“Shall we skip the light fandango, m’lud?”

“Why do milkmen whistle? Good question,” ponders Kevin Pierce. “It keeps us awake on dark winter mornings.”

This being one such morning, it isn’t hard to see where Pierce, recently crowned 2006 Milkman Of The Year, is coming from. The reason for our exchange is that a theory needs testing. In music industry circles, anyone assessing the hit potential of a tune has always asked whether the milkman can whistle it. That Procol Harum’s A Whiter Shade Of Pale is one such tune is beyond doubt. But what will Pierce whistle when I ask him to give me a burst of the song in question? Without so much as a pause, he purses his lips and trills the Hammond organ motif that eventually ushers in Gary Brooker’s vocal.

If this was how hotly contended disputes over authorship were resolved, this morning would see Procul Harum’s former keyboardist Matthew Fisher doing something other than travelling from his home in Croydon to the Royal Courts Of Justice, where summing up begins on his claim against Brooker. Who deserves to win? It’s tempting to go by appearances. With his unshaven, lank-haired Eeyore visage, 60 year-old Fisher looks every inch the opportunist with a cunning plan to secure himself a pop pension. Brooker too, looks like exactly what he is — the well-travelled, well-fed singer in a successful 60s act. If Fisher had such a pivotal role in the creation of A Whiter Shade Of Pale, why didn’t he contest the case in the intervening decades? It might be that in previous years, it was simply too much of a risk. Prior to 2000, he would have been faced with one of two choices: either to finance the lawsuit himself or pursue it with the help of legal aid. Either way, defeat would have almost certainly plunged him into debt. In recent years, however, the law has changed. New legislation has shifted the emphasis away from legal aid towards a free market solution. If they can find a lawyer who deems their case strong enough, musicians contesting copyright claims are now allowed to do so on a no-fee, no-win basis.

Pending a verdict, a lot of middle-aged songwriters might have good reason to be nervous about the outcome of the Procol Harum case and its ramifications. A Whiter Shade Of Pale is one of the first songs to come under close high court scrutiny since 2003, when violinist Bobby Valentino took The Bluebells’ guitarist and songwriter Robert Hodgens to court over Young At Heart — a song which reached number one after it was used in a Volskwagen advert. Valentino’s victory prompted industry solicitors Michael Simkins to warn of the precedent set by the case. “There will be more of these claims,” went a bulletin published by the company, “so music publishers beware. The only way to head off claims by session musicians is to…obtain appropriate clearance documentation [at the time the recording is made].” In other words, any publishing companies need to ensure that, ideally, guesting musicians sign away their share of the copyright of a song before they proceed to play a note on it.

At what point does a contribution to a song influence it so much that it effectively turns it into a collaboration? What attracts people to Eric Clapton’s Layla if it isn’t the seven-note hook that (the uncredited) Duane Allman came up with? Steve Nieve’s Abba-esque plinking famously sprinkled magic dust on Oliver’s Army — a song which, up until that point, Elvis Costello was considering for use on a B-side. And yet the song is credited only to Costello. Still, Nieve comes off well compared to Lindisfarne’s Ray Jackson, who came up with the mandolin part on Rod Stewart’s Maggie May only to receive £15 and a sleeve credit which read, “The mandolin was played by the mandolin player in Lindisfarne. The name slips my mind.”

Then, of course, there’s the matter of Baker St. Raphael Ravenscroft will comfortably be outlived by his saxophone hook on Gerry Rafferty’s biggest hit — and yet his name is nowhere to be seen on the writing credits. Rafferty’s own position is outlined clearly in the liner notes of his Greatest Hits CD entitled Right Down The Line, which claim that Ravenscroft was merely playing a hook that Rafferty had written for him. Tracking down Ravenscroft for his recollections of the session is by no means straightforward. It turns out that the saxophonist, now 52, is on a pilgrimage from Northern France to Santiago — walking up to 40km a day in a bid to retrace the route of Paulo Coelho’s self-empowerment bestseller The Alchemist. Baker Street, he says, came together when Rafferty presented him with a song that contained “several gaps”. What, then, does he think of the claim in the liner notes? “Gerry pushed most of his friends away a long time ago,” he claims. “If you’re asking me, ‘Did Gerry hand me a piece of music to play?’ then no he didn’t. In fact, most of what I played was an old blues riff.” Gerry was unavailable for comment.

