The song “A Whiter Shade of Pale” recorded by Procol Harum has always been credited fifty percent to the group’s singer and piano player, Gary Brooker (music), and fifty percent to the group’s co-manager, Keith Reid (lyrics).
Matthew Fisher, a sometime member of the group, played the Hammond organ on the popular recording of the song. He claimed that he composed the organ parts. In particular Fisher said he wrote the organ solo including the distinctive intro, having taken inspiration from two pieces by J.S. Bach. Fisher wanted to be credited with 50% of the musical copyright (ie 25% of the whole song) and to receive a corresponding share of the music publishing income. Fisher sued Gary Brooker and the publisher of the song, Onward Music, in the High Court.
Was a fair trial possible?
Before dealing with the main aspects the judge, Mr Justice Blackburne, considered whether, after all these years, a fair trial was possible. Although this aspect “troubled” him more than any other, on balance the judge felt that a fair trial was still possible. Among other things, he thought the delay was not relevant to who composed the organ solo and that he had enough evidence to decide who created it. Both Brooker and Fisher gave pretty detailed accounts of how the solo was written and Brooker, in giving his evidence, seemed to accept that Fisher was responsible for the actual notes in the solo.
Did the organ solo qualify as an original contribution to the song and who composed it?
The judge decided that the solo was distinctive, significant and the product of the skill and labour of the person who created it and qualified “by a wide margin” as an original contribution to the song.
The defendants argued that, although Fisher had written the solo, it was derived from bass lines originally composed by Brooker. After a detailed analysis of the evidence, the judge concluded that Fisher had composed the solo himself. His contribution was significant enough, firstly, to enable him to qualify as a joint author and, secondly, to entitle him to a share of the copyright in the song. A key point seemed to be that Fisher claimed (and Brooker seems to have accepted) that the bass line in the original version of the song was changed slightly to accommodate the melody line Fisher said he had composed for the solo.
What is interesting is that the judge’s comments on this issue would not seem to rule out Fisher qualifying as a joint author of the song even if he had only provided the accompaniment to the verses and choruses and had not composed the solo at all!
This underlines the importance for record companies, music publishers, artist managers and lawyers of obtaining assignments of copyright, waivers of any interest in the publishing and agreements not to assert any interest in the publishing from not only so-called non-writing band members, session musicians/vocalists and record producers but also from remixers and anyone else who may have contributed to a song or a recording of it. Great care needs to be taken in the drafting to ensure that any interest that the PRS or a music publisher may have by virtue of a prior assignment from any of these individuals is dealt with.
If Fisher did compose the solo, was there any agreement that he waived any publishing interest?
Fisher did not enter into any written agreement dealing with any interest he may have had in the song with Essex Music (the publisher at the time). But the defence argued that:
- because an earlier demo (which had been lost) existed and was solely Brooker’s copyright, the later version of the song “A Whiter Shade of Pale” that was recorded and released was therefore an arrangement of the earlier copyright work recorded on the demo; and
- this arrangement required the licence of Essex Music if it wasn’t to be an infringing arrangement; and
- either Essex Music consented to this arrangement being made but that consent did not extend to an acceptance that Fisher should have any copyright in the arrangement,
- or Essex Music licensed the arrangement on the understanding that Fisher would not have a copyright interest in it.
However, the judge found that there was no express agreement between Fisher and Essex Music because there was no direct communication between them at the time.
He said that there would have had to have been an agreement in existence before a term could be implied into it and he could not find one. In any event, he couldn’t imply a term on the basis of business efficacy (irrelevant in this instance) or because of the custom and practice of the music industry. Case law contradicted any evidence that the custom and practice was that a band member or session musician did not necessarily get a copyright interest in a song or an arrangement of a song even though he or she may have composed his or her own parts using sufficient skill and labour to otherwise attract a copyright interest.
The judge decided that Fisher had not waived any interest in the publishing.
It is therefore also essential for band managers and lawyers, where groups are concerned, to deal with the division of songwriting, authorship and income between the group members in the band members’ agreement.
Although not relevant to the outcome, the judge made a surprising comment where he seemed to indicate that even if he accepted the original demo of the song had existed then the later version of “A Whiter Shade of Pale“, ie the one that was released, may not be an arrangement of this earlier version.
Did Procol Harum’s recording contract grant enough rights to the record company to allow it to exploit the song without payment of publishing royalties?
The recording contract was between Reid and his co-manager, Jonathan Weston on behalf of Procul Harum, a production company and an associated company of Essex Music. It seemed to grant wide rights to use the songs (as well as the recordings) of the group. The defence argued that Fisher, if he had a copyright interest in the song, had consented to the exploitation of the song pursuant to the recording agreement and therefore had no claim for payment of publishing royalties from the record company. The judge rejected this. He found that, on its true construction, the recording agreement dealt only with the recordings and did not apply to the underlying musical works except as embodied in the recordings.
He also thought the recording contract did not affect who had a copyright interest in the song and, presumably, who would be entitled to publishing royalties.
The other defences
The defence argued that the claim should fail for various other reasons including the legal doctrines of estoppel and laches (delay). In order for the defence of estoppel to work, the defendants had to establish that it would have been unacceptable for Fisher to be permitted to deny what he allowed or encouraged Brooker and the other defendant to assume to their detriment. The judge found that Fisher did not say or do anything actively to encourage the defendant to believe that he would not be asserting a copyright interest. He merely kept silent, ie failed to assert his rights. He also decided that neither defendant had suffered any detriment mainly because they had received all their royalties to date and were not being asked to pay Fisher a share retroactively. However, it may be that Brooker, at least, has suffered detriment if in his publishing agreement he represented to Essex Music that they would control 100% of the musical copyright in the song for a period of time and gave an indemnity to back this up. If it now transpires that such a representation was not true (albeit through no fault of Brooker), this could have adverse consequences for him.
He also found that laches (delay) would not be applicable in this case.
Fisher’s copyright interest
The judge awarded Fisher a 40% share of the musical copyright in the song, ie 20% of the whole song, and a corresponding share of royalties from the song from 31 May 2005 (the date that Fisher’s claim was issued).
There has been a lot of comment as to the potential effects of this judgment. There may well be more claims of this nature in the near future and it (and the previous cases) may not reflect what is arguably common practice in the industry. But the judgment doesn’t change the law. Case law, including the Bobby Valentino/Bluebells case, has already established that if anyone makes a contribution to a musical work which is of sufficient skill and labour and original in the sense that it comes from the contributor, they will be entitled to a copyright interest in the musical work concerned and to a share of the publishing income.
Diligence, on the part of the industry, in ensuring that all necessary contractual arrangements are in place with anyone who may be involved in the writing and recording of music is, even more than ever, the order of the day.