll expect 100% of the writer’s share. I don’t mind splitting the publisher’s share.” They were shocked at my attitude. I was told this was how songs were written today and I was “living in the past”. I replied, (rather heroically, I thought), “I’d rather live in the past than die in the future because I let someone rip me off.” Rondor dropped me.

If the backing track/arrangement is legally part of the song, the arranger deserves royalties—and I should be a multi-millionaire. And so should Paul Riser for writing the brass intro to “Dancing in The Street.” And so should John Altman for writing the whistling melody in “Always Look On The Bright Side Of Life.” But if the law states that every note of the backing track/arrangement is owned by the writer of the melody and lyrics why should any self-respecting “topline” songwriter share writing credit or royalties with the creator of the backing track—the arranger—the person whose work has no value in copyright law?

As Motown arranger David Van DePitte pointed out, arrangers were not under salary and were paid a fee for each job. If an arranger also plays on the track or conducts, they receive a usage fee as a musician. But they are being paid a royalty for their performance, not for their writing. So the songwriters, publisher, artist and record label all receive income for a hit record for a very long time while the arranger, according to current copyright law, receives nothing.

Can we really say that arrangers are undervalued when the music business seems to value them enough to ensure publishers’ ownership of the rights to their arrangements?

Beyond what the law states, is it morally just or, to use a legal term, reasonable that arrangers have no rights whatsoever to their own work? I am too biased to answer that question but readers may draw their own conclusions. Whatever I feel, after 40 years in the business, I don’t expect the law to change anytime before the next Millennium.

©2014Niles Smiles Music

Ideas Make You Better

Ideas make you Better…a catchphrase by Dr. Richard Niles

“Ideas make you better” is the catchphrase of my educational website and clinics, The Niles Creative Workshops. Everyone is creative. Just watch children at play and you’ll soon see potential actors, dancers, writers and singers. When those children are encouraged to develop their talents and learn artistic discipline they can become creative professionals. My teaching is designed to stimulate creativity in musicians.

Of course there is great potential for creativity in all professions—plumbers, scientists and accountants. When a plumber solves a mysterious leak, he is using his powers of deduction like Sherlock Holmes. When a scientist discovers a new way to build a mousetrap he is using something I often talk about: the power of asking “What if…” And we’ve all heard of cases where accountants become perhaps too creative—and their clients up in jail!

The career of creative professionals depends on their ability to generate plenty of ideas. The more ideas they have, the more successful artists they can be. Ideas make them better artists.

New, Interesting and Valuable

But what kind of ideas are we talking about? In order to be effective, ideas should suggest something new—a unique or unusual way of looking at some aspect of life. Old ideas are not necessarily bad ideas. But they have the disadvantage of having already been heard.

I often hear my students say, ‘How can I think up something new? Everything’s already been done!’ This, of course, is nonsense. As Maya Angelou said, “You can’t use up creativity—the more you use, the more you have.”

One of the wonders of life is that we have so much variety. Who cannot be amazed by a biological species that can produce voices as diverse as Tom Waits and Taylor Swift—or ideas as diverse as the Theory of Relativity and the Hula Hoop? Try listing all the different ways songwriters have written about love from the simplicity of Irving Berlin’s “Always” to the sophistication of Lorenz Hart’s “Glad to Be Unhappy” or the abusive obsession of Pink’s “Please Don’t Leave Me”. The universe is infinite, and so are the number of ideas it can generate through us.

Sometimes the new comes from subverting the old, or even trying it backwards. It can come from long dedicated research and exploration. It can come from a random system such as the ‘cut up’ technique of the Dadaists, later used by William Burroughs and David Bowie. Whether from a dream or by design, artists have been finding new concepts and new ways to express them since the first cave painting.

Ideas should also be interesting. The new is often interesting simply because it is new. But interest also comes from relevance. Some artists manage to express the spirit of their times as did Bob Dylan in the 1960s and Lady Gaga in 2011. The interest may be politically or socially thought provoking. Sheer entertainment can also be compelling—there’s nothing new about juggling but it’s fun to watch. The same could be said about sex – common to all of us since the dawn of mankind, but it still sells.

But I believe ideas must have a purpose beyond novelty and entertainment. Anyone who has ever felt that an artist had changed their life will understand how important it is that ideas have ‘artistic value’. This could be defined as illuminating the human condition and enriching our human experience. Ideas make us better. This type of idea helps us better able to make sense of this immeasurably baffling existence and helps us better able to appreciate the beauty and challenge of being alive. Ideas make us better human beings.

In this sense, it is simply not enough to be a powerful singer or a virtuosic instrumentalist. As admirable as that may be, it merely means that the musician has high quality tools. I’m much more interested in the table than the hammer that helped make it. An artist must have ‘something to say’ with their tools—a personal word-view expressed in their music or lyrics. And I would contend that the ideas artists express should be uplifting.

