Beyond the Pale

 Almax • 5 April 2008

We skipped a light fandango,
Turned cartwheels 'cross the floor.
I was feeling kind of seasick,
But the crowd called out for more.

Makwuzere draws my attention to the judgement issued yesterday by the English Court of Appeal in the case of Fisher v Brooker.

This is the latest chapter in the long-running saga of who wrote A Whiter Shade of Pale, the 1967 hit for Procol Harum.

While one obviously regrets the unseemly fighting about the authorship of the song, which has led to protracted and expensive litigation, it is a song well worth fighting for.

In 1967, when it was released, it caused a sensation and everybody went mad for it. I recall reading a story about John Lennon, who had an advance copy, touring about in his Rolls Royce, playing
it and raving about it to everyone who would listen.

And 40 years later it is still a song that is guaranteed radio play, and guaranteed attention from listeners of every age group. It seems quite timeless in its appeal, though it’s obviously
redolent of the 1960’s flower power and hippie era.

The room was humming harder,
As the ceiling flew away.
When we called out for another drink,
The waiter brought a tray.

From 1967 onwards the song was credited to Brooker / Reid (the lead singer and lyricist), and naturally they divvied up the continuing lucrative royalties between them.

However in 2005, the former organist in the band, Matthew Fisher, began litigation intended to establish that he had written the distinctive organ melody. He claimed co-authorship rights, and as a
consequence, also claimed an entitlement to the worldwide royalties.

In 2006 Fisher won his legal battle, being awarded 40% of the copyright in the song in the English High Court.

“I find 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,” the judge said.

That court action produced a good deal of acrimony between the former colleagues in the band.

Yesterday’s decision by the Appeal Court affirms that Fisher is a co-author of the song, but denies him any rights to share in the royalties, apparently on the basis that there had been excessive
delay in making the claim in the first place.

Lord Justice Mummery (crazy name, crazy guy) said: “Matthew Fisher is guilty of excessive and inexcusable delay in his claim to assert joint title to a joint interest in the work.

“He silently stood by and acquiesced in the defendant’s commercial exploitation of the work for 38 years.”

The delay in making a case, which Mr Fisher had begun in May 2005, “made it unconscionable and inequitable for him to seek to exercise control over the commercial exploitation of the copyright in
the work“.

Fisher has sought leave to appeal to the House of Lords, so perhaps this saga is not over yet.

Meantime the tabloid press are predictably reporting yesterday’s result with headlines like “Brooker turns cartwheels 'cross the floor”

By the way, the name Procol Harum is said to be Latin for “beyond these things“. However, as any fule kno’ the correct Latin translation of “beyond these things” is Procul His

And so it was that later,
As the miller told his tale,
That her face at first just ghostly,
Turned a whiter shade of pale.