Matthew Fisher v Gary Brooker and Another
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE BLACKBURNE,Mr Justice Blackburne,MR JUSTICE BLACKBURNE |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWHC 3239 (Ch) |
| Docket Number | Case No: HC05C01374 |
| Court | Chancery Division |
| Date | 20 December 2006 |
[2006] EWHC 3239 (Ch)
The Hon Mr Justice Blackburne
Case No: HC05C01374
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Ian Purvis Qc and Hugo Cuddigan (instructed By Jens Hills & Co) for the Claimant
Andrew Sutcliffe Qc and Richard Edwards (instructed By Harbottle & Lewis LLP) for the Defendants
Hearing dates: 13 th to 16 th, 20 th and 24 th November 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
Mr Justice Blackburne:
Introduction
"A Whiter Shade of Pale" was one of the most successful popular songs of the late 1960s. Recorded by the band Procol Harum and first released as a single on 12 May 1967 by Decca Records under licence from Essex Music Ltd, it was an instant success. Already in June 1967 it had reached number one in the UK charts where it remained for several weeks. It reached number five in the American charts with sales in the USA rising to over a million copies. It was no less of a success elsewhere. Worldwide, over six million copies were sold. On 26 March 1968 it was declared to be the International Song of the Year at the Thirteenth Annual Ivor Novello Awards. In 2004 Rolling Stone magazine placed it at number 57 in its "500 Greatest Songs Of All Time" while Channel 4 placed it at number 19 in its chart of the "100 Greatest Songs".
The song and Procol Harum have been the subject of numerous published articles and media interviews. They have inspired a dedicated following of fans and, more recently, the creation of websites devoted to the dissemination of information about them. There are over 770 versions of the song performed by other groups with varying degrees of faithfulness to it as first recorded.
It is no exaggeration to say that with the passage of time the song has achieved something approaching cult status. Still popular with many who recall the song when it was first released, it enjoys a following among the generations that have followed. More recently, themes for the song (including in particular its introductory bars) are available as mobile telephone ringtones.
These proceedings are concerned with the ownership of the musical copyright in the song as recorded by Procol Harum for its first release in May 1967. I shall refer to the song as so recorded as "the Work". It is the recording which enjoyed and continues to enjoy such widespread popularity. The musicians on that recording were Gary Brooker (voice and piano), Matthew Fisher (Hammond organ), David Knights (bass), Ray Royer (guitar) and Bill Eyden (drums). (In fact Mr Eyden was a session drummer used for that recording and was not a member of Procol Harum.) The producer was Denny Cordell and the sound engineer Keith Grant. The writers of the song credited on the record label were Keith Reid (lyrics) and Mr Brooker (music). Mr Fisher, who is the claimant, was accorded no such credit.
Mr Reid and Mr Brooker, who is the first defendant, assigned their copyright in the words and music of the song (and in one other composition) to the music publisher Essex Music Ltd by an assignment dated 7 March 1967. They did so in return for various royalties and fees, including sheet music royalties, mechanical royalties, synchronisation fees and performance fees. This was some time before the Work —ie the song as released in May 1967 —was recorded. At this early stage the song had four verses and was sung by Mr Brooker to his own piano accompaniment. I shall refer to the song in that form as "the Song" to distinguish it from the Work, ie the song as sung by Mr Brooker to a musical accompaniment by himself and the other members of Procol Harum (excepting the drummer) and released as the single on 12 May 1967. The Song was registered with the Performing Rights Society ("the PRS") on 17 March 1967 and at about the same time (it may have been a week or two later: the relevant records are no longer available) it was registered with the Mechanical Copyright Protection Society ("the MCPS").
On 1 July 1967 Essex Music Ltd assigned to Essex Music International Ltd the rights which it had acquired from Mr Reid and Mr Brooker by the assignment of 7 March 1967. In mid-1993 Essex Music International, which following a name change some years earlier became known as Westminster Music Ltd, assigned its interests to Onward Music Ltd, the second defendant. This was with effect from 31 December 1991.
