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Music copyright: time to skip the light fandango?

June 2008 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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THE RECENT COURT OF APPEAL DECISION IN BROOKER & anor v Fisher [2008] will undoubtedly have caused a much welcomed sense of relief across the music industry. However, following that judgment, some questions do remain unanswered, and have the potential to cause further problems for those in the music business.

In the past, there have been several instances of musicians coming forward after a period of many years and making a claim for recognition of their contribution to a particular song. In all cases, the instinctive reaction of the relevant right-holder has been that the artist bringing the claim should not be able to disturb ownership shares that have stood for many years, and in most cases the claims have failed – eg, Godfrey v Lees [1995] and Hadley & ors v Kemp [1999].

Hodgens v Beckingham [2003] – in which the High Court concluded that a session musician was a joint author and was therefore entitled to a share in the music copyright – was considered very much an exception decided on its facts, until in Fisher v Brooker & anor [2006] the judge at first instance determined that Matthew Fisher was entitled to a joint interest in the 1967 hit single A Whiter Shade of Pale.

BACKGROUND

Without doubt, the facts in Fisher v Brooker are unusual.The song was originally written in 1967, when Gary Brooker composed a musical score to accompany words composed by Keith Reid. A demo of the work was produced, on the back of which Brooker and Reid were offered recording contracts by Essex Music. By this time, Brooker had been joined by various other musicians and Procol Harum was formed. Fisher became the band’s organist.

When released, A Whiter Shade of Pale became one of the most popular and recognisable rock songs of the century. From the date of release, it was credited as a Reid-Brooker composition. It was never suggested that Brooker or Reid wrote a score for the other musicians in the band, and everyone accepted that the other musicians improvised their respective parts, always keeping within the framework of the chord sequence composed by Brooker. Fisher’s evidence was that in 1967 there was a discussion between him and Reid over whether his contribution towards the composition of the now legendary organ solo was sufficient to entitle him to a share of copyright, but he claimed that it was made very clear to him that if he made such a claim, he would have to leave the band. Rather enjoying his new-found life as a pop star, Fisher elected to abandon his claim to any copyright share in A Whiter Shade of Pale, and instead to remain with the band.

HIGH COURT CLAIM

Thirty-eight years passed before Fisher brought his claim in the Chancery Division in 2005. Against all expectations, he succeeded. The judge rejected Brooker’s submission that after this length of time a fair trial was impossible. Though plainly troubled by the length of Fisher’s delay, the judge found that overall, on the balance of justice, neither Brooker nor Essex Music had suffered any prejudice from this delay, and rather, if anything, had benefited from being able to keep the full proceeds of the exploitation of the song to themselves. The judge held that Fisher had a copyright interest in the song, but that he had granted Brooker and Essex Music an implied licence to exploit that copyright, which licence was terminable at will. It was deemed that the licence had now been terminated and that henceforth Fisher was entitled to a 20% share of the copyright in the song and to receive 20% of all income arising from its exploitation.

COURT OF APPEAL DECISION

The Court of Appeal disagreed that Fisher should be entitled to a share of the copyright. Giving the leading judgment, Mummery LJ held that Fisher’s acquiescence in the commercial exploitation of the work since 1967 made it unjust that he should be permitted to succeed in his claim to a joint interest in the work or be allowed to revoke the implied licence he had granted, irrespective of any prejudice suffered by Brooker or Essex Music. He therefore found that the implied licence had become irrevocable by virtue of such acquiescence. As a result, Fisher was not entitled to any damages for copyright infringement, nor to any share of royalties to be received from the future exploitation of the song.

Like the judge at first instance, however, the Court of Appeal did reject the defendant’s argument that the length of time elapsed and the absence of a number of key witnesses made a fair trial impossible. The Court of Appeal felt able to rely on the first-instance judge’s assessment of the position. The judge had said that he had found both Brooker and Fisher to be credible and reliable witnesses with a clear recollection of the events of 1967 and, accordingly, he felt it appropriate that the trial go on, notwithstanding the difficult circumstances.

THE ARRANGEMENT POINT

One of the most interesting of the legal arguments raised in the trial remains unresolved, namely what became known as the ‘arrangement point’.

Copyright in a song subsists from the moment it is reproduced in a material form. In the case of A Whiter Shade of Pale, this was when Brooker and Reid made their original demo. There is no dispute that they were the original owners of the copyright in the original version of the song. At the time the demo was made, Fisher had yet to meet Brooker or Reid, let alone join the band.

The music industry recognises only two forms of a subsequent version of a song, namely a cover (where reproduced in identical form and where no second copyright comes into existence) and an arrangement (where a second copyright comes into existence, but which can only be done lawfully with the consent of the original work’s copyright owner, and in practical terms such consent will only be given on terms of the copyright in the arrangement vesting in the original copyright owner).

There seems little doubt that the version of A Whiter Shade of Pale as released, complete with guitar, bass, drums and organ, amounted to an arrangement of the original work – the demo, played on the piano alone. Given that Fisher was told in no uncertain terms that he would not be given a share of the copyright to A Whiter Shade of Pale as released, it seems difficult to conclude anything other than if the question of consent to an arrangement had been raised at the time, the then owners of the copyright, Brooker and Reid, would only have consented to that on the terms that copyright of the arrangement remained vested in them. The judge sought to deal with this point at first instance by rejecting the idea that the version of the song on the demo constituted a copyright work at all, instead deeming it to be akin to a draft of a work. This, it is submitted, was plainly wrong. The Court of Appeal recognised that there was some force in the point, but in the light of their findings elsewhere, found it unnecessary to decide the issue, and so the arrangement point remained unresolved on the particular facts of the case.

AN UNCERTAIN FUTURE

Although generally welcomed by the music industry, the Court of Appeal’s ruling was largely down to the unusual facts of the case. The delay by Fisher was without doubt an extreme example, but it is by no means certain that a court would reach the same conclusion again, even on similar facts, especially if there is no ‘election’ by the artist not to pursue their claim. Therefore, an absence of clarity remains as to exactly what will constitute excessive delay in each and every case. It is also unfortunate that the Court of Appeal did not determine the arrangement point, which might have put an end to these types of claim once and for all.

It is, of course, highly desirable that recording and publishing companies ensure that their written agreements are clear on the position of copyright infringement arising not only from an original song as composed, but also from any later variation or adaptation that may lead to the creation of a separate copyright interest not accounted for by the original agreement. The Court of Appeal even went so far as to direct some guidance to the music industry:

‘In future, record and publishing companies might be well advised to obtain assignments in writing from performers to cover arrangements of music that may have improvised and so created new copyright works during rehearsal or recording sessions that are not covered by earlier formal agreements. It is in everybody’s interest that there is certainty about the ownership of the rights necessary for the exploitation of the copyright in the interests of all concerned.’

At the time of writing, it is unclear whether Fisher will obtain permission to pursue his case further to the House of Lords. Although very much a case on its facts, it must surely be the position that the failure of Fisher’s claim will dissuade many other musicians from making similar claims, whereas if he is ultimately successful before the House of Lords, the music industry will have to brace itself for a large number of further claims. So at this stage it is perhaps a little too early for the music industry to be skipping the light fandango, at least until Fisher’s petition has been rejected by the House of Lords.

By Lawrence Abramson, partner, and Tim Bamford, solicitor, Harbottle & Lewis LLP.

E-mail: lawrence.abramson@harbottle.com; tim.bamford@harbottle.com.

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