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the Pale

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Pop Goes to Court

 Omnibus Press • August 2008


'For some – fans and pundits alike – watching the rich and famous forced into court to settle their arguments and have their finances, private lives and preferences aired in public is what makes pop and rock truly entertaining. Going back over fifty years, Pop Goes to Court traces and chronicles some of the most famous, most notorious, most important and most ludicrous court cases involving best selling musicians ever to be set before judges and juries. Among the cases uncovered and revealed are those involving Elvis Presley, Ozzy Osbourne, George Michael, Apple, Metallica, George Harrison and The Smiths. Brian Southall worked as a journalist with Music Business Weekly, Melody Maker and Disc before joining A&M Records. He then began a 15 year career with EMI. Among other books he has written are the official history of Abbey Road Studios, the story of Northern Songs, the Beatles' music publishing company (both published by Omnibus Press), and the official story of the BRIT Awards, in addition to editing the best-selling Complete Beatles Recording Sessions.'

Please treat the following excerpt from Pop Goes to Court as an advertisement for this highly-interesting hardback book: click here to buy it from Amazon UK

That showpiece of the Essex Riviera, Southend-on-Sea, was the birthplace of ProcoI Harum back in 1962, although the group's first – and unsuccessful – attempts to climb the charts were made under the name of The Paramounts. Four years on, The Paramounts were no more, despite supporting The Beatles on a tour and The Rolling Stones once dubbing them as their favourite UK R&B group. However, founder member Gary Brooker had discovered a new songwriting partner in Keith Reid.

An advert in Melody Maker brought forth not just a bunch of new musicians, but also a new identity. Procul [sic] Harum was born as a vehicle for the songs of Brooker and Reid. History suggests that this new name was derived from the Latin procul meaning [sic] ‘far from these things’; or perhaps from producer and mutual acquaintance Guy Stevens, whose best friend's pedigree cat was called Procol [sic] Harun (sic).

Either way, the new group started in the spring of 1967 with pianist and vocalist Brooker recruiting Matthew Fisher on organ, guitarist Ray Royer, bassist Dave Knights and drummer Bobby Harrison, while Reid was the non-performing, creative sixth member of the group. Together, Brooker and Reid came up with a treatment of a surreal poem written by Reid called A Whiter Shade of Pale. Under the direction [sic] of producer Denny Cordell, Brooker set the words to music adapted from Johann Sebastian Bach's Air On A G String and [sic] Sleepers Awake.

It also featured a haunting organ solo and melody, played and created by Fisher, which was also inspired by Bach. The recording featured session player Bill Eyden on drums rather than Harrison. In May 1967, as the band performed the song at London's trendy Speakeasy club, Cordell took a demo [sic] recording to the Deram division of Decca Records, while also sending one to influential pirate radio station Radio London.

Running just under four minutes, A Whiter Shade of Pale – the title came from Reid overhearing a man say to a girl, ‘You've gone a whiter shade of pale’ – caught the attention of New Musical Express singles reviewer Derek Johnson that same month. ‘A gripping blues-tinged ballad, warbled in heartfelt style by the soloist. The outstanding backing highlights some delicious organ work. Hummable and thoroughly impressive.’

Listener reaction persuaded Decca to rush-release the song and, before the end of the month, Deram DM 126 was in the shops. The published credit for both A Whiter Shade of Pale and the B-side, Lime Street Blues, went to Reid and Brooker, with Essex Music listed as the publisher, and Denny Cordell named as producer for his New Breed Productions company.

By early June, A Whiter Shade of Pale was at number one in the UK, staying at the top for six weeks and selling over 600,000 copies along the way. It was dethroned by The Beatles with All You Need Is Love.

At the time, the band were only the sixth act to hit number one in Britain with their début single, and the haunting melody, plus the bizarre and baffling lyrics, turned A Whiter Shade of Pale into one of pop music's true classics. A top-five spot in America took the record's sales over the one million mark, with a further nine million to come over the following decades. The record, voted Best Single of 1967 in the New Musical Express poll and named International Song of the Year in March 1968 at the prestigious Ivor Novello Awards, became a Top 20 hit again in Britain when reissued in 1972.

