THE JOURNEY IS THE REWARD – WHITER SHADE OF PALE

A decision, unlikely to be popular with record companies and music producers was handed down by the The House of Lords, prior to becoming the Supreme Court, in Matthew Fisher v Brooker and others, a case dealing with copyright in the famous song “A whiter shade of pale”. The House restored the declarations made by the High Court at first instance in favour of Matthew Fisher, the former organist in the band Procol Harum. The case is of interest not only to older music fans, but to lawyers because of the substantial delay in time between the events given rise to the Action and the Action itself being brought. The song was released in 1967 and Matthew Fisher’s contribution is the well-known introduction which is repeated at various points in the song. Fisher left the band in 1969 and commenced action in 2005 seeking various declarations in respect of the copyright.

At first instance the High Court made the following three declarations in favour of Fisher, rejecting the Defendants’ arguments based on delay, laches and acquiescence:

  1. Matthew Fisher was the co-author of the song.
  2. Matthew Fisher was a joint owner of the musical copyright in the song and the Court assessed his share as being 40%.
  3. The Defendants’ licence to exploit the song was revoked on 31 May 2005, the date when the action was started, 38 years after the initial release of the record.

This meant that Matthew Fisher would be entitled to receive ongoing royalties and could theoretically seek an injunction to prevent further exploitation of the song. A claim for past royalties was rejected.

The Defendants appealed the decision. The Court of Appeal upheld the first declaration but allowed the Defendants’ appeal on the other parts, holding that Fisher’s “excessive and inexcusable delay” before bringing a claim, and his acquiescence in the Defendants’ commercial exploitation of the song meant that it was unjust that he should succeed in his claims to a joint interest in the song or to have the implied licence revoked.

The House of Lords overturned the Court of Appeal’s decision on the basis that it would be wrong and inconsistent to conclude that Mr. Fisher was not estopped from asserting his copyright interest, but then to refuse on equitable grounds to declare that the right existed. The Court of Appeal had based its decision on the basis that it would be inequitable for Mr. Fisher to seek an injunction to enforce his rights and to prevent this they had overturned the second and third declarations.

However, the House of Lords said this was incorrect noting there was nothing under English law which set a time deadline for laying claim to ownership of copyright and noted there is no equivalent doctrine of adverse possession as in land law. In addition the Lords said there was a crucial distinction which exists between “the exercise of rights and the obtaining of discretionary remedies”. If and when Fisher sought an injunction to restrain an alleged infringement of his copyright, such an application would be dealt with on its merits.

This was different and separate from the declaration as to what rights Matthew Fisher had and his future benefit from those rights. The Court of Appeal’s decision deprived  Fisher of the ability not only to seek injunctive relief, but also to claim any royalties in respect of the exploitation of the work, of which he owned 40% of the musical copyright.

The Lords also rejected the Defendants argument based on laches (delay) on the basis that firstly laches could only bar equitable relief, and a declaration as to the existence of a long-term property right, recognised as such by statute, was not equitable relief.  Secondly, the Defendants could not show any prejudice resulting from the delay, rather they had actually benefited for almost 40 years with Fisher not taking his share of royalties and even if prejudice could be showed, it was outweighed by the benefit.

The decision is unlikely to be popular with record companies and music producers and it demonstrates the importance of ensuring in negotiations between recording companies and artists that clear contractual documentation is in place dealing with the ownership of rights and any subsequent versions. 

From a legal aspect, the decision is important as the House of Lords made clear there is a difference between the exercise of rights laid down by statute and the granting of discretionary remedies. The decision also shows that in the right circumstances, even extreme periods of delay may not bar claims to copyright.

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