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Fisher wins final Pale dispute appeal
By CMU Editorial | Published on Friday 31 July 2009
So, the precedent set here is that there is no deadline for filing a copyright claim under English law.
Which is good news if you’ve always wished you’d claimed ownership of a line of lyrics or three in some big sixties pop hit. Though more so if there’s some validity to your claim, I suppose. I’m not sure there’ll be much of a case for my claim to having written the second verse of ‘Imagine’, even if it doesn’t matter that 38 years have passed since its release.
Anyway, this is a long winded way of telling you that the long running Procol Harum copyright dispute reached its conclusion in the House Of Lords yesterday, and the Lords reinforced a High Court ruling that said that the band’s organist, Matthew Fisher, should be recognised as a co-writer of the outfit’s biggest hit, ‘A Whiter Shade Of Pale’, overturning a Court Of Appeal judgement that said Fisher had left it too late to make his claim.
For those that fell asleep at some point during this long running legal dispute, here’s a quick summary. The Harum’s 1967 hit ‘A Whiter Shade Of Pale’ has always been credited to the band’s frontman Gary Brooker and lyricist Keith Reid. But in 2005 organist Fisher said that he had actually devised the song’s haunting, distinctive and now rather iconic organ melody while the band worked on the track in the studio; Brooker’s original musical score, he argued, did not include what is now the song’s most famous bit.
If I remember rightly, when asked why he’d never made a claim previously Fisher said that back in the day he’d been told that, while he hadn’t been given a songwriter credit on ‘Pale’, the band would make good the discrepancy by giving him a credit on future songs. I’m not sure whether they ever did so, though presumably Fisher’s resentment grew over the years as he realised he had given up a royalty share on what turned out to be one of the most successful pop songs of the twentieth century.
From the outset Brooker was keen to play down Fisher’s role in creating the organ melody in ‘Pale’, portraying his former bandmate as a jobbing musician who just played what he was told to play. But in 2006 the High Court said it believed that Fisher had devised the melody in the studio, and should therefore be given co-ownership of the track and 40% of all royalties. Though only 40% of royalties since the day he made his legal claim of ownership in 2005. Not quite what Fisher wanted, but not something to be sniffed at either given ‘Pale’s continued popularity.
Brooker appealed, his legal team arguing that Fisher’s copyright claim came just too long after the song had been created, meaning that it was impossible for the court to ascertain what had actually happened back in 1967, not least because some key potential witnesses were no longer alive. The appeals court bought that argument and overturned the original ruling, the judges not saying they didn’t believe Fisher had penned the organ melody, but that he had simply left it too late to make a claim.
A ruling which meant that the 38 years it took Fisher to make a claim was the key issue when the case finally worked its way to the ultimate court of appeal, the House Of Lords. And they, yesterday, rejected the Court Of Appeal’s suggestion that there was a deadline after which copyright claims could no longer be made.
Though in his judgment, one of the five Lords who unanimously found in Fisher’s favour, Lord Neuberger, did note that Fisher had made informal claims to the song on various previous occasions but was “rebuffed or ignored” by Brooker and Reid, adding: “He explained that he had not wanted to push his claim as he feared that, if he did so, he would be asked to say goodbye to a career in a number one pop group”. That might mean that the precedent really is that there is no deadline for a copyright claim, providing there’s a good reason for the delay.
Welcoming the ruling, which reinstated the 2006 judgement that gives Fisher a 40% share of post-2005 royalties, the organ man said the case “was never about money”, adding “there will not be a lot of that anyway. But this was about making sure everyone knew about my part in the authorship”. His legal man, Hugh Cuddigan, told reporters that the ruling should “reassure composers that their rights will be acknowledged and upheld by our courts”.
Brooker’s lawyer Lawrence Abramson, needless to say, criticised the ruling, saying it would now open the gates for countless claims by musicians who feel their contributions on songs recorded decades ago were overlooked, even though there may well have been agreements in place regarding such contributions, agreements which may have been unwritten and which are now hard to prove.