Five years later it was announced as joint Best British Pop Single 1952–1977 (alongside Queen's Bohemian Rhapsody) at the British Record Industry Awards to celebrate the Queen's Silver Jubilee. There have also been over 700 cover versions of the song over the years, including Annie Lennox's 1995 version, which reached the UK Top 20. From the outset, Fisher's Hammond organ introduction and melody played an important part in the song's distinctiveness. Forty years later, it brought Procol Harum's original 1967 hit back to centre stage – in a court of law.

In November 2007, organist turned computer programmer Fisher began legal action to get his contribution to the hit song legally and formally recognised. He also sought a share of the song's copyright and royalties earned from sales stretching back over four decades. He made the claim against Brooker and Onwards [sic] Music Ltd., leaving Reid out of the action as his role as lyricist was not in dispute. Although the song had originally been published by Essex Music, it subsequently assigned the rights to Essex Music International, which was renamed Westminster Music. In turn, it later passed the song on to Onwards [sic] Music Ltd. from December 1991.

Pop music has, over the years, been littered with claims and counterclaims as to who wrote which part of a song. Cases involving groups such as Spandau Ballet and The Smiths ended up going to court, while musicians and composers such as The Shadows, Chuck Berry, George Martin and Otis Blackwell have all accepted situations where their creativity was either overlooked on the credits or shared with a non-contributing partner for ‘political’ career-enhancing reasons.

For bands such as R.E.M., Pulp, and Coldplay – and in the notable case of Lennon and McCartney – sharing the credits irrespective of who wrote the song has been the easiest and fairest solution. However, Procol Harum's singer and band leader, Brooker, stood firm in his resolve as to who did what and who was entitled to share the credit on A Whiter Shade of Pale.

Before the trial began in London's Chancery Division, he made clear his thoughts on his former bandmate's action in a statement on the band's [sic] 'Beyond the Pale' website. ‘I am shocked and dismayed that, after Matthew had worked with us quite happily over the course of nearly 40 years without him once alleging that his role on A Whiter Shade of Pale was anything other than as a musician, it is only now that he claims to recall 'composing' part of the song. I think people will draw their own conclusion from this.’

In response, Fisher’s solicitor, Mike Shepherd, said that the time between the song's release and the court proceedings was irrelevant. ‘My client has always maintained he wrote the parts, or composed the parts, he claims he composed.’ Shepherd said that Fisher could claim royalties on the song for the previous six years, but declined to put a figure on the amount he might receive if he won the case.

Opening before Mr Justice Blackburne, the case began in the High Court on 13 November 2007, with Ian Purvis QC representing Fisher and Andrew Sutcliffe QC for Brooker and Onwards [sic]. Purvis opened the proceedings by asking the judge – in order to avoid what he called ‘a Beatles moment’ – if he was aware of the band Procol Harum and their lasting hit from the Swinging Sixties.

‘I am of that age, yes,’ said the judge, who revealed that an organ had been installed in his private quarters before adding, ‘It may be that at some stage, after hours, I may want to work through the sheet music evidence. The natural thing to do is play it to myself.’

In fact, Mr Justice Blackburne was well qualified to hear evidence in a case involving a Sixties pop song. Aged 61, he had studied both music and law at Magdalen [sic] College, Cambridge, and had heard cases involving Spice Girls manager and Pop Idol creator Simon Fuller and X-Factor creator Simon Cowell.

With the media suggesting that Fisher's claim for back royalties could be worth over £1 million, those present in court were treated to an impromptu performance by the organist. The introduction to the record featured Fisher's organ solo, accompanied only [sic] by a drum beat. Fisher gave a 40-minute rendition and bar-by-bar analysis, which the judge followed from a transcribed music score. The song features an eight-bar introduction, a 16-bar verse, an eight-bar chorus, a repeat of the eight bar intro, a 16-bar verse, a repeat of the eight-bar chorus and a variation on the eight-bar intro, followed by a final two-bar reprise of the chorus.

In the record, Fisher's playing was heard for just two minutes and 36 seconds, but he confirmed to the court how he had developed the solo and melodies that appeared on A Whiter Shade of Pale, using his enthusiasm for the works of Bach. He said he made chord changes to Brooker's original sequence and developed a counterpoint to the melody.

