Full case report

Fisher v Brooker & Onward Music Ltd

Reference [2006] EWHC 3239 (Ch); [2007] EMLR 256; [2007] FSR 12
Court Chancery Division

Judge Blackburne J

Date of Judgment 20 Dec 2006


Summary

Copyright – Musical work – Joint authorship – Composition of song – Significance of contribution – Fair trial – Assignment – Estoppel – Laches


Facts

F and B were members of the group Procol Harum in 1967, when it recorded the song ‘A Whiter Shade of Pale’. The song became extremely popular, and remains so. F, who played the organ on the song, claimed that his contributions, in particular to the solo that introduces the song, were such that he deserved a share of the musical copyright. B and OM asserted that the passage of time had made a fair trial impossible; denied that F’s contribution warranted such an interest; and alternatively relied upon a prior assignment of interests, the terms of the group’s recording contract, and the defences of estoppel, acquiescence and laches to defeat any interest.


Issue

(1) Whether there could be a fair trial given the length of time that had passed;

(2) If so, whether F’s contribution was capable of conferring on him an interest in the musical copyright;

(3) If so, whether any interest to which F would otherwise be entitled was defeated by the prior interests of others (derived from an assignment of the copyright in an early version of the song), the terms of the band’s recording contract, or estoppel, acquiescence or laches.


Held

Finding for F and declaring him 40% owner of the musical copyright in the song:

(1) A fair trial was not impossible. Although some possible witnesses had died, this was of little significance as there was little factual dispute on the key issue as to composition of the solo, and it was not possible to say that but for F’s delay, the demo tape of the song would have been available.

(2) F’s instrumental introduction (the organ solo) was sufficiently different from what B had earlier composed on the piano to qualify, by a wide margin, as an original contribution to the song entitling F to an interest in the musical copyright.

(3) F’s interest was not defeated, either by the assignment, the recording contract (which was concerned with exploitation of the song and therefore irrelevant) or estoppel, acquiescence or laches (B and OM having not suffered any or any appreciable detriment by F’s failure to make his claim earlier).


Comment

There may be some truth to Mr Brooker’s comment that this judgment heralds “open season on songwriters”: not because it marks a departure from previous decisions but because it makes clear that the traditional industry practice of attributing the authorship of songs to the composer of the basic melody and the lyrics is simply inconsistent with the law. Where a band member makes a contribution to a song that “is both significant (in the sense that it is more than merely trivial) and original (in the sense that it is the product of skill and labour in its creation) and the resulting work is recorded (whether in writing or otherwise), that band member is entitled to copyright in the work as one of its joint authors and to any composing royalties that follow.”


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Instructing Solicitors

Jens Hill & Co for F; Harbottle & Lewis for B and OM