The Smiley Smile Message Board

Any other estate would've been in litigation re: copyrights nanno-seconds after Stebbins' book was first published.
What estate can ignore the cash cow that YASB remains after all these years???

Time for new/better representation.

Get your money already.
http://www.vintagevinylnews.com/2014/02/ascap-celebrates-100-years-with-their.html

I've wondered about this every time I hear the song...it begs the question why has no claim ever been filed? Anyone who knows Dennis' sound and style could connect it, without even knowing the backstory.

Is there an answer why nothing has been done?

Who's going to file?
What's the chance a suit would win, with Billy and Dennis both gone?
what's the potential $$ vs the cost of making the claim? 

There's an excellent chance of winning and there's A LOT of money to be recouped -- bigger "longshots" have panned out in massive decisions (this isn't just my conjecture -- this is what industry vets have told me who would know.)

There are portions of the DW estate that are very hands off -- "what's past is past, let sleeping dogs lie," etc.

Then there's another faction that, let's just say, is NOT like that.
Knowing that, I'm amazed this hasn't happened yet.

#58 out of a list of #100 is tremendous.
The estate should stop futzing around with actors pretending to be Dennis, get his family that ton of dough that he stupidly gave away, and get his name on that song.

I'd answer the question who's going to file by first suggesting his kids, as one part of the "estate". But having said that, and reading the follow-ups, could it be a case where *if* a large claim is made and won, there might be some inter-family interests staking a claim on that award, and the potential for all kinds of people to emerge out of the woodwork so to speak claiming a family lineage and therefore rights to a portion of the money? Maybe the potential costs and trouble of sorting all of that out would outweigh the actual value of a settlement...or not, I'm just thinking out loud.

Remember what happened when James Brown died, and there were all kinds of women claiming they were entitled to a portion of his estate? I don't know if that's been settled yet.

Given the evidence and even on the basis of the overall sound of the song itself, it wouldn't be as difficult to stake a claim on the song's credits and back royalties/payments.

Consider every time that song is played, performed, or whatever at weddings every week of the year...the back payments for even partial credit would be staggering if the claim were to be filed in the right way.  :o

I don't know if they would be able to sue for back royalties/damages, seeing as how this isn't a copyright infringement case. What I think could easily be achieved is correcting the copyright and adjusting said publishing accordingly for future earnings -- which will prove substantial as this copyright isn't going anywhere soon. Last I heard, Preston's estate (i.e. publishing) was owned and controlled by his manager Joyce McRae -- the wife and manager of Sam Moore of Sam & Dave fame.

I should point out that when interviewing Carnie around the time of her lullaby LP in which she and Brian covered YASB, she had absolutely no idea that Dennis had a hand in writing it. She became very emotional (tearful and angry) at the fact that she and her father had been recording a work of Dennis' together and told me that she would look into the situation of the estate's position re: the copyright. I don't know if she followed through.

If I were in charge of Dennis' estate I would just want to see his name on the credits. I wouldn't worry about payment for back royalties.

There's a problem. The only 'evidence' that Dennis' state has is Billy Hinsche's testimony, who witnessed Billy and Dennis collaborating.

Is that a problem? The eye witness testimony of a 50-year, still working, well respected industry vet under oath. I'd take those odds if it was my fight.

Couple that with the affidavits of the dozens of friends, colleagues, and strangers he told he wrote the song to, several musicologist's expert testimony -- along with his history of substance abuse and other disastrous business decisions. There's a case.

Credible testimony from an eye witness is a problem?

I agree -- the case would be based on third-party accounts.  And on the other side we have Billy Preston on record denying it when asked point blank about it -- in fact not even recalling who Dennis was.  Lacking video, recording, or photos of the writing session, or a written lead sheet or lyric sheet, I think it would be a tough case.

Lee

I disagree.

Howie sounds as though there are a lot of indicia of Dennis' authorship.

Copyright is a "bundle of rights" and one right is to "perform the work" and it was performed.  And recorded on Knebworth in 1980.  Did Dennis pay royalties to perform it?

Was the inclusion on Knebworth sort of an indirect claim that Dennis wrote it?  He surely sang it as though he owned it.  I personally prefer this song to "Forever." To me it just screams "Dennis Wilson."

Expert testimony - absolutely.  Howie is correct.  People often write in a very identifiable style, which is why smart professors keep copies of term papers.  They KNOW when the work is "borrowed."  An expert witness could indicate if there was a certain style that Dennis' work had as a "unique characteristic." And, it appears that there are people who worked with Dennis and are familiarized with a "style" that's unique to him.

