Fisher v Brooker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,MR JUSTICE DAVID RICHARDS,SIR PAUL KENNEDY,Lord Justice Mummery |
| Judgment Date | 04 April 2008 |
| Neutral Citation | [2008] EWCA Civ 287 |
| Docket Number | Case No: A2/2007/0157 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2008 |
[2008] EWCA Civ 287
Lord Justice Mummery
Mr Justice David Richards and
Sir Paul Kennedy
Case No: A2/2007/0157
HC05CO1374
In The Supreme Court Of Judicature Court Of Appeal (Civil Division)
On Appeal From The High Court Of Justice Chancery Division
Inellectual Property
Mr Justice Blackburne
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Baldwin QC and Ms Jessie Bowhill (instructed by Harbottle & Lewis LLP) for the Appellants
Mr Iain Purvis QC and Mr Hugo Cuddigan (instructed by Jens Hills & Co) for the Respondent
Hearing dates : 3 rd & 4 th October 2007
Introductory summary
“A Whiter Shade of Pale” is placed high in lists of the greatest songs of all time. Procol Harum's record in May 1967 was an instant smash hit. Sales ran into millions. The musically literate judge, who tried this case, knew it. He held that the song had achieved cult status. There are over 770 versions of it. The introductory bars are used as mobile phone ring tones. The melody would even strike a chord with an unworldly judge in its echoes of JS Bach, Wachet Auf and the second movement of his Keyboard Concerto No 5 in F Minor.
Who wrote the music? Who owns the copyright? These are the questions in the case. Since it first entered the charts 40 years ago “A Whiter Shade of Pale” has been exploited on the basis that Gary Brooker wrote the music and that the publishing and record company, to which he sold the rights, and its successor possessed and controlled the copyright. The registrations with the societies responsible for the collection of copyright royalties for performing rights and mechanical recording rights and the payments and distributions of royalties and fees have been made on the same shared and uncontested understanding.
On 31 May 2005 Matthew Fisher, who was a member of Procol Harum between 1967 and 1969, started this case against Gary Brooker and Onward Music Limited (the defendants). He claimed that he composed a significant part of the music, as recorded by the band in May 1967. A letter of 19 March 2004 from his solicitor to Gary Brooker's manager, Chris Cooke, mentioning a “writer's share” was followed a year later by his first clear assertion of a legal claim in the letter sent by his present solicitors to Gary Brooker on 14 April 2005. In the 38 years after the issue of the record Matthew Fisher played no part and had no say in the exploitation of the copyright in the music. He neither claimed nor received payment of any royalties earned from it. In the action he did not claim damages or an account of profits from the defendants for infringement of copyright by unauthorised use of the music before the commencement of the action. He confined his claim to declarations of the court as to his contribution to the music on the 1967 record, his joint interest in the copyright and the size of his copyright share. At the trial questions also arose about an implied licence for past exploitation by the defendants and the need to obtain his prior consent for exploitation after 31 May 2005. He made an unsuccessful application for an injunction.
The claims largely succeeded in the court below. The defendants appeal from an order of 20 December 2006 in which, after a six day trial, Blackburne J made a series of declarations to the effect that (1) Matthew Fisher is the co-author of the music of “A Whiter Shade of Pale”, as recorded by Procol Harum and released as a single on 12 May 1967 (the Work); (2) he is a joint owner of the musical copyright in the Work, his share being assessed at 40% ; and (3) the licence of the defendants to exploit the Work was revoked on 31 May 2005 (i.e. 38 years after the initial release of the record.) Although declaration (3) was not claimed in the action, an agreement was apparently reached between counsel after judgment that a declaration should be included in the order to reflect the judge's decision on the points of implied licence and revocation.
The judge ordered an enquiry as to damages in relation to the exploitation and licensing of the Work subsequent to 31 May 200He dismissed a restitutionary claim for past royalties on the ground of implied licence. He refused to grant an injunction against the defendants restraining future exploitation on the ground of absence of a threat to infringe his copyright. No cross appeal has been brought against the dismissal of the restitutionary claim and of the injunction application. The judge ordered the defendants to pay 90% of the costs of the action.