Money – is that what I want?

Artistic value becomes even more important in a culture where success is more and more measured in financial success. But the truth is that despite what the media screams at us, performer is not a valid artist just because they win a TV contest or sell 12 million CDs or stars in the latest blockbuster.

We live in a world where the amorality of bankers is openly rewarded and the media creates truth instead of reporting it. Sadly, many musicians today are training to achieve the money and fame, not to bring some new, artistically valuable insight to the public. At the time of writing, it would seem that entertainment and novelty are all an ‘artist’ needs to have a successful career. Money therefore takes precedence over usefulness or spiritual enlightenment.

Wanna-be artists are overly cautious about possible reactions to their ideas. They know some people will ‘get’ their concept and they’ll be Lady Gaga touring the world and receiving world-wide press for wearing a dress made out of carpaccio. If people don’t ‘get’ them, they might end up like Vincent Van Gogh starving in a garret searching for your right ear. They’d rather have the accolades and the meat. They want to fit in rather than stand out.

But it is very important for all of us to decide whether we intend to be artists who use money to enable us to create art or merchandizers who use art to enable us to make money.

Art or Reality?

I care passionately about the artistic value of my content. Art matters because it stands as an alternative to the heartlessness of society and the politics of greed. It offers a utopia where the ideal can be defined and attained. Without this, I believe we would all go mad. As Nietzche said, “We have art so that we shall not die of reality.”

In these times of economic austerity music programs have been removed from schools and funds for the arts have plummeted. Many educational institutions teach students to pass exams rather than understand the significance of history, language and science to their own lives. They are taught to memorize facts rather than use them as a vital resource for their own lives. This condemns us to a life of depressing, acquisitive pragmatism making us fear or distrust the miraculous. But as Roald Dahl said, “Those who don’t believe in magic will never find it.”

I create music for the same reason I teach: in order to create a world where people can not only dream but learn the practical ways to make their dreams effective in the real world. As Hamlet almost said, there’s a methodology to my ‘madness’. I not only stimulate ideas but I provide more ideas to empower them -“creativity unlimited”.

So my catchphrase is actually something of a crusade. As unfashionable as it may be, I believe there is a moral imperative on all of us to make the world a better place. This can be done by developing strong concepts to make ourselves more effective communicators of positive thoughts. I’m doing what I can with my ‘idea business’ because ideas make you better. And if you’re better, I’m better.

Innovation and the Creative Imperative

Innovation and the Creative Imperative

Dr. Richard Niles

 Colleagues and students have often asked me how they might develop their own original style. I usually take a deep breath and strive to tailor the answer to the individual. I often begin by saying that to even ask the question is a creative step in the right direction.

Many musicians are quite happy to be brilliant technicians capable of interpreting any music at any tempo. This is an accomplishment to be very proud of. But some feel that it’s not enough to be an excellent musician in either a technical or professional sense. They understand that there is indeed a creative imperative – a duty or commitment to go beyond reproducing the great tradition of music. There is a case to be made that if one has achieved excellence, the ‘true artist’ is even more obligated to serve Art by contributing to its development.

How is this achieved? One way is for the artist to see themselves in context to both the past and present of their art. Analysis and study can help identify the methodologies of the great innovators. What exactly did they want to express and how exactly did they do it? Similarities and differences in approach soon become apparent. Humans tend to solve problems in similar ways, and there are patterns specific to influential artists.

In music, the new concepts and styles of artists such as Mozart and Bach, Duke Ellington and Miles Davis, Bob Dylan or The Beatles, did not develop by accident. Artists exist in a kind of cultural ecosystem, their point of view derived from their point in time and frame of reference. But presented with this data to process, some artists develop a vision that looks beyond the zeitgeist to break new ground.

This is not to say that great artists ignore their environment or resist influences. Mozart was influenced by Bach while Beethoven was influenced by Mozart. They did not merely copy but added their own elements to create their own original body of work. Both Bill Evans and Duke Ellington were influenced by Ravel and Debussy but each added their own sensibilities to that influence with different but equally groundbreaking results. Chick Corea and Keith Jarrett were both influenced by Evans but took that influence in very different directions.

Fusion is often the key to innovation.  The blending of seemingly disparate styles can often result in a new direction. It is a rewarding and enjoyable exercise to choose two genres at random, put them together and listen to the result. This can certainly break an artist out of a creative rut. Try mixing traditional Norwegian Sammi music with 1950s New Orleans Rock ‘n’ Roll. How would 80s Techno Pop sound with the vocals of Le Mystere de Voix Bulgares? Even if these combinations are artistically unsuccessful, they are enjoyable to try and can open up new possibilities.