There may be a certain distinctive manner in which he phrased stuff that runs through his other work. I think of it as a sort of unique fingerprint.  It could be a "match" under the review of a expert musicologist.

And, there are many other questions that would be inquired upon.

(Not legal advice.)

Absolutely Filledeplage.

If the family wanted to pursue this it's triable and winnable. 

Lesser cases have been settled out of court.

Again just my own thoughts, but I think this could fall into a "listening test" situation, which is how similar cases regarding songwriting and crediting issues have been handled. It might not even need a musicologist providing an intellectual/technical analysis as much as it could be a case of playing this song and then playing other Dennis Wilson compositions in order to show the similarities. And it could be easily shown that the song and its various musical components are along the lines of other songs Dennis had written or cowritten during that time. Again, even someone with even half a musical ear could pick out those similarities.

That's how the whole He's So Fine/My Sweet Lord debacle ended up costing Harrison, basically the parties filing the claim couldn't prove Harrison deliberately nicked their song because they weren't there and there were no ways to prove he had done it. Yet when they played both songs back to back, the similarity was enough to win the case.

How about when Saul Zaentz sued John Fogerty for infringing on Fogerty's own trademark sound, basically suing the man for his own infringement? Fogerty had to demonstrate what "swamp rock" sounded like in court, if I recall that case's details, so again it wasn't a case of proving intent as much as going on what people listening to the songs perceived as they heard them, or heard the style, or whatever.

Even before knowing more of the details, didn't this song sound suspiciously like a Dennis Wilson song? It just had those quirky chords and unique melodic touches that suggested Dennis at least had a hand in writing it.

GF2002- Glad you mentioned He's So Fine/My Sweet Lord, and the listening back to back, because one standard is "substantial similarity" as between contested works.  Here, it isn't contested, in that way.  It is whether Dennis' or his estate "standing in his shoes," has a "property right" in the song, going to the authorship.

And, that would need to established, first. 

When I read the Happy Birthday song, in the list, I cracked up seeing it at #1 because it seemed to be in every single music book I ever saw, for any grade, in any school, and in the Music Education courses as well. 

If you were employing a "listening test" in this "You Are So Beautiful" case, what would be your first/best choice of Dennis Wilson songs to make your case?

And, how did Bruce Fisher's name get on the "You Are So Beautiful" writing credit?

Good question... Cuddle Up maybe?

Look, I definetly believe Billy Hinsche. But if Bruce Fisher decides to claim that he and Billy Preston wrote YASB all alone in a room.... There might be a problem. And I think he's alive.

Very interesting, and I'm curious to hear a professional/legal opinion on this.  :)

I think there is a more relevant precedent, with the case of organist Matthew Fisher, Procul Harum, and "Whiter Shade Of Pale". This was of course in the UK and eventually decided by the House Of Lords, so I'm not sure how these laws and standards might be different in British law versus US law, if there would be any difference regarding copyright claims, but here is the article and the copy-paste of the text.

I mention this because the case/claim was filed 40 years later, almost if not exactly the amount of time in question with "You Are So Beautiful" if a claim for that song were to be made in the next year.

Article link: http://www.theguardian.com/music/2009/jul/30/lords-ruling-whiter-shade-pale (http://www.theguardian.com/music/2009/jul/30/lords-ruling-whiter-shade-pale)

The musician who wrote the haunting organ riff in A Whiter Shade of Pale, the 1967 hit for Procol Harum that became part of the soundtrack of the last half-century, is entitled to future royalties, the House of Lords ruled today.

Matthew Fisher, now 61 and working as a computer programmer, had his case thrown out at an earlier stage of a tortuous legal process which has now lasted for more than four years, because he waited almost 40 years to claim the rewards for his unforgettable contribution to the sound of the first Summer of Love.

His doleful little tune was added to the song after the band responded to his advertisement in Melody Maker, boasting that he was the proud possessor of a rare Hammond organ.

Lawyers warned that his victory could open the floodgates to other belated claims by musicians who played on old hits.

Lawrence Abramson, representing Gary Brooker, the singer who wrote the rest of the music to famously inscrutable lyrics by Keith Reid, said: "The ruling will encourage a lot of other claims but it will not mean that they will all succeed. They will have to be determined on the facts but everyone in the same position as Mr Fisher will have a go."

