Procol Harum's Former Organist Reclaims Rights To Copyright In 1960s Hit 'A Whiter Shade Of Pale - Matthew Fisher v Brooker And Onward Music, House Of Lords...

The former organist of Procol Harum, Matthew Fisher, has won his appeal in the House of Lords to reclaim 40 per cent of the royalties to the musical copyright in the classic 1960s hit 'A Whiter Shade of Pale'. Fisher, a classically trained musician, was a member of Procol Harum from 1967 to 1969. He had been recruited to contribute solo sections on the organ. Fisher's claim, first made in 2005, was that the organ part of the song was wholly his invention and that he was, therefore, joint owner of the copyright of the work and entitled to a share in the authorship of the overall work. Brooker had composed the music and Onward Music Ltd had acquired the copyright to the words and music of the song in 1967.

The House of Lords found that Fisher's interest in the music copyright could have only been impliedly assigned to Onward Music if it had been obvious to both parties at the time that Fisher's interest was being assigned or if the commercial relationship between them could not sensibly have functioned without such an assignment. These requirements could not be demonstrated as there was no evidence that Fisher knew that the song in its original form had been assigned to Onward Music prior to the addition of the solo sections on the organ. In any event, it was also unlikely that any implied contract would have been for an outright free assignment of Fisher's interest without any payment for the assignment. The House of Lords found that the Court of Appeal's decision deprived Fisher of the ability to seek both injunctive relief and claim any royalties in respect of the exploitation of the music of which he owned 40% of the musical copyright.

The House of Lords ruled that a court could not accept that Fisher had 40% of musical copyright in the song but then refuse on equitable grounds to grant declaratory relief. The mere passage of time - in this case 38 years - could not itself undermine Fisher's claim said the House of Lords. To bar Fisher's claim Brooker and Onward Music would need to rely on 'laches': an equitable defence that Fisher was no longer entitled to his original claim because of his delay in bringing it. However, the defence of laches could only bar equitable relief and not a declaration of the existence of a long term property right recognised by statute. The House of Lords concluded that Brooker and Onward Music could not show any prejudice had resulted from the delay and, even if they could, the benefit they had obtained from the delay would outweigh any such prejudice. The House of Lords concluded by reinstating the declarations made by the High Court that Fisher was co-author of the music, he was the joint owner of the musical copyright in the work, his share was assessed at 40 per cent, and his licence for Onward Music to exploit the work had been revoked in 2005 when he staked his claim. He had therefore been entitled to royalties from that point onwards.

Samantha Lloyd, assistant editor of Upload IT, comments: 'This case illustrates just how important it is for record companies and artists to ensure that any contract assigning musical copyright covers both the original composition and any subsequent variations that may attract separate rights.'

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Paul Gershlick

Matthew Arnold & Baldwin

21 Station Road,

Watford

Hertfordshire

WD17 1HT

UNITED KINGDOM

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URL: www.mablaw.co.uk

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