‘How did they get there if it wasn't for me? I finished that organ solo at home, partly from ideas floating around in my head and partly from rehearsals, whereas the original organ melody arose purely from rehearsals. This was a song not for people who are used to listening to Schubert or Benjamin Britten, but intended for the man in the street. We didn't want it too adventurous or avant-garde.’

Admitting that his relationship with Brooker hadn't always been ideal, Fisher said, ‘There's always been a tension between me and Gary. The whole question of A Whiter Shade of Pale has always been there. It's like walking into the room and seeing a dead person. He knew it was there, I knew it was there, but nobody mentioned it. There was a lot of subconscious anger.’

Purvis explained to the court that the 60-year-old musician, who first left Procol Hamm in 1969 after producing the band's acclaimed album A Salty Dog but had returned on various occasions over the years, had delayed making a formal legal claim for 38 years because he had been unaware of his legal entitlement. Purvis added, ‘We are dealing with one of the most successful pop songs ever written by British artists.’

On the second day of the hearing, Fisher said that he felt aggrieved not only because of the alleged unpaid royalties, but also because he had lost his place in British pop history. ‘It was not until the Eighties that the song began to acquire its cult classic status. Here we have a song which is going to go down in history which ought to have my name on it and it doesn't.’

When it was put to him under cross-examination that he was making his claim after nearly four decades of reaping the benefits in Procol Hamm, Fisher replied, ‘That's the funniest thing I've heard. If I could go back in time I would not have joined Procol Harum, I would have joined another band.’

Brooker's counsel, Sutcliffe, also suggested to Fisher that when the song was first presented at rehearsal it was complete, and featured the distinctive, Bach-inspired introduction. ‘The writing Keith and Gary were doing needed fleshing up. I reject any suggestion that there was any memorable tune,’ was the organist's reply, although he accepted that it had been Brooker's idea to compose a song based on Bach.

‘I thought that was brilliant,’ said Fisher, ‘but he didn't really have the background to carry it through to its conclusion. I came in to finish the job. If you take out my contribution, you would have had a song that would never have been released. We're getting into this fiction that he wrote this tune and I just adapted it. That is completely false.’

Following Fisher into the witness box was Procol Harum's former drummer, Robert Harrison, who talked about the ‘before’ and ‘after’ versions of the song. Although not on the original recording and only with the group between March and July 1967, Harrison gave evidence about how different the material he had heard sounded after the addition of Fisher's Hammond organ. Harrison recalled visiting Brooker in 1967, when the vocalist played him some material recorded before Fisher's arrival. ‘There was bass, drums and piano, but I don't remember a Hammond,’ said Harrison. ‘I think it is significant because it did not have the organ on it.’

Hearing the song later at his audition to join the group, he said it had been transformed. ‘That's when I heard the difference.’ The drummer, who sued Brooker over royalty rights and reached a confidential settlement in 1969, said that while he always viewed Brooker as the leader of Procol Harum, he was always under the impression that ‘Matthew was one of the main writers in the band’.

Coincidentally, Harrison drummed [sic] on Fisher's 1973 solo album, Journey's End, which contained the track Going For A Song. ‘Please don't make me sing that song again... I’ve sung it so many times,’ appeared to refer to A Whiter Shade of Pale, although Fisher never actually sang it!

During his evidence, Brooker, who continued to perform under the group name Procol Harum, acknowledged that, during early rehearsals of A Whiter Shade of Pale, he and Fisher had improvised their respective instrumental sections over the original chord sequence composed by Brooker.

He accepted that each musician in the band had their own ideas when improvising, and that the band's philosophy allowed group members to make their own musical contributions. However, both Brooker and Reid in their witness statements remained adamant about the structure of the song.

‘In spite of differences between the piano and organ, what was played by Matthew in rehearsal and on the recording, both in harmonic and melodic terms, was essentially the same as what I had composed at the piano,’ claimed Brooker. Lyricist Reid added, ‘The difference between the song as it was when Gary and I wrote it and the version released on the record was that the song was much longer when we first wrote it. Otherwise it's the same.’

