Court of Appeal allow appeal against Procul Harum organist Brooker Onward Music v Fisher [2008] EWCA Civ 287

May 2008

Music publishing

The Court of Appeal (Lord Justice Mummery, Mr Justice David Richards and Sir Paul Kennedy) has partially allowed the appeal by Procul Harum frontman Gary Brooker against former keyboard player Matthew Fisher. The appeal was against the 2006 decision of Mr Justice Blackburne which awarded Fisher 40% of the music writing royalties of the classic pop song ‘A Whiter Shade of Pale’, the UK’s most popular radio track ever. Whilst the Court of Appeal agreed With Blackburn J that Fisher was a co-author of the work, they held that Fisher’s delay in bringing the case in 2006, 38 years after the track was released, was fatal to his claim for royalties. The Court agreed that Fisher’s ‘Bach inspired’ Hammond organ solo at the beginning of the track was intrinsic to the song’s melody and indeed that Fisher was a co-author of the work and had made a significant contribution – but The Court of Appeal held that by silently standing by and acquiescing in the commercial exploitation of the Work without taking action, Fisher “led [Brooker] to act for a very long period on the basis that the entire copyright in the Work was theirs”.  Mummery LJ said that this acquiescence made it “unconscionable and inequitable for him to now seek to exercise control over the commercial exploitation of the copyright in the Work” and that ‘excessive and inexcusable delays’ in asserting his claim” meant that Fisher would not receive any past or future royalties.

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