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Right that doesn't pale

14 September 09

The House of Lords has emphasised the nature of intellectual property as property in upholding a claim to copyright in a song written 40 years ago

by Robert Buchan

On 30 July 2009 the House of Lords gave judgment in the high profile Procol Harum copyright dispute, Fisher v Brooker [2009] UKHL 41, one of the last to be delivered by the House prior to replacement by the new Supreme Court of the UK. The Lords overturned the Court of Appeal and awarded a portion of future royalties to the band’s former organist from the 1967 chart-topping song “A Whiter Shade of Pale”.

Whether the ruling is regarded as an appropriate swansong is likely to depend on which segment of the music industry one is involved in. On a positive note, the Lords did stress that intellectual property is an important form of property that must be fully protected by the courts.

Copyright owners

The music to “A Whiter Shade of Pale” was composed in 1967 by Gary Brooker with lyrics by Keith Reid. In March 1967, they assigned their copyright in the song to Essex Music Ltd (now Onward Music Ltd). Shortly after, they formed the band Procol Harum, which Matthew Fisher joined as an organ player. He subsequently composed the unique organ solo. The song, incorporating Fisher’s material, was recorded and released in May 1967. Procol Harum (including Fisher) then entered into a recording agreement with Essex.

In 2006, some 39 years later, Mr Justice Blackburne in the High Court held that Fisher was indeed the co-author of the recording as well as joint owner of the musical copyright, a share assessed at 40%. Further, Brooker and Onward’s implied licence to exploit the song was revoked when Fisher began proceedings in May 2005.

On appeal the Court of Appeal agreed that Fisher was a co-author and joint owner of the copyright, but held that he was not entitled to financial relief or to revoke the implied licence as there had been an “inexcusable delay” in asserting his rights.

Implied assignment?

Brooker and Onward argued that all parties, including Fisher, were happy for Essex to be the sole owner of the copyright. Lord Neuberger stated that for this to be the case, Brooker and Onward would need to show that it was then obvious to Fisher that his interest in the musical copyright was being assigned to Essex, or that the commercial relationship between the parties could not otherwise have functioned. Such issues were largely factual and for the trial judge to evaluate, but had not been established at trial.

The Lords also noted that even if there was some sort of implied assignment, it was very unlikely to have been an outright free assignment of Fisher’s entire interest in the musical copyright.

The judge at first instance did not accept that by executing the recording contract, Fisher assigned his share of the musical copyright in the work to Essex, and the Lords agreed.

Effect of delay

Brooker and Onward also invoked the equitable doctrines of estoppel, laches and acquiescence, arguing that, because of Fisher’s excessive delay in raising a claim, he should be prevented from claiming a share of copyright in the song. The Lords’ view was that to succeed in this argument, Brooker and Onward would have to show that they reasonably relied on his having no such claim, that they acted on that reliance, and that it would be detrimental if he was now allowed to enforce that claim.

The Lords found that Fisher’s delay had actually been to Brooker and Onward’s considerable financial benefit, and no evidence was produced at trial that they would have acted any differently if Fisher had made his copyright claim in 1967, or in 1969 when he left the band. They also commented that the Court of Appeal should not have been influenced by Fisher’s motive for bringing the claim when deciding whether the judge was right to grant declarations.

Importance of protecting IP Lord Hope commented: “There is no concept in our law that is more absolute than a right of property. Where it exists, it is for the owner to exercise it as he pleases. He does not need the permission of the court, nor is it subject to the exercise of the court’s discretion. The benefits that flow from intellectual property are the product of this concept… These are rights which the court must respect and which it will enforce if it is asked to do so.”

The ruling thus awarded future royalties to Mr Fisher. Whilst this will provide comfort to copyright owners, it does not in any way detract from the importance of having clear contracts in place to avoid such disputes.

In an era where many bands are involved in lucrative comebacks, it will be interesting to see whether, as some in the music industry fear, Mr Fisher’s victory has opened the floodgates to other belated claims by musicians who played on old hits.

Robert Buchan, Associate, Maclay Murray & Spens LLPL

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