Jazz vibraphonist Gary Burton is a fine example of this. He fused mainstream jazz with country music and rock rhythms and electric guitar to create what is arguably the earliest example of jazz-rock.  (Although serial innovator Miles Davis is often credited with creating jazz-rock, Burton’s “Tennessee Firebird” [1966] slightly predated “In A Silent Way”.) Burton also took a new approach to his instrument, playing the vibraphone with four mallets and ‘bending’ notes. This new performance methodology is another element found in many pioneering artists.

Pat Metheny brought together a love of Burton and Davis with the soul of Wes Montgomery and the melodic clarity of the Beatles to create his own unique body of work. Frank Zappa joyously mixed the concepts of 20th century composers such as Varese with San Fernando Valley rock and downtown LA doo-wop.

But ‘fusion’ is defined as ‘the process or result of joining two or more things together to form a single entity’. My italics are important because mixing red and blue should result in purple. Mixing A with B should equal C, not A + B.

Herbie Hancock’s unique fusions of jazz, rock and electronic music work have made him one of music’s great innovators. Yet an example of fusion which does not work so well for this author would be his Imagine Project (2010). This admittedly enjoyable and polished album of mildly jazz-influenced arrangements of pop songs features singers drawn from the pop/rock genre. They sing in their own pop/rock/soul styles. Accompanying this, Hancock plays in his style, unrelated to the singers or the tracks. He ‘takes it out’, playing ‘Herbie licks’ that are either in a different key or willfully chromatic while the rhythm section remains resolutely straight. The result is A + B, not C. This is a bit like a joke that is funny the first couple of times you hear it, but eventually becomes tedious.

Self-analysis is key in the process. It can be very difficult for an artist to objectively evaluate themselves. One of the most useful guidelines is songwriter Johnny Mercer’s lyric “accentuate the positive, eliminate the negative and don’t mess with Mister In-Between.” I often liken a musician’s development of a concept to the subtractive method of creating a piece of sculpture—the work of art is revealed by the marble that is taken away.

As a trained professional, you may be able to do many things. But what do you do best? What is particularly unique about the way you sing, write or play? What have you received the most compliments for? (Your relatives don’t count!) Pat Metheny recommends that an artist should “follow what they love.” What aspect of music do you love most? What aspect could you literally not live without?

Eliminating the negative is somewhat simpler. Polite applause or rotten tomatoes are very good indications of which marble to chip away. Again, ask yourself which aspect of music you are not good at or simply don’t enjoy. Your own technical facility can be another guideline here. Miles Davis is a very good example of an artist who avoided his somewhat limited technique, instead concentrating on his phenomenal ability to create lyrical melodies with a very personal, emotive tone. Turning a negative into a positive, his ‘cracked’ notes only intensified his human impact.

Most artists I’ve worked with over the years find ‘Mister In-Between’ to be the most difficult to identify and to eradicate. Just because you can do something doesn’t mean you should. ‘Good’ is not good enough in art. The Good can actually dilute the great. By getting rid of aspects of your art that are just O.K. you can sharpen the focus on “the positive”. Make it as easy as possible for your audience to identify ‘your thing’ and don’t clutter up the really special stuff.

It can also be valuable to go back to go forward. This can mean two things. The first is returning to your own past—the original influences that first inspired you to become an artist. That first moment you saw your place in the world defined by a word, a sound, a style or an artist is the key to finding your essence.

Another way to progress is to find inspiration from a past you might be unaware of. Endless ‘eureka moments’ from the history of the creative arts can be found in the treasure trove of YouTube. Sadly, many young aspiring artists are very limited in their awareness of the past. They know little of the history of the art they profess to be dedicated to. With so much information available on the internet, there is simply no excuse for this. Not knowing what has already been done can lead to ‘re-inventing the wheel’. One of my students excitedly ran into one of my lectures with his new band demos. I listened to it and said, “That’s very good, but have you ever heard of Genesis?”

Even music you hate can be useful. Many people put down any successful music as being mindless, crass commerciality. But isn’t it interesting to know why the music has been embraced by the public? What subject matter might you also be addressing, in your own way. Identifying what you hate can also help clarify what you love. Moreover, listening to and analyzing successful music can lead to appreciating certain elements you may want to use in your own music.

I have often heard people say, “But everything has already been done! How can I come up with something new?” I can imagine people with this same negative attitude saying this throughout history, and being proven wrong when innovators such as Bach, William Blake, Charles Ives, Salvador Dali or Bob Dylan came along. The universe offers infinite possibilities and it takes a certain type of person to strive to find the next undiscovered territory. Are you such a person?

The creative imperative is not a ‘fluffy’ thing. It involves having a strong enough respect for the artform to dedicate yourself to endless study and backbreaking work. It involves the humility to surrender yourself to a power greater than yourself. You must be an explorer willing to expose yourself to the danger of failure because you believe the only real risk is not taking one.