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Last week the House of Lords handed down its judgment in the long-running copyright case about the song “Whiter Shade of Pale” in favour of former Procol Harum band-member Matthew Fisher (Fisher v. Brooker and Others [2009] UKHL 41). The Law Lords allowed Fisher’s appeal and restored the declarations made by the trial judge that had been set aside by the Court of Appeal – but with a nasty sting in the tail for Mr Fisher.
Facts
The music in its original form was written by Gary Brooker to lyrics by Keith Reid in early 1967. Brooker and Reid entered into a publishing agreement assigning the copyright in the song to Essex Music on 7 March 1967. Shortly after, Fisher joined the band and composed the famous organ solo. The song, incorporating the new material added by Fisher, was recorded and released on 12 May 1967 on the Decca label under licence from Essex. On 16 May 1967 the band Procol Harum (including Fisher) entered into a recording agreement with Essex in relation to the recording.
Some 38 years later, in 2005, Fisher notified Essex and Brooker of his claim in the copyright in the work. Shortly thereafter, Fisher issued proceedings. The judge at first instance held that Fisher was the co-author of the song and joint owner as to 40% in the musical copyright in the song, and that Brooker and his publisher Onward Music Ltd’s implied licence to exploit the song was revoked when Fisher began proceedings on 31 May 2005.
Brooker and Onward appealed to the Court of Appeal who agreed that Fisher was a co-author and joint owner of the musical copyright, but held that he was not entitled to revoke the implied licence to Brooker and Onward because of the delay in enforcing his rights.
Issues
Three key issues were identified by the Law Lords:
- Did Fisher impliedly assign his interest in the song to Essex?
Brooker and Onward had argued that, as Essex had taken an absolute assignment in the music and lyrics of the song in its original form, and all parties intended Essex to exploit the song as developed for the first recording released by Decca, it must have been intended (including by Fisher) that Essex would be the sole owner of the copyright in the song. The Law Lords held that, for this to be the case, there would have to have been an implied assignment of Fisher’s share in the copyright in the song to Essex. For that implied assignment to be established, Brooker and Onward would have to show that it would have been obvious to Fisher that such an assignment was taking place and that the commercial relationship between the parties could not have functioned without such an assignment.
The Law Lords found that Brooker and Onward had not established these requirements at trial (and it was not the House of Lords place to re-visit the factual findings of the judge on these issues), and that even if they had, an assignment of Fisher’s share in the copyright (particularly a gratuitous one) would have been more that was necessary to give business efficacy.
- Did the recording agreement entered into between the members of the band and Essex include an assignment of Fisher’s interest in the musical composition?
The band's recording contract with Essex contained clauses granting Essex the right “to manufacture… sell, lease, license or otherwise use or dispose of … records embodying the performances to be recorded hereunder” and “to incorporate in records to be made hereunder instrumentations, orchestrations and arrangements owned … at the time of recording them”.
Brooker and Onward argued that these clauses operated so as to assign Fisher’s interest in the copyright in the song to Essex. The trial judge had rejected this argument on the basis that the recording contract was not concerned with the copyright in the song – it "merely gave to [Essex] the right to exploit the [first recording]." The Law Lords also found that the clauses did not operate as an assignment of copyright in the song.
However, unfortunately for Mr Fisher, the Law Lords commented that those clauses might take effect as a licence for the use of copyright in the song in the first recording, and if so, would "have the effect of depriving Mr Fisher of any royalties he might otherwise seek as a result of exploitation of the work, in so far as it is through the medium of the first recording." The Law Lords did not make any absolute finding on this point, but it seems inevitable that this issue will resurface as an issue between the parties.
- Had Fisher lost his interest in the copyright as a result of the equitable doctrines of estoppel, laches or acquiescence?
Brooker and Onward argued that, because of his delay, Fisher was prevented from raising his claim to a share of copyright in the song. The Law Lords held that, to succeed in this argument, they would have to show that they reasonably relied on his having no such claim, that they acted on that reliance, and that it would be unfairly to their detriment if he was now permitted to raise or enforce that claim.
Brooker and Onward failed to persuade the Law Lords that Fisher's claim should fail. Fisher’s delay in bringing his claim had actually been to their considerable financial benefit (particularly Brooker’s) and no evidence was produced at trial that they would have acted any differently if Fisher had made his claim to a share in copyright in the song in 1967, or in 1969 when he left the band. The House of Lords also made clear that the Court of Appeal should not have been influenced by Fisher’s motive for bringing the claim when deciding whether the trial judge was right to grant declarations. There is a crucial difference between the exercise of a proprietary right and its protection by the discretionary remedies of the court.
The fundamental problem for Brooker and Onward on this issue was the fact that there is no English law statutory equivalent in copyright to the doctrine of adverse possession in relation to land. The mere passage of time cannot of itself undermine a proprietary claim in copyright. Conclusion
While judgment was given in favour of Fisher, the Law Lords' suggestion that the recording contract granted a royalty-free licence to Essex to exploit the song in the medium of the original recording takes some of the sheen off Fisher's victory. He will still be entitled to royalty income from cover recordings and live performances, but, if the court is right, royalties from the song as it appears on the iconic first recording will be beyond his reach.
In more general terms, this case will cause some anxiety for writers and music publishing companies alike. It is clear that all co-writers of musical and literary works should try to agree their respective shares in each work as they write them. However, in the real world, this is not always easy to achieve. It is difficult to control the extent to which compositions are modified, improvised and altered in the recording studio, it is not easy to put a percentage on a creative contribution, and creative individuals rarely want to negotiate with each other over song shares while embarked on a collaborative creative process.
It will also seem unfair and unreasonable to many established writers and publishers that a copyright claim can be resuscitated after nearly 40 years. Publishers in particular plan their business activities on the basis that they can rely on certain established income streams. They will be concerned that this judgment will spawn a stream of vexatious litigants.
However, writers, publishers and other rights owners might, in this age of free-for-all internet piracy and copyright libertarianism, take some comfort from the fact that the Law Lords have recognised and confirmed the proprietary nature of copyright and the fundamental right of a copyright owner to control exploitation of his own work:
There is no concept in our law that is more absolute than a right of property. Where it exists, it is for the owner to exercise it as he pleases. He does not need the permission of the court, nor is it subject to the exercise of the court's discretion. The benefits that flow from intellectual property are the product of this concept. They provide an incentive to innovation and creativity. A person who has a good idea … is entitled to protect the advantage that he has gained from this and to earn his reward. These are rights which the court must respect and which it will enforce if it is asked to do so.
Jon Baker
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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