Fisher v Brooker & Onward Music (CA)
Reference:  EWCA Civ 287
Court: Court of Appeal (Civil Division)
Judge: Mummery LJ, David Richards J, and Sir Paul Kennedy
Date of judgment: 4 Apr 2008
Summary: Copyright - Musical work - Joint authorship - Composition of song - Delay - Acquiescence - Laches - Proprietary estoppel - Impossibility of fair trial - Assignment - Contract - Unfairness - Remedies - Declaratory relief - Ownership
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Instructing Solicitors: Jens Hills & Co for F; Harbottle & Lewis for B and OM
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.
Blackburne J held that a fair trial was not impossible; that F’s contribution justified awarding him a 40% share of the musical copyright; and that F’s interest was not defeated by the recording contract or any other defence.
B and OM appealed.
(1) Whether the defences of acquiescence, laches, delay and proprietary estoppel or the impossibility of a fair trial disqualified F from any discretionary declaratory or equitable relief;
(2) Whether F had made an implied equitable assignment of his interest in the copyright to OM’s predecessor in title;
(3) Whether the recording contract provided B and OM with a defence to F’s claim;
(4) Whether there existed unfairness grounds for denying the declarations claimed.
Allowing the appeal (David Richards J dissenting):
(1) B and OM were not denied their right to a fair trial as a result of the long delay. Delay alone was insufficient to raise any defence. The court was not entitled to interfere with the judge’s decision on proprietary estoppel. There were no grounds for disturbing the judge’s findings of fact on authorship; he was right to grant a declaration as to F’s co-authorship. However, by virtue of F’s acquiescence and laches, the judge ought not to have granted him any declaration as to co-ownership or revocation of B and OM’s implied licence.
(2) In light of (1) it was unnecessary to express a view, although such a licence was not difficult to imply and made commercial sense.
(3) In light of (1) it was unnecessary to express a view, although the contract may have prevented F from revoking the implied licence to exploit the work.
(4) In light of (1) no useful purpose would be served by a decision on this point.
Although claims to co-authorship are not rare, they are usually made rather more quickly than in this case, where F delayed making his claim for 38 years. Curiously, despite this lengthy delay, B and OM failed to establish any detriment and so the claim could not be defeated by estoppel.
The essence of David Richards J’s dissenting judgment was that laches is a bar only to equitable remedies, and that the declaration sought, which was sought as a basis on which F could obtain royalties in the future, was not such a remedy.