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E-BULLETIN | 30th July 2008

A whiter shade of pale: Gary Brooker & Onward Music Limited v Matthew Fisher
The Court of Appeal has overturned a High Court ruling that Matthew Fisher, the organist in the band Procul Harum, was entitled to a share of the copyright in the
famous song “A Whiter Shade of Pale”.

First Instance Decision

In the High Court action, Fisher sought the following relief:

1. A declaration that he was a co-author of the musical element of the most popular version of “A Whiter Shade of Pale” (the Work) which was an arrangement
of an earlier version of that song demoed by Brooker. This was despite the fact that the Work was written in 1967 and that Fisher had waited some 38 years
until 2004 before claiming that he wrote a significant part of it.
2. A declaration that he was entitled to a 50% share of the musical element of the copyright in the Work (ie 25% of the whole Work).
3. An injunction preventing Brooker and Onward Music from exploiting the Work in the future without Fisher’s consent.

The High Court ruled that:

1. Fisher was a co-author of the Work; but

2. his contribution to the Work merited only a 40% share of the musical element of the copyright in the Work (ie 20% of the whole Work);
3. an injunction was unnecessary because the judge could not see that there was any intention on the part of Brooker and Onward Music to continue to exploit
the Work in defiance of Fisher’s interest; and
4. an implied licence had existed in favour of Brooker and Onward Music to exploit the Work in the past but this was revoked as of 31 May 2005.

Appeal Issues

Brooker and Onward Music appealed, arguing that the declarations granted in the High Court should be set aside because:

1. Fisher did not own any copyright in the Work because there had been an implied assignment of it to Onward Music’s predecessor, Essex Music Ltd;
2. the terms of a recording contract between Essex Music and the members of Procul Harum (including Fisher) provided that Essex Music had rights in records
embodying the band’s performances (including their performance of the Work);
3. unfair consequences would follow if the declarations were allowed to stand; and
4. the High Court should have allowed Brooker and Onward Music to rely on the defences of acquiescence, laches (delay) and estoppel and the passage of
time had made a fair trial impossible.

In a complicated judgment, the Court of Appeal held, by a majority of two to one, that the appeal against the declarations as to ownership of copyright and the
revocation of the implied licence should succeed but that the appeal against the declaration that Fisher was a co-author of the Work failed.

(1) Implied Assignment

All three Court of Appeal judges agreed that, since the copyright in the demo version of the song was assigned to Essex Music before Fisher made any creative
contribution to it, the making of the Work was an arrangement of the demo version of the song which would therefore have infringed Essex Music’s copyright
unless Essex Music had consented to it. However, since the band was recording the Work so that Essex Music could release it, a licence from Essex Music to the
band to make the Work was implied.

Similarly, as the copyright in the Work was owned in part (in accordance with the High Court’s ruling) by Fisher, then Essex Music could not have exploited the
Work without Fisher’s consent.

Brooker and Onward Music argued that the implied licence to the band from Essex Music to make the Work must have been on the basis that the copyright in the
Work was assigned to Essex Music.

The Court of Appeal disagreed. It held that Essex Music had required the consent of the copyright owners to exploit the Work, but this took the form not of an
assignment but of the licence that the High Court had declared was revoked as of 31 May 2005.

(2) Recording Contract

The Court of Appeal judges agreed with the High Court that the recording contract dealt with the right to exploit the band’s recorded performances so was
irrelevant to the issue of authorship and ownership of rights in the Work.

(3) Unfair Consequences

Brooker and Onward Music argued that the effect of the declarations was unfair because, for example, Fisher would be in a better position now after 38 years of
silence than he would have been if he had claimed an interest in the Work in 1967. This was because Onward Music and the band could have re-recorded the
song without Fisher’s contribution had they known that Fisher had co-written the Work. This opportunity was now lost to them. The Court of Appeal did not believe
it necessary to come to a decision on these points given the majority ruling on the issues concerning acquiescence, laches and estoppel.