The band's wordsmith continued, ‘It had the introduction and melodies that everyone recognises. Of course, in the recorded version they are adapted and played on Hammond organ. And obviously the record has a full instrumentation – drums, bass, lead guitar, Hammond organ, vocals and piano. Even with a different organist, the record would have sounded essentially the same.’

Under further cross-examination from Purvis, Brooker accepted that he had given Fisher the job of effectively creating the best solo he could, but he took issue with the suggestion that the introduction was the result of a careful composition process.

‘Might I just ask this,’ said the singer. ‘When somebody says composing, is there really a definition of what that means?’ Purvis suggested, ‘Let's use a more neutral term. A careful creative process?’ Brooker accepted that. ‘It was a careful creative process, yes.’ At this point Mr Justice Blackburne interrupted to ask, ‘On whose part?’ Brooker replied, ‘On Matthew's part.’

Asked whether the melody in the song was Fisher's melody (‘It's his tune, he came up with it’, Purvis insisted), Brooker answered, ‘Again I would say that not all those notes were thought of by Matthew. They were based upon what he had heard me play or even the way I had improvised it at times. He ended up with these notes, which he repeated.’

Brooker conceded that he hadn't played all the way through the melody of eight bars in the form that Fisher wrote them. When asked directly by counsel, ‘It's Matthew's composition?’ Brooker answered, ‘In this form on these eight bars, it is.’

Before the hearing ended, Brooker's wife, Françoise, was brought into the case to be a witness as to how the song sounded in rehearsal and on record. ‘The song, as Gary played it to me on the piano, was the same as the recorded version and included the now famous introduction,’ she confirmed.

While the hearing ended in November, it was not until 20 December 2006 that Mr Justice Blackburne gave his judgement. He quickly concluded 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.

‘I do not accept that the existence prior to 7 March 1967 of a demo recording by Mr Brooker of the song provides any defence to Mr Fisher's claim.

‘Mr Fisher made his contribution as part of a collaborative effort with Mr Brooker and the other band members without anyone at the time considering what, in copyright terms, the consequence was of his so doing. The consequence in law was that he qualified as a joint author of what resulted.’

Procol Harum's Gary Brooker, who described the Whiter Shade of Pale judgement as a ‘darker shade of black’. Ex-Procol Harum keyboard player Matthew Fisher claimed he was a co-composer of Whiter Shade of Pale.

The judge also referred to an interview given in 1982 by Reid in which he said there were three things about the recorded version of A Whiter Shade of Pale. ‘There's the song, Gary's singing and the organ playing... the organ player plays whatever he thinks of playing so Matthew contributed his organ part, just the same as if there had been another organist, he would have played something else... that particular song gave him [Fisher] probably the scope to write a part.’

Commenting on the remarks, the judge stated, ‘It is clear that, at that time at least and in marked contrast to his evidence before me, Mr Reid considered that it was Mr Fisher who wrote the organ part.’

The outcome was not looking good for Brooker, although the judge admitted that he found both Brooker and Fisher to be ‘honest witnesses’. Admitting that he found the delay between's Fisher's first claim of authorship – supposedly made informally to Brooker on a train journey in 1967 – and lodging an official claim in 2005 ‘quite extraordinary’, the judge declared that it was not a barrier to the action as the main parties were still alive.

‘Relevant to this is that Mr Fisher's interest in the musical copyright is a property right. It has many years to run. The fact that, for whatever reason, he has not sought to establish that interest before now does not mean that, by declining a declaration, the court should make it difficult for him to vindicate and enforce that interest so longs as it lasts, in the future.’

Explaining that it would be a ‘wholly extravagant and unjust result to deprive Fisher for the remainder of his life and 70 years thereafter of his interest in A Whiter Shade of Pale’s musical copyright’, the judge said he could find no reason not to grant the declaration that Fisher was the co-author and joint owner of the musical copyright of the recorded and released hit version of the song.

Settling the financial side of the case, Fisher, who had asked for a 50% share of the royalties with Brooker, was awarded a 40% share of the total musical copyright backdated to May 2005, when he had first filed proceedings in the case.

While Fisher was also granted a co-authorship credit on the song, the judge took the view that even though the organist's contribution on the record was ‘substantial’, it was not as great as Brooker's.

