A Case for Arrangers’ Rights
Every Buck You Make
Another case is that of Sting’s song “Every Breath You Take” which was a massive hit for the Police. Since its release in 1983, the song has earned Sting an estimated $40 million. Preparing to record the tune, the Police had worked on it unsuccessfully for six weeks. Then guitarist Andy Summers contributed the instantly recognizable guitar arrangement—an arrangement that, to use Richard Carpenter’s words, “makes the song.” But the rights to Summers’s arrangement are owned by Sting and his publishers.
When Puff Daddy released “Missing You” in 1997 he incorporated a sample of Summers’s guitar accompaniment (but not a note of 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.”
But are arrangements really considered worthless? In a 2013 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 was used in “Blurred Lines.” Thicke didn’t even sample Gaye’s track. He merely programmed similar bass and percussion parts, elements of Gaye’s backing track. So Thicke’s instrumental track uses part of Gaye’s arrangement in which there is no copyright. While the lines are still slightly blurred, the case has been dismissed as of this writing.
Both Sides Now
This question of backing tracks and arrangements has further relevance these days. 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 usually offers the “topline writer” a small percentage of the writer’s share of the song and none of the publishing royalties.
But if an arranger supplies a backing track (as arrangers often do) to a songwriter who gives the arranger a recording of his topline, the arranger is not ordinarily offered writer’s credit or royalties.
First, let’s get honest with terms. What is today called a “topline” in fact constitutes the melody and lyrics. Terming it a topline seems like a calculated way to diminish the contribution of the person who is actually writing the song. Posing as the main songwriter, the producer/arranger is merely asking someone for a topline. Perhaps that sounds better than asking someone to write the song.
When I signed a publishing deal with Rondor in 1990, I was asked to write melodies and lyrics to backing tracks written by DJs. I said, “If I’m writing the melody and the lyric, I’m in fact writing the song and I’ll expect 100 percent 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.
But the situation can’t logically work both ways. If the backing track or arrangement is legally part of the song, the arranger deserves royalties. Paul Riser’s brass intro to “Dancing in the Street” and John Altman’s whistling melody in “Always Look on the Bright Side of Life” should have made them millionaires. But if the law states that every note of the backing track or arrangement is owned by the writer of the melody and lyrics, why should any self-respecting topliner share writing credit or royalties with the creator of the backing track (e.g., the arranger) whose work is not valued in copyright law?
As Motown arranger David Van DePitte pointed out, arrangers were not salaried, but were paid per job. If an arranger also plays on the track or conducts, he or she receives payment as a musician. But the payment is a usage fee only for the performance, not for the 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 beyond his or her initial fee.
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 for their work? I’ll let readers draw their own conclusions, but I believe that it’s time to address this inequity.
Richard Niles, Ph.D., has been a producer, arranger, broadcaster, and author since graduating from Berklee in 1975. He has worked with Paul McCartney, Ray Charles, Tina Turner, James Brown, Pat Metheny, and others. His book The Invisible Artist is available from Amazon and as an e-book on Kindle. Visit richardniles.com/the-invisible-artist.