‘A Whiter Shade of Pale’ – copyright doesn’t fade over time

The House of Lords has today reversed the Court of Appeal’s decision over Procol Harum’s ‘A Whiter Shade of Pale’ (Fisher v. Brooker, here). ‘A Whiter Shade of Pale’ was recorded in 1967. Gary Brooker’s music was adorned by Matthew Fisher’s now world-famous organ solo (above), but Fisher proceeded to wait 38 years to claim his share of the copyright. The case involves a number of issues but the key question was whether Fisher should be entitled to future royalties on the song when he had left it so long to claim them.

The trial judge had granted three declarations: (1) Fisher is a co-author of the song; (2) Fisher is a joint copyright owner, with a share of 40%; (3) Brooker and Onward Music’s licence to exploit the work was revoked on 31 May 2005.

The Court of Appeal set aside (2) and (3) on the basis of delay (acquiescence and laches) – producing the bizarre result that Fisher would be a co-author with no copyright ownership. Although there’s no statutory limitation period to a copyright claim, delay is a potential bar to an injunction – which is granted at the discretion of the court. Mummery LJ argued that because Fisher’s ultimate goal was an injunction he should not be allowed the copyright interest that would provide the basis for it.

The House of Lords, however, distinguished between the property right and the potential injunction. Property rights are not discretionary. To refuse a property right because it might lead to an inequitable injunction would be ‘the tail wagging the dog’. If Fisher were to use his newly asserted property right to seek an injunction, the court would be free to determine whether to grant it. The Lords were unanimous in their decision – even tickled pink. Baroness Hale exclaimed as she danced the light fandango: ‘As one of those people who do remember the sixties, I am glad that the author of that memorable organ part has at last achieved the recognition he deserves.’