Fisher has said he delayed so long because he was repeatedly told he had no hope, but was inspired to go to law after a landmark judgement in 2002 against Scottish band the Bluebells, when Bobby Valentino was recognised as composer of the violin solo on the 1984 single Young At Heart, for which he originally earned £75.

Fisher has always said he only wanted recognition for his work, and only sought royalties from the date he first sued in 2005. The ruling only applies to future royalties, but Abramson predicted any earnings would be swallowed up in legal costs, which have yet to be ruled on.

The ruling still left confusion over the song. "The Lords ruled that the terms of the recording contract in place at the time may well have the effect of depriving Mr Fisher from collecting royalties on the original recording.

"However, they expressly refused to make a definitive finding on the point. The judgment leaves both parties no clearer as to where they stand as to who can benefit in the future from royalties arising from the original recording of A Whiter Shade of Pale."

The single was a worldwide hit in 1967, but topped the UK charts for a modest six weeks. However it has been used on countless occasions, as the music for weddings and funerals, at product launches and in lifts, as well as on dozens of film scores. Earlier this year a BBC chart rated it Britain's most frequently played song in public places.

It has now made history twice more: in April it was played in the Palace of Westminster in the first time the law lords have been asked to rule on a pop song, and today they handed down their judgment on their last day before the new supreme court takes over.

Fisher won in the high court in 2006, lost the appeal in 2008, and has now had the original decision in his favour upheld. On his own website, he said he has been portrayed as "an intransigent and vengeful fiend", determined to drag Brooker through the courts. "This has been a long, painful ordeal for me and my family and I am glad that whatever the verdict, this case is now over," he said.

In your opinion(s), if the Wilson estate were to have Billy Hinsche who says Dennis was involved in writing, someone like Daryl Dragon who was there as Dennis wrote other songs, a music expert who could show similarities in sound and style, and the "listening test" comparing "Beautiful" to other Dennis compositions, could a strong enough case be made?

Yes, Bruce Fisher, who co-wrote "Will It Go Around In Circles" and "Nothing From Nothing" with Billy Preston, is still alive and kicking...

Has either Fisher or Preston written anything similar to You Are So Beautiful? HOnest question, as I am not familiar with either persons work.

Stories abound of how generous Dennis was and in all honesty I believe he would not have minded the success the song had for others. He probably got a kick out of it.

Is there any evidence he was interested in pursuing royalties or credit?

Those cases are not for what I'd call uncredited ownership, but whether Harrison copied "He's So Fine" for "My Sweet Lord." I just read it was "given" to Billy Preston. (Wiki)

But it was found that he "subconsciously plagiarized" the other song.  It was assessed for $1.6 mil in damages.  The court found the two songs "virtually identical." Even if you don't mean it, and subconsciously copy someone's work, you are "on the hook" as is said.

But the court didn't find that he deliberately intended to copy it, but that the Copyright Act did not require a showing of "intent to infringe" to support a finding of infringement.  There is an article that is sort of easy to understand.  abbeyrd.best.vwh.net/mysweet.htm  it was reprinted with permission.  There is a bunch of stuff if you put in the case number below.

The cases cited are 420 F. Supp 177. (1976) ...and it went to 944 F.2d 971 (1991) with two cases in between.  

This article in the section "The Question of Liability for Infringement" shows analysis of the two songs, and how there were repetitions of notes and "motifs" and that each side had expert witnesses.  I don't know what songs would be compared to establish that Dennis wrote YASB, but it would likely compare "Dennis' work against Dennis' work," to look for similar patterns, in notation and, perhaps lyric phrasing.  But, if challenged by the current "owners" against their "styles of composition" as well.  It is very complex and I won't speculate.

The court looked at mechanical royalties, performance royalties, sheet music, and Apple Records' profits.  And, it made the law school casebooks to show two things; first, no "intent required" for infringement of copyright, and, second, that copyright violation can occur subconsciously.

I wondered about Fisher's name as well.

My Love Lives On

There has never been any doubt that Fisher wrote the organ bit for 'A Whiter Shade of Pale'. It was acknowledged at the time (1967) and ever since, by all parties.

There is doubt, however, that Dennis co-wrote 'You Are So Beautiful'. Billy Preston denied it, Dennis -- as far as is known -- never claimed it. We have only Billy Hinsche's report, and that would never hold up in court, I'm afraid, without corroborating evidence.

GF2002 asked about Hinsche and Dragon as witnesses.  Could they be expert witnesses? Only the judge could decide that. 

