A paler shade of right

A recent high profile copyright battle between former members of the famous 60s band Procol Harum has been monitored closely by both the recording industry and musicians with potential claims for past royalties.

The dispute concerned the ownership of copyright in and entitlement to royalties generated by the recorded version of “A Whiter Shade of Pale”. Released in 1967, the song became one of the best sellers in British pop history and still continues to generate significant royalties. The band’s former organist, Matthew Fisher, claimed in 2005 that he was entitled to a share of the copyright in the musical arrangement of the recording, and accordingly a share of the royalties.

Gary Brooker and Keith Reid wrote the song and recorded a demo version before Procol Harum formed. In March 1967 they assigned their copyright in the words and the music to Essex Music Ltd. These rights are now owned by Onward Ltd. Brooker and Reid then formed Procol Harum, which Fisher joined as an organ player. Fisher claimed to have created the famous organ solo during rehearsals. When the single was released, Fisher was not credited.

High Court: “significant contribution”

Fisher claimed in his action that he was a joint author of the song and joint owner of the copyright, essentially by composing the distinctive eight bar melody of the organ solo. The High Court upheld Fisher’s claim to joint copyright, declaring that the organ solo was a “distinctive and significant contribution to the overall composition”: [2007] EWHC 3239 (Ch). The court declared that Fisher was the co-author of the recording as well as a joint owner of the musical copyright, with his rights assessed at 40%.

The court also declared that the defendants’ licence to exploit the recording was revoked on 31 May 2005, the date when the action was started, 38 years after the initial release! The court however refused a fully backdated restitutionary claim by Fisher, holding that any right to share in the royalties only commenced on the date he issued his claim.

Appeal court: “inexcusable delay”

The defendants appealed, on the ground that Fisher’s excessive and inexcusable delay should allow the court to refuse any form of relief at all. They argued that not only was the claim barred by equitable acquiescence, laches, delay and estoppel, but that it was no longer possible to have a fair trial on the contested issue of joint composition of the recording.

The Court of Appeal, in a decision issued in April ([2008] EWCA Civ 287), by a majority allowed the appeal in part. It held that the High Court had been correct to grant a declaration as to Fisher’s co-authorship of the recording and entitlement to joint ownership of copyright. However Fisher’s “excessive and inexcusable delay” in bringing a claim, and his acquiescing in the defendants’ longstanding commercial exploitation of the recording, made it unjust to grant any financial relief based on his claims to a joint interest in the recording or to revocation of the implied licence for the respondents to exploit it. Lord Justice Mummery highlighted that there was a crucial difference between a declaration of joint copyright ownership and the ability to effectively enforce that interest by revoking an implied licence to exploit. Fisher had effectively stood by for 38 years, allowing the defendants to act on the basis that the entire copyright in the recording was theirs. Such acquiescence rendered the implied licence irrevocable.

Paled, but no carte blanche

Not surprisingly the decision has been welcomed by the music industry, which had feared that a floodgate of claims might come out of the woodwork. Whilst the recent appeal ruling is very fact-specific given the long delay and the fact that very few songs would make such litigation economically viable, nevertheless it does highlight the importance of getting clear contracts in place and taking timely action against any infringement of intellectual property. For example it is worth noting that this ruling does not lay down a benchmark for what an “excessive” delay is, and so should not be seen as giving carte blanche to assume that any implied licence, even a longstanding one, to use and exploit copyright material will be irrevocable. Indeed the dissenting appeal judgment would have allowed the claim to royalties as from the date of raising the action.

As more and more recording and publishing companies move towards an all-encompassing type of deal with artists generating royalties from broad multimedia and live events, it becomes ever more important to have clear contractual provisions in place with all the relevant copyright, or potential copyright, holders. Otherwise they may end up skipping the light fandango into court…