42 years after playing the memorable organ solo on “A Whiter Shade of Pale”, ex-Procol Harum organist Matthew Fisher has finally been awarded a share of the song’s royalties. Despite penning the melody from the British band’s most popular song, Fisher was never acknowledged as one of the song’s authors. Now, in one of the final House of Lords decisions ever before they reform as the British Supreme Court, Fisher has been awarded a 40% stake in the iconic 1967 track.
The circumstances surrounding the creation of the work are that Gary Brooker, one of the main songwriters for the band and a defendant named in the case, wrote the underlying music but Fisher wrote and performed the introduction and organ solo. The song was a massive hit and helped propel the band to an almost cult-like status. The intro is instantly recognizable to rock fans and the solo is regarded by many keyboardists and music lovers as legendary. Though he did periodically ask Brooker for a share of the royalties Fisher never made a claim until 2005, 38 years after the release of the record.
At trial Blackburne J. awarded Fisher a (somewhat arbitrary) 40% share of the copyright in the music. A key issue raised was whether Fisher had, through the passage of time, surrendered any rights he might have had through estoppel, acquiescence or laches. For various reasons the Court rejected these defences and awarded Fisher a non-retroactive interest.(Fisher v. Brooker and others [2006] EWHC 3239 (Ch)) The Court of Appeal overturned this decision in 2008, holding that Fisher had given Brooker and his publisher an implied license over the years and this prevented him from asserting any joint copyright interest. (Brooker and others v. Fisher [2008] EWCA Civ 287)
On July 30, 2009 the House of Lords overturned the Court of Appeal’s decision, holding that a) there was no implied license between Fisher and the publishers assigning them all the rights to the arrangement, b) Fisher was not estopped from asserting his property right by injunction. The second point was a key factor in the Court of Appeal’s decision; they felt that it would be unconscionable to allow Fisher to order an injunction given that the publishers had been operating on the license for almost 40 years. Lord Neuberger rejected this, holding:
[It] seems to me that, save in a very unusual case, it would be inconsistent to conclude that a claimant was not estopped from asserting his copyright interest, but then to refuse, on equitable grounds, to declare that the right existed. It is possible that there may be cases where such a course could be appropriate, but it would require wholly exceptional facts. As my noble and learned friend, Lord Mance said, if, as the Court of Appeal accepted, Mr Fisher originally had 40% of the musical copyright in the work and is not estopped from asserting it, then it is hard to see how he could be prevented from bringing proceedings simply for financial compensation or injunctive relief on the ground of copyright infringement. The refusal to grant him declaratory relief because he might seek an injunction on the back of it therefore seems to be questionable as a matter of principle. (Fisher v. Brooker and others [2009] UKHL 41)
The Procol Harum case raises some interesting questions regarding the blurry line between composition and arrangement. Brooker had after all already written the basic song, recorded a demo tape and assigned the publishing rights away long before Fisher ever stepped in front of the organ. This case has the potential to open the floodgates for all sorts of musicians who played on tracks and contributed notable musical flourishes or riffs. Also, it was somewhat arbitrary how the trial judge calculated Fisher’s share at 40%. He seemed to figure it should be less than 50% but more than 33%, and came up with a nice round number. The whole solo and intro only last 24 bars total out of a 4 minute song, and were both built on top of Brooker’s chord progression. Though Fisher clearly contributed something to the composition was it really worth 40%? It’s definitely a funny grey area of authorship and it should be interesting to see if any other musicians come out of the woodwork as a result.