Procol Harum

the Pale

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Beyond the Pale - singer seethes as organist wins
fight over 60s classic

Duncan Campbell in The Guardian • 21 December 2006

Song's opening solo worth a 40% share, says judge
Ruling may have profound effect on music business
It was the background music to the Summer of Love, but the argument over who should be credited with the world-wide hit A Whiter Shade of Pale ended yesterday on a wintry morning in a bitterly disputed judgment in the high court.

In the musical equivalent of a paternity hearing, the judge made a ruling that had one musician turning metaphorical cartwheels 'cross the floor, while the other must have been feeling distinctly kinda seasick.

In a judgment that could have profound consequences for the music business, the organist on the 1967 Procol Harum record won the right for a share of the song's royalties. Gary Brooker, the band's singer and co-founder who had contested the action, said the decision represented a "darker shade of black" for the music industry.

Matthew Fisher, 60, who played the Hammond organ on the record that has since sold 6m copies, claimed that the distinctive opening bars of the song, which he had provided with some inspiration from JS Bach, should have entitled him to joint authorship, along with Brooker and the lyricist, Keith Reid. Mr Justice Blackburne, who heard six days of evidence from both sides last month, ruled that Mr Fisher's contribution entitled him to 40% of the composing half of the royalties, but back-dated only until May 2005, when he began his legal action.

"I'm dazed", said Fisher after the judgment. "It will take a week or two to sink in." He said he imagined he would be "crossed off Gary and Keith's Christmas card list, but that's a small price to pay". He said that the action had "nothing to do with money", but was to establish his right to be recognised as part-author of one of the most famous pop songs of all time. Every effort had been made to reach an amicable solution before going to trial, but without success, he said. The court heard that Brooker's lawyers had threatened to pursue Fisher "to bankruptcy" if he persisted with his action.

Brooker, MBE, 61, originally from Hackney, east London, but now living in Surrey, who has just returned from his latest tour with the current band, was not in court. He issued a statement attacking the judgment.

"It's hard to believe that I've worked with somebody on and off since 1967 whilst they hid such unspoken resentment," he said. "I'm relieved that the trial is over, but my faith in British justice is shattered. If Matthew Fisher's name ends up on my song, mine can come off! I have to respect and acknowledge the people I write songs with. After all this time, the case should never have got to court. Johann Sebastian Bach deserves the credit for his inspiration to all musicians."

Brooker said all songwriters would now view musicians with suspicion. He and Reid suggested that the ruling "creates a ticking timebomb ready to explode when the musician chooses". Brooker added: "No longer will songwriters, bands and musicians be able to go into a studio without the spectre of one of them, at any future point, claiming a share of the publishing copyright."

In his judgment, Mr Justice Blackburne, who is himself a musician, ruled that "the organ solo is a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labour on the part of the person who created it."

Although Fisher had asked for an equal share with Brooker, the judge decided he was entitled to 40% of the musical part of the composition. Since Reid, as lyricist, is entitled to the other half of the overall royalties, this means that Fisher could receive 20% of all future overall royalties generated by the hit record, which now include payments from mobile phone ring-tones.

Leave to appeal against the decision was granted and there will be no immediate payment of back royalties. Fisher's lawyers, who had acted on a "no-win, no-fee" basis, said their costs were 420,000 and the judge ruled that they were entitled to 90% of them. No disclosure was made as to how much the song, of which there have been 700 cover versions, has earned in royalties over the years.

The judge described as "quite extraordinary" the delay between Fisher's first claim of authorship, supposedly made informally to Brooker on a train in 1967, and the final bringing of the claim in 2005. Such a delay, however, was not a bar to an action, as the main parties were still alive. He said that both Fisher and Brooker had struck him as "honest witnesses". Both men played a keyboard in court as part of their evidence.

Fisher, from Croydon, was with the band until 1969 and has played with them again on a number of occasions over the years. He had a career as a musician, composer and producer and now works as a computer programmer.

A spokesman for the Musicians' Union, Nigel McCune, said the case had to be seen in the context of other recent actions over authorship, specifically those involving Spandau Ballet and the Bluebells. "We have been watching it carefully", said Mr McCune. "but I don't think it is precedent-setting." He urged all musicians and composers to clarify their rights to authorship at the time of a recording.

Fisher was planning to celebrate last night, but said he doubted he would ever play A Whiter Shade of Pale again.

Battles of the bands: famous court fights

The late George Harrison found himself in court over his 1971 hit, My Sweet Lord. The publishers of the 1963 Chiffons hit He's So Fine claimed that the former Beatle's song bore too close a resemblance to theirs. After five years of legal dispute, damages of $587,000 were awarded, although Harrison always claimed his inspiration had been the song Oh Happy Day by the Edwin Hawkins Singers.

In 2003, the violinist Bobby Valentino won an action for joint authorship of the Bluebells hit Young At Heart. The judge ruled in his favour after deciding that the distinctive violin solo on the record made a "significant and original contribution" to its success. The song had gone to No 1 in the charts after it was used in a Volkswagen advertisement.

Three members of the band Spandau Ballet sued their former colleague Gary Kemp in 1999, claiming their entitlement to a share of royalties on hits such as True. Saxophonist Steve Norman argued unsuccessfully that his solo on that song should have given him co-author status. Kemp won.

The Smiths went to court in 1996 to settle a 1m royalties claim by drummer Mike Joyce against lead singer Morrissey and his songwriting partner Johnny Marr, after payments had been stopped to the former band members. Morrissey lost an appeal.

More about the AWSoP lawsuit



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