Thursday 30 July 2009

‘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(2) Fisher is a joint copyright owner, with a share of 40%; (3) Brooker and Onward Music’s licence to exploit the work was revoked on 31 May 2005.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.’

1 comment:

Anonymous said...

January 24, 2018

Michael Andersen

524 E Rhea St.

Long Beach, CA 90806

United States

Correspondence ID:1-2V18751

RE:a WhiTEr ShaDE of pAle 67-10

Dear Michael Andersen:

Through our email correspondence, it could be inferred that you did not have written permission to claim copyright in your musical arrangement. 

The copyright owner of a work has the exclusive right to make a new version of that work (Section 106 of the copyright law, 17 USC); this includes musical arrangements.  Also, Section 103 provides that protection for a work including copyrighted preexisting material does not extend to any part of the work in which this material has been used unlawfully.

To be able to claim copyright in a derivative work, you must have the explicit written permission from the owner of the original work.  As you did not have written permission to claim copyright in your derivative musical arrangement at the time this registration was filed, you do not have the authority to claim copyright in it.  Therefore, we must refuse registration.  In accordance with our practices, we will keep the application, copy, and non-refundable fee.

This letter is for your information only; no response is necessary.


Darrell Pinto

Copyright Examiner

United States Copyright Office

Library of Congress

101 Independence Ave. SE

Washington, DC 20559-6003