After Ravenscroft recorded his part, he received a cheque for £27, which subsequently bounced. The cheque has now been framed and is hanging on his solicitor’s wall. “I’m sure Gerry’s lawyers have been waiting for me to shoot them since day one,” he adds, “But that’s not what I’m about. If I had received pots of money at that age [Ravenscroft was 19 when he played on Baker St], I wouldn’t have known what to do with it. It might have destroyed me.” If Ravenscroft has in mind Rafferty’s recent stay in Beechwood House — a rehab clinic run by the Church Of Scotland — he refrains from actually saying so.

Relay the saxophonist’s zen rationalization of his work on Baker St to Columbia Records’ MD and a smile spreads to a slow nod. Broadly speaking, Mike Smith’s position is that mere human decency can go a long way to forestalling songwriting disputes. “In the music industry,” he says, “it really is a case of what goes around comes around.” Prior to his current job, Smith spent two decades as a music publisher at EMI. One of the acts whose nascent efforts he nurtured was Blur. “Damon Albarn always came up with the basic idea for a song, but right from the beginning, he acknowledged the band’s contributions by splitting the royalties four ways. That was central to his notion of what Blur meant as a band. Interestingly, he’s continued to do that with Gorillaz — and that ensures you get a level of commitment from someone like [illustrator] Jamie Hewlett that you might not otherwise get. Because it becomes proper band rather than a singer and some glorified session musicians.”

Where bands are concerned this way of working seems to ensure a degree of longevity. Take, for instance, Radiohead. What else could have kept the other members of Radiohead on board throughout the panic attacks, depressions and ceaseless experimentation that besieged Thom Yorke during the making of Kid A and Amnesiac? Was it that they enjoyed long afternoons of dominoes whilst Yorke sat in a nearby room with a laptop trying to reinvent what it meant to be in a rock band? Or could it be that, at the end of even the most frustrating weeks, their faith was formalised in a stream of revenue that was split five ways?

Spandau Ballet didn’t chronicle the strange sense of existential dread which comes as standard on Radiohead albums. Nonetheless, the arrangement between their five members and those of Radiohead bore some similarities — with the whole band enjoying a share of Gary Kemp’s songwriting royalties. Following the band’s dissolution, however, it was an agreement that Kemp decided to revoke. Three members of the band responded by disputing his decision — among them saxophonist Steve Norman who contended that his solo on the True amounted to a co-composition. That Gary Kemp won is no surprise to Britain’s best milkman. Called upon to whistle a burst of True, Pierce opts for the first line of the song, adding, “I can’t even remember how the saxophone goes in that one.”

Even if you start out as best friends and split your royalties in perpetuity, the outcome isn’t always harmonious. Feeling that John Lennon was unfairly venerated as the cooler, edgier Beatle, Paul McCartney went to the trouble of collaborating with Barry Miles on a book Many Years From Now, which saw Macca in which he detailed what he did on almost every song credited to him and Lennon. Years later, he piqued Yoko Ono by asking her to switch around the credits to Yesterday, so that they read McCartney/Lennon.

Whether session musician or superstar, the same details resonate when musicians squabble over royalties. Former Bluebells singer Ken McCluskey says that what’s at issue here is recognition. As a music business lecturer at Stow College in Glasgow, McCluskey now specializes in alerting music industry hopefuls to the pitfalls that may lie ahead. “It was Bobby Valentino’s fiddle part that got used on the 1993 ad which prompted the reissue,” he recalls, “so I think he just wanted a wee pay-out by way of acknowledgement. But Robert [Hodgens, who wrote the song] didn’t see it that way. I don’t think it hurts in cases like that to just settle it quickly before it goes to court.”

Ravenscroft — who as chance would have it, had A Whiter Shade Of Pale played at his father’s funeral — echoes the sentiment. “All that those guys in Procol Harum are doing is handing over cash to lawyers — when being gentlemanly about it would preclude all of that. It should have never got to this stage.” But, of course, it has. Heaven knows what a whiter shade of pale looks like. But watch the faces of the former members of Procol Harum as the verdict is delivered and there’s every chance you’ll find out.

(This piece was first published in The Times in 2006)