Judgment in the AWSoP lawsuit appeal

4 April 2008

Case Reference: A3/2007/0157
Title: Fisher v Brooker and another
Type: Appeal
Appeal/Application:  from the order of Mr Justice Blackburne Chancery Division dated 20-Dec-06
Venue: London
Constitution: Lord Justice Mummery, Mr Justice Richards, Sir Paul Kennedy

Appeal of Defendant from the order of Mr Justice Blackburne, dated 20 December 2006, filed 26 January 2007. A great deal of this document is about law, not very interesting (and possibly not altogether intelligible) to the great majority of music fans: for example 'The concept of unconscionability, which, as I shall explain, underpins the doctrine of proprietary estoppel, also appears in formulations of the defences of laches and acquiescence. The change of position aspect of acquiescence and laches is less stringent than the requirement of detrimental reliance in cases of proprietary estoppel.' The following excerpt, however, gets to the heart of the authorship issue regarding Procol Harum's famous song:

Result

• The judge was entitled to find that Matthew Fisher made a creative contribution to the Work and he was right to grant a declaration as to his co-authorship. I would dismiss the appeal against the grant of this declaration.

• I would, however, allow the appeal against the grant of declaration (2) of joint ownership of the musical copyright in the Work and declaration (3) of the revocation on 31 May 2005 of the defendants' implied licence from Matthew Fisher to exploit the Work. In summary, my reason for allowing the appeal against declarations (2) and (3) is that Matthew Fisher's conduct makes it unjust that he should succeed in his claims to a joint interest in the Work or to have revoked the implied licence for the defendants to exploit it. The judge should have taken a broader approach to the application of the delay defences. In particular:

(1) Matthew Fisher is guilty of excessive and inexcusable delay in asserting his claim to title to a joint interest in the Work. He silently stood by and acquiesced in the defendants' commercial exploitation of the Work for 38 years. His acquiescence led the defendants to act for a very long period on the basis that the entire copyright in the Work was theirs. They controlled the commercial exploitation of the Work without any reference or reward to him.

(2) His acquiescence has made it unconscionable and inequitable for him to seek to exercise control over the commercial exploitation of the copyright in the Work. The combination of a declaration of a joint interest and a declaration of revocation of the implied consent would enable him to control future commercial exploitation by means of a final injunction against the defendants. For this reason declarations (2) and (3) should be set aside.

(3) If the implied licence has become irrevocable by acquiescence Matthew Fisher cannot claim damages for infringement of copyright, or any share of the monies collected by the copyright collecting societies, or obtain any contractual right for payment of royalties in the future as the price for granting an express licence for the exploitation of the copyright in the Work. For these reasons the order for an inquiry as to damages since 31 May 2005 should be set aside.