However, while the judge decided that Fisher was not entitled to any past royalties, he allowed that, as he ‘was successful in establishing a copyright interest’, he was due a share of Brooker's half of the song's royalties. He was granted a 20% cut, with Brooker's share being reduced to 30%, while Reid, who was not part of the action, retained his full 50% share as the song's lyricist.

As Brooker was granted leave to appeal the decision, payment of back royalties to Fisher was withheld, but costs – expected to be over £500,000 – were awarded against Brooker, who did not appear in court to hear the judge's decision.

A victorious Fisher, who had returned to play with Procol Harum on various occasions after his 1969 departure, told reporters after the case that he was ‘dazed’ before adding, ‘I think I can assume that from now on I'm not going to be on Gary's and Keith's Christmas card lists, but I think it's a small price to pay for finally securing my rightful place in rock 'n' roll history.’

Understandably less pleased were Brooker and his original co-writing partner, Reid, who issued a statement that suggested the ruling ‘creates a ticking time bomb ready to explode when the musician chooses’.

Expanding on this theme, Brooker explained, ‘No longer will song-writers, 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. It is effectively open season on the songwriter. Songwriters and publishers will now have to view all musicians with suspicion as potential claimants to a share in their copyright.’

Describing the judgement as ‘a darker side of black’ for the music industry, Brooker went on to attack Fisher. ‘It's hard to believe that I've worked with somebody on and off since 1967 whilst they hid such unspoken resentment.

‘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,’ he said, before turning his attention to the German classical composer whose music was at the heart of the court case. ‘Johann Sebastian Bach deserves the credit for his inspiration to all musicians.’

While Fisher – after life as a rock star – turned to work as a computer programmer, Brooker remained committed to life both as a musician and as keeper of the flame for Procol Harum. And despite what the court said, he was not prepared to share either his royalties or composer’s credit with Fisher without a further fight.

In October 2007 he launched an appeal, the result of which was announced in the High Court in April 2008. His perseverance paid off as the Court of Appeal overturned the 2006 ruling and returned to him the right to the full royalty on A Whiter Shade of Pale on the basis that Fisher took too long to make his claim.

Lord Justice Mummery ruled that Fisher ‘silently stood by and acquiesced in the defendant's commercial exploitation of the work for 38 years’. As a result he was ‘guilty of excessive and inexcusable delay in his claim to assert joint title to a joint interest in the work’.

In the appeal hearing, Brooker's counsel, John Baldwin QC, explained that Fisher had failed to take the case to court earlier because he knew it would be the end of his career in the group. ‘He wanted to stay in the band and live the life of a pop star. Being a litigant was not something he could do alongside that and he realised what he would have to give up.’

While the three Appeal Court judges agreed by a majority that Fisher had contributed to the song and was entitled to a co-authorship credit, they ruled that he was not entitled to any past or future royalties from sales of A Whiter Shade of Pale.

After the hearing, Fisher's solicitor suggested the legal battle was not over and that the former Procol Harum organist would apply for permission to appeal to the House of Lords.

‘The court has accepted the decision that he co-wrote it, which was the primary issue for Matthew,’ said Mike Shepherd, ‘but he is disappointed about the future royalties. It seems to us that if someone contributed a significant part to a composition, why shouldn't they get the future income?’

Understandably, Brooker was happier with the outcome and, in a statement, he described the claim by Fisher as ‘something I would rather have dealt with 40 years ago’. He added, ‘I believe the original trial was unfair and the result wrong. Today the decision of the Court of Appeal has gone some way to putting this right, and I would hope that now we all get on with our lives.’

But despite his request for a return to normality and with victory under his belt, Brooker is continuing his fight with Fisher over who should pay the estimated £500,000 legal costs of the lengthy action.

After Procol Harum split in 1977, the pianist and singer recorded three solo albums, toured with Eric Clapton and wrote music for a number [sic] of ballets before, together with Reid, Fisher and original Paramounts' guitarist Robin Trower, he reformed Procol Harum in the early Nineties.

Since then the band – with a varied collection of musicians not [sic] including Fisher – has continued to tour, and no doubt Brooker will feel happier about featuring one particular song in their set, knowing that irrespective of the composer's credit, he won't be sharing his royalties.


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