|
In December 2006 we reported on the outcome of the case in the High Court brought by the organist for Procol Harum, Matthew Fisher, to assert his right to claim joint ownership of the copyright in the famous arrangement of A Whiter Shade of Pale.
Despite Fisher only raising his claim some 38 years after making his contribution, Blackburn J made declarations in his favour as follows:
- that Fisher was a co-author of the music for A Whiter Shade of Pale as recorded by Procol Harum and released as a single on 12 May 1967 (Work);
- that he was joint owner of the musical copyright in the Work (his contribution to the Work being assessed at 40%); and
- that, until 2005, Fisher had effectively by his actions granted a licence to exploit the Work, but that this licence was revoked on 31 May 2005 when Fisher started his case.
Gary Brooker of Procol Harum and his publisher, Onward Music Limited, appealed that judgment. Last Friday, the Court of Appeal handed down its decision, overturning the judgment of Blackburn J and denying Fisher any reward for his contribution to the Work.
The Appeal Judges did not interfere with the decision of Blackburn J that Fisher had made a significant contribution to the Work. What they did say, however, was that Fisher was guilty of “excessive and inexcusable delay in asserting his claim”. By silently standing by and acquiescing in the commercial exploitation of the Work without taking action, Fisher “led [Brooker] to act for a very long period on the basis that the entire copyright in the Work was theirs”.
Mummery LJ said that this acquiescence made it “unconscionable and inequitable for him to now seek to exercise control over the commercial exploitation of the copyright in the Work”, and therefore declarations 2) and 3) (above) should be set aside.
There was some dissent from David Richards LJ as to the proper application of the relevant law relating to the delay, however the third Appeal Judge, Sir Paul Kennedy LJ, concurred entirely with the judgment of Mummery LJ.
Fisher had given evidence that he did not initially raise his claim to a share of the copyright in the Work as he thought he would be ejected from the band. Yet even when he left the band in 1969, he still failed to take any action despite apparently raising the issue in various interviews.
Some delay in asserting a legal claim is normally tolerated by the courts, particularly where the defendant is none the worse for the delay. However, the extraordinary delay in this case – nearly four decades – went beyond the bounds of what was reasonable in all the circumstances. Needless to say, cases such as this are rare. They are all decided on their own facts and it is not possible to say that delay for any set period of time will have the same result.
If you believe that you have a genuine claim for a share of the copyright in a composition (or indeed any other copyright work), you need to bear in mind that, if you wish to succeed in your claim, you will sooner or later have to bite the bullet and confront the issue. This can be difficult to do if you are in a continuing relationship with your co-author as a member of their band or otherwise. And you certainly would not want to raise the issue unless you think you have a good case. In all such circumstances it is therefore sensible to obtain legal advice in advance from an experienced practitioner.
Emma Stoker
313
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.
<< back to articles & bulletins
|