The judge gave two reasons for granting permission to appeal: (a) the unusual nature of the claim (i.e. one brought nearly four decades following the events giving rise to the claim and without having made a claim in the intervening period to be acknowledged as a joint author, which the judge thought was “quite extraordinary”); and (b) the insistence of the defeated defendants that the decision would have a widespread and dire effect on the way that the music industry has operated in the past.
Issues in appeal
There are four main issues in the appeal. The first two are by far the most important to the parties and generally.
First, excessive and inexcusable delay. The defendants failed on their equitable defences of acquiescence, laches, delay and proprietary estoppel, and in their related contentions that the passage of time had made a fair trial impossible and ought to disqualify Matthew Fisher from any discretionary declaratory or equitable relief.
Secondly, implied assignment of the copyright in the Work as an arrangement. This issue centred on the point that the music, as performed and recorded by Procol Harum in May 1967, was an authorised arrangement of music previously composed by Gary Brooker on his own, recorded by him on a demonstration tape (a demo) and assigned by him to Essex Music Limited (Essex Music, the predecessor in title of the defendant Onward Music Limited) on 7 March 1967. This happened before Matthew Fisher could have made any contribution to the composition of the Work. Matthew Fisher does not claim any rights in music composed before he joined Procol Harum. His claim is to a joint interest in the copyright in the Work as an arrangement of the music previously composed by Gary Brooker. The arrangement was improvised during the course of the band's rehearsals for the record released on 12 May 1967.
The judge held that the pre-existence of Gary Brooker's music on the demo tape did not provide the defendants with a defence to Matthew Fisher's claim that his subsequent contribution resulted in a jointly owned arrangement of Gary Brooker's original music. The judge held that the arrangement was a separate copyright work, in which Matthew Fisher had a joint interest with the defendants. His share was assessed at 40%. Blackburne J rejected the contention that Matthew Fisher had made an assignment, express or implied, of his joint interest in the copyright in the arrangement to Essex Music. Instead, he held that the defendants had an implied licence to exploit Matthew Fisher's interest in the copyright in the arrangement until the licence was terminated by him with effect from 31 May 2005.
Thirdly, the Recording Contract. This issue arises on the construction of a Recording Contract dated 16 May 1967 made between the members of Procol Harum and Essex Music. The judge held that the Recording Contract was irrelevant to Matthew Fisher's copyright claim.
Fourthly, unfairness. This issue is directed to the alleged unfair consequences of the judge's order. The judge held that no unfairness grounds existed for denying the declarations claimed.
Outline facts
Gary Brooker was composing music in the mid-1960s. He was introduced to his future collaborator, Keith Reid, by a mutual friend, Gary Stevens, in about the middle of 1966. Keith Reid wrote the words for their songs. Gary Brooker wrote the music.
In early 1967 they decided, in conjunction with Gary Stevens as project adviser, to form a band to play their songs. On 28 January 1967 they placed an advertisement in the “Melody Maker” magazine —“lead guitar, organist, bass wanted for new project.” On 25 February 1967 Matthew Fisher placed an advertisement in “Melody Maker”—“Hammond Organist, harmony vocals, seeks pro. group.”
Procol Harum (the band's choice of name, inspired by the pedigree of a friend's cat) was formed. Gary Brooker was lead singer and pianist; Dave Knights, bass player; Ray Royer, guitarist; and Matthew Fisher, organist. A session drummer, Bill Eyden, was used for the recording sessions. A Management Agreement was made between the band and New Breed Management Limited (New Breed). It had no bearing on the copyright position.
Earlier in 1967 Gary Brooker had composed the music of “A Whiter Shade of Pale” around lyrics written by Keith Reid. From this point on I shall use the same definitions as were used by Blackburne J in his excellent judgment. The combined words written by Keith Reid and the music originally composed by Gary Brooker for “A Whiter Shade of Pale” will be called “the Song.” This is to distinguish the Song from the arrangement of it performed by the band on the record, which Mr Fisher claims included his unacknowledged contribution to the arrangement of the music. The arrangement of the Song on the record will be called “the Work.” This dispute is about the authorship of the Work, the ownership of the copyright in it and the exploitation of the copyright and entitlement to royalties earned after 31 May 2005.
Gary...
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