Procul [sic] Harum singer wins Whiter Shade of Pale battle

Scotland's Herald Online • 4 April 2008

Procul [sic] Harum star Gary Brooker today won his court battle to reclaim full royalty rights to his massive worldwide hit A Whiter Shade of Pale.

The Court of Appeal ruled by a majority that although Matthew Fisher, the musician who contributed the organ theme to the song first released in 1967, was entitled to co-authorship, he should not receive any royalties.

Lord Justice Mummery said in a ruling today that Fisher, now a computer programmer from Croydon, south London, was "guilty of excessive and inexcusable delay in asserting his claim".

Brooker, 62, lead singer of Procol [yes] Harum, went to the Court of Appeal last October after Fisher, 60, won a High Court ruling that he was entitled to 40% of the musical copyright.

The claim to joint ownership was made nearly 40 years after the recording of the song that sold 10 million copies and became one of the anthems of the 1967 Summer of Love.

A Whiter Shade of Pale has earned the status of an enduring classic and still earns substantial royalties for the owners of the copyright – originally Mr Brooker and the lyric writer Keith Reid.

In 2004, performing rights group Phonographic Performance Limited named it the most-played record by British broadcasting of the past 70 years.

More than 800 recorded cover versions by other artists are known.

Mr Fisher, a classically-trained musician, had claimed a half share from Brooker for his Hammond organ theme based on Bach fugues [sic].

He was awarded the lesser amount by Mr Justice Blackburne in the High Court in 2006 because the judge found that although Mr Fisher's contribution to A Whiter Shade Of Pale was "substantial", it was not as great as that of the singer.

The judge also rejected Fisher's claim for back royalties, which some sources had estimated at about £1 million.

Mr Brooker, who still fronts Procol Harum, is still fighting with Mr Fisher over who should pay the estimated £500,000 legal costs of the action.

Lord Justice Mummery said today that the costs issue would be decided at a later date together with an application to take the case to the House of Lords for a final appeal at the highest court in the land.

None of the parties was in court today for the formal handing down of the judgment by Lord Justice Mummery.

Mr Brooker, in a statement, said: "For nearly three years this claim has been a great strain upon myself and my family.

"I believe the original trial was unfair and the results wrong. Justly, the decisions of the Court of Appeal have gone some way to putting this right and I would hope that now, we can all get on with our lives."

Simon Platz, managing director of Onward Music Ltd which exploits the song, said: "This is a common sense decision that should have been made at the outset.

"I believe that the music industry as a whole needs to re-visit its contractual relationship with musicians. Hopefully this decision will also stop spurious claims in future."

Lawrence Abramson, a partner of media and entertainment lawyers, Harbottle & Lewis which handled the case, said: "I'm delighted with the outcome of the appeal. The original decision was a major concern to all publishing companies who were steeling themselves for old claims from any number of musicians. In the light of the Court of Appeal's judgment, most of these claims are now likely to fail."

Lord Justice Mummery, who gave the lead ruling of the three appeal judges who heard the case last October, said A Whiter Shade of Pale "is placed high in lists of the greatest songs of all time" and had achieved cult status.

He said the song had been exploited since it first became a hit 40 years ago on the understanding that Mr Brooker wrote the music.

But in May 2005, Mr Fisher, a member of Procol Harum between 1967 and 1969, began his case that he composed a significant part of the music.

Until that time he had neither claimed nor received any payment of any royalties earned from the song.

Mr Justice Blackburne had ordered an inquiry as to damages in relation to the exploitation of the work from May 2005 but dismissed a claim for past royalties. He ordered Mr Brooker to pay 90% of the costs of the case.

Lord Justice Mummery said the High Court judge was right to find that Mr Fisher made a creative contribution to the work and to grant a declaration of co-authorship.

But he said it was wrong to allow Mr Fisher a share of the earnings from the musical copyright.

His delay in making the claim "made it unconscionable and inequitable for him to seek to exercise control over the commercial exploitation of the copyright in the work".

Dissenting from the findings of two appeal judges, Mr Justice David Richards said he would have dismissed the entire appeal.

He said that where a defendant cannot show any detriment caused by delay in making the claim, it is not unconscionable for the claimant to assert future rights.