Onward Music also claims to own the rights in the master recording of the Work as released in May 196This is said to result from a recording contract dated 16 May 1967 ("the recording contract") entered into by Procol Harum (acting by Mr Reid and a Mr Jonathon Weston as its managers) with Essex Music and an entity described as New Breed Productions. New Breed Productions was a trading name for a company not established at the time but only incorporated on 3 July 1967 (as Straight Ahead Productions Ltd). It was to run the recording operations then being set up by David Platz, who was managing director of Essex Music, and Mr Cordell. Mr Platz and Mr Cordell have since died. The meaning and effect of the recording contract and, in particular, whether it extended to any musical copyright in the Work are matters of dispute between the parties. By a slightly different chain of assignments, Onward Music claims to be entitled to the rights under that contract.
The Work
The Work lasts 4 minutes. It comprises 74 bars in 4/4 time made up as follows: an 8-bar introduction, a 16-bar verse (verse one), an 8-bar chorus, a repeat of the 8-bar introduction, a 16-bar verse (verse two), a repeat of the 8-bar chorus, a variation of the 8-bar introduction (the variation being to the fourth and sixth to eighth bars), followed by a brief 2-bar reprise of the start of the chorus. The music fades away in the second bar of the reprise thus bringing the Work to a conclusion.
The 8-bar introduction, which, as I have mentioned, is repeated between the two verses and is repeated but with variations after the second verse, features an organ solo by Mr Fisher. Although described as a "solo", in fact his playing is accompanied but, with the exception of a languorous drum beat, it is difficult to detect any of the other instruments.
In paragraph 9.13 of his expert report tendered in evidence on behalf of the defendants, Mr Peter Oxendale, who is a musicologist with impressive qualifications and a distinguished track record as an expert in copyright litigation extending over 26 years, together with many years of experience as a keyboard player, music director and producer in the field of popular music, said this of the Work (and in particular of the so-called organ solo):
"It does not surprise me that many of the versions of the Song contain the Solo. This is because the first recorded version of the Song by Procol Harum in 1967 [ie of the Work] was a huge international hit and the arrangement of the Song, particularly the Solo in the opening measures [ie bars], is both distinctive and memorable and would, in my opinion, be identified by almost anyone familiar with the repertoire of contemporary popular music even after hearing just a few bars."
Elsewhere, he described the organ solo as significant and as hugely famous. I agree with all of that.
Whilst it is important when listening to the Work as first released to distinguish between the musical composition and the memorable performance of it, that is to say the quality of performance by the individual musicians and of the recording, it is undoubtedly the case, and I find, that the organ solo is a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labour on the part of the person who created it.
The issues
A central issue in this dispute concerns the identity of the person who can claim, for musical copyright purposes, to have composed the organ solo, that is to say the melodic line transcribed as cd18 (showing the solo as it is heard in the eight bar introduction and between the two verses) and cd19 (as it is heard in the eight bar section which follows the second verse and chorus) in the witness statement of Mr Fisher. It is not in dispute that Mr Fisher participated in the evolution of what became the Work by his contribution of the organ part, including the organ solo. What is in issue, however, is the extent to which the organ part, especially the organ solo, is to be viewed as Mr Fisher's invention and, even if it was wholly his invention, whether his contribution of it was such as to entitle him to a share in the authorship of the overall Work. The matter can be broken down into the following issues: (1) the extent of Mr Fisher's contribution to the Work; (2) whether that contribution was capable of conferring on Mr Fisher an interest in the musical copyright in the Work and (3) whether any copyright interest in the Work to which Mr Fisher would otherwise be entitled is defeated by (a) the existence of a copyright interest (otherwise than in Mr Fisher) in an earlier version of the Song and the consequences that flow from that, (b) the terms of the recording contract and (c) defences based upon estoppel, acquiescence and laches.
If Mr Fisher's claim overcomes these various hurdles there is then the question of remedy and whether, in particular, the court should grant him a declaration of his copyright interest and, even if it does, whether he should be granted a restitutional remedy in relation to past royalties, and injunctive relief.
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