(4) Fair Trial, Estoppel, Laches and Acquiescence

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The Court of Appeal agreed that the High Court was best placed to decide whether a fair trial was possible. The estoppel argument was based on the fact that
Fisher’s silence over such a long period of time encouraged Brooker and Onward to assume, to their detriment, that Fisher had no claim to rights in the Work.
Given this, Fisher should not now be entitled to claim any rights in the Work. However, this argument failed because the defendants could not show that they had
relied, by acting to their detriment, on the fact that Fisher had claimed no interest in the Work during the previous 38 years.

However, the appeal judges differed in their findings in relation to aquiescence and laches.

In his dissenting judgment, Mr Justice Richards agreed that the elements required in order to rely on the defence of laches were all present, but he said that
laches, and the closely linked defence of acquiescence, are defences to a claim for equitable remedies. Since the declarations sought by Fisher were not equitable
remedies (unlike an injunction) these defences were not available to Brooker and Onward Music.

The judge said that the declarations were not sought with the intention of obtaining an injunction against the defendants. Fisher could sue for damages if his rights
were ignored by the defendants, collecting societies and other third parties.

The defence of acquiescence required some change of position on the part of the defendants (albeit that this requirement falls short of detrimental reliance) which
he could not find in any of the circumstances, given that Fisher was not seeking payment in respect of any exploitation of the Work before 31 May 2005. There was
no consideration given to support the defence of acquiescence, so that failed too.

Lord Justice Mummery and Sir Paul Kennedy disagreed. They found that the High Court should have held that the defences of laches and acquiescence were
available to the defendants. To wait for 38 years before bringing his claim amounted to unconscionable behaviour on Fisher’s part. They also took account of the
difficulties in trying to go back and restore the parties to their original positions.

They argued that the defences applied to the declarations because the object of the declarations was ultimately for Fisher to obtain a final injunction or threaten an
injunction against Brooker and Onward Music if Fisher’s rights were infringed.

The majority of the Court of Appeal also held that Fisher’s implied licence to exploit the Work was not revoked.

Conclusion

The decision of the majority of the Court of Appeal means that, whilst Fisher is a co-author of the Work (something which Lord Justice Mummery believes to be of
value) he is not (as would ordinarily be the case) to be regarded as a co-owner of the copyright in it. The question is, how was his copyright wrested from him? The
answer appears to be that this occurred at some point over the 38 years between making his contribution and commencing proceedings by his failure to stake his
claim to ownership, even though this caused no detriment to the defendants. This is to be compared with the Court of Appeal decision in Hodgens v Beckingham
where a writer obtained a declaration that he was a joint author and joint owner of the copyright in the musical work “Young At Heart” after a delay of 9 years. Mr
Justice Richards likened Fisher’s situation, whereby he had co-written the Work but through the passage of time had somehow lost his share of copyright in it, to
somebody who has lost a property by adverse possession.

Further, there would seem to be little point in holding that the implied licence subsists beyond 31 May 2005. If Fisher does not own a share of the copyright, what is
the point of it continuing?

It remains to be seen whether this dispute will go to the House of Lords.

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SEE ALSO:
“A Whiter Shade of Pale” Hammond organist wins copyright interest: Matthew Fisher v Gary Brooker and Onward Music (/a-whiter-shade-of-pale-hammond-
organist-wins-copyright-interest-matthew-fisher-v-gary-brooker-and-onward-music/)
Bobby Valentino wins in the Court of Appeal: Hodgens v Beckingham (/bobby-valentino-wins-in-the-court-of-appeal-hodgens-v-beckingham/)
Bobby Valentino wins share of copyright in the Bluebells’ Young At Heart: Beckingham v Hodgens (/bobby-valentino-wins-share-of-copyright-in-the-bluebells-
young-at-heart-beckingham-v-hodgens/)

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Author
Stuart Barry (/people/stuart-barry/)
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