Could they be eyewitnesses? Probably. 

Could the "other side" inquire into bias? Yup.

Could those to whom Dennis "allegedly" told that he (Dennis) was an author of YASB be a witness? Yup.

Are they subject to cross exam? Yup.

Interesting in the Bee Gee case, the Bee Gee's didn't have an expert witness. The plaintiff did.  It was Selle v. Gibb, 567 F. Supp. 1173. (N.D. Ill. 1983), aff'd, 741 F.2d 896 7th Cir. 1984).

I just read where iTunes has some program that analyzes music and had "spit out" striking similarities (substantial similarities) and Joyce Hatto (whom I never heard of) a pianist who released others' work as her own. Yikes!

At any rate, I would not discount any potential witness, and it won't be decided on this forum but "elsewhere" in the event a claim is lodged.  Billy could have "personal knowledge" and could have been an eye witness, as well as Dragon. And, Dennis reportedly told numerous others that he was an author.  He performed it. Did anyone come looking for royalties? An author can perform his or her own work without paying royalties.  And, maybe because he was a lefty, he might have done things in an unconventional manner, that they were familiarized with. I don't know. 

Too many questions and not a lot of answers. And someone with "standing" has to make the claim, anyway.  That would generally be an owner or the estate. I'd love to see Dennis' work properly credited and attribution accorded if, in fact, he wrote it.  And, I don't think I'm alone.  ;)

Untrue. The only reason I asked Billy Hinsche about this when I interviewed him for the Real Beach Boy book back in '98 is that I'd heard from other family members and collaborators that Dennis insisted he'd co-written the song. Since the story had never come to light publically i was still thinking it was probably a tall tale. So...I put it to Hinsche this way..."Dennis told **** that he co-wrote YASB. He must have been joking right?" Hinsche's response was "No...it's true. I saw it happen. I was there." He went on to tell me about the night it occurred. And that's how his story became part of the record. I pursued it only because so many people had been told by Dennis that he'd written the song. In fact time and time again when i'd mention YASB to insiders, they'd say..."well you know Dennis had a hand in writing it." And then they'd go on to explain how, or under what circumstances Dennis had shared this info with them. All varied timing and places, different eras...but very consistent in that he said he co-wrote the song.

Sorry, I meant that Dennis had never claimed, as far as I'm aware, publicly -- in an interview or something -- that he co-wrote it. In other words, he's not on the record claiming authorship. That would be a major complication in any lawsuit, I would imagine.

Yes, no public statement from him that I'm aware of. I think he was kind of humble about it, and just shared the fact with people close to him...but I was surprised at how many of them did know this, considering it had never been talked about by any BB's historian or journalist until '98 or so. Billy H is pretty firm in his assessment that Dennis was not interested in pursuing credit, he just made the song his own by singing it so often, that was his way of taking ownership. But as Howie points out that is not helpful to his heirs.

 In that case, I think it goes right back to: do the heirs care enough to risk any up-front $$ outlay to file the suit and follow it thru, based on possibly( probably?) winning a partial rights ownership and subsequent $$.
 NOT up to us, and, it doesn't appear the heirs have been too concerned  to date.  It would be a nice feather for Dennis, but I don't see them taking the time

The lawyers would do all the work, not the family.  Sounds like an interesting case.

I'm sorry if this may sound stupid, as I'm not too familiar with this particular subject, but...

What exactly was Bruce Fisher's contribution to You Are So Beautiful. I'm aware of Dennis's and Billy Preston's, but what about Bruce?

Howie had asked me to chime in on this, and I had to give it some thought, as both he & Jon know I'm not the most credible witness on this subject.  See, Dennis had a way of convincing you not only that he created the world, but that he owned it, too!  And there were times I bought it, and times I watched the public buy it - witness the films of him performing this song!
Bottom line, even when I knew the cars that he owned, the houses, and sometimes even the songs, (like "Never Learn Not to Love"), were rented, it never mattered, because he left his imprint on everything he touched...  Somehow, in my memory, he was performing the song before I heard him say that he'd written it, and things were moving so fast at that point that I thought it might just be another of his, shall I say, Jon Lovitz moments...  However, I know the exact time period Billy Hinsche is referencing that Dennis & Billy wrote this, when Dennis was 'hiding away' in a bungalow in The Beverly Hills Hotel.  Many magic moments around his upright in that room, and it's impossible not to hear him in that song...  

Does it sound like any other song Billy Preston wrote ? No.

Does it sound like a Dennis Wilson song ? Hell, yes.

I used to have a copy of Preston's version and, well, it sounded dire, like it missed the mark by 10,000 miles…

Here is "You Are So Beautiful" by Billy Preston:

http://youtu.be/xrxWnM6sLTw

It's interesting that Dennis Wilson never recorded the song. Or did he? ??? :o

Pretty sure the only versions of the song by Dennis are live. If there was a studio version, seems like it would have come out at some point. Would love to be proven wrong on this  ;D

Ah, well, it's only a few short years since an entire album landed on our shelves laden with unheard stuff.  Guessing Jon or Craig might have an answer but maybe they're saving it for the next book or the next CD release!

Yup, that's it… bloody awful. Seems to me Dennis had a keen eye for the potential in something that had previously been handled very wrongly.  He'd spot a diamond in a muck heap.

The lawyer only submits what he/she is presented, in terms of fact and circumstances.  The more reliable evidence and info they have, the stronger the case is.  In other words, the client/s do a ton of work as well. 

The more the clients do, the better positioned the lawyer is to present the "package."  And, prevail. They are a team.  ;)

Attorney for Billy Preston's Estate: Mr. Hinsche, what was your relationship to Dennis Wilson?

Billy Hinsche: Dennis Wilson was my friend. I recorded and played keyboards alongside Dennis in The Beach Boys for several years. My sister, Annie, was married to Dennis' brother, Carl Wilson. Dennis and my father, Otto, used to go on fishing trips together. I was and am a great admirer of Dennis Wilson and his music. I produced and directed a documentary film on Dennis Wilson called Dennis Wilson Forever.

Attorney for Billy Preston's Estate: No more questions, your honor.


Attorney for Billy Preston's Estate: Mr. Fisher, what was your involvement with the composing of "You Are So Beautiful"?

Bruce Fisher: Billy Preston and I wrote that song in A & M Studio in Los Angeles in 1974.

Attorney for Billy Preston's Estate: But, the version you and Billy Preston recorded sounds nothing like the popular version recorded by Joe Cocker. Mr. Cocker's version sounds like something Dennis Wilson would've composed. 

Bruce Fisher: Except the version that everybody says sounds like Dennis Wilson, the Joe Cocker hit record version, wasn't arranged by Billy Preston. It was produced by Jim Price, and Jim Price wasn't at no party with Billy Preston and Dennis Wilson!

Attorney for Billy Preston's Estate: No more questions, your honor.

Witness examination has four parts:

1 - Direct exam

2- Cross examination

3 -Re-direct

4 - Re-cross

And the lawyer gets to pose the questions as to being a member of the band, for how long, what a person who was basically considered a "drummer" was doing "composing" and whether there were certain similar qualities that ran through his style going from "concept to finished product."  Did he learn from Brian, was it self-taught, etc...

So, the "no further questions" as to "bias" are absolutely appropriate, the questions would likely go deeper into why anyone (not just Billy) would notice a certain style or manner of doing things that was unique.  And, he is an industry professional.  He observed songwriting on many levels.  So, beyond the obvious "bias" he still could have a great and solid foundation as an historian of Dennis (and Carl's) work but able to demonstrate a dimension that was unique to Dennis and he certainly appears to be able to place him "at the scene of the crime."

The court want to know "what he knows." And the rest of the stuff, such as bias, establish a context.  Is he credible? Does he have facts? It all comes out in "the wash."

Sheriff - I'm so glad you posted that.  Many "devils' advocates" to explore all kinds of scenarios are a good thing!  ;)

I would love for you to be proven wrong on this too. I'll remind everyone that Stephen Desper once posted on this very board that he recalled Dennis developing the YASB song, or progression in the studio in the early '70's...no hard evidence, just a seemingly vague recollection, and as many would point out Dennis tended to play things with slight differences that were fundamentally alike. His recollection could be of an early exploration of one of the other things like I've Got a Friend or Cuddle Up that explore similar ground. But maybe not. if a pre-'74 snippet on tape showed up with an identifiable YASB line, or chord change...well then this all moves from gray area to something more black and white.

As a lawyer and someone who has spent quite a bit of time with Billy I suggest he would be a very creditable witness. Add other witness testimony and some 'expert' composer testimony and you have the makings of an arguable case.

Sheriff's fictional courtroom makes a lot of sense. Dennis' version sounds like Joe's, not Billy's.