House of Lords' IP swan song: a Whiter Shade of Pale

Having been accused of "excessive delay" in bringing his action to be recognised as co-writer of Procol Harum's 1960s classic Whiter Shade of Pale, Matthew Fisher must have been impressed at the speed with which his legal action travelled through the Chancery Division of the High Court (remember Jarndyce v Jarndyce?), the Court of Appeal and now the House of Lords. You can read the decision in Fisher v Brooker [2009] UKHL 41, in full and hot off the internet here and here.

The Lord Law Lords (including one Legal Lady: Baroness Hale, who does remember the 1960s) have ruled that Fisher, who claimed he wrote the haunting pseudo-Bach organ melody which opened the song, is entitled to a share of future royalties.

In 2006 Mr Justice Blackburne concluded that he was entitled to 40% of the copyright. The Court of Appeal overturned the ruling last year on the basis that Fisher had waited too long (if 38 years can be said to be too long ...) to bring the case; accordingly the copyright nestled securely within the portfolio of rights owned by the group's frontman Gary Brooker and lyricist Keith Reid. Today the House of Lords, on its last day of judicial activity before metamorphosing into just another boring old Supreme Court, reinstated the decision of Blackburne J. In its view the delay in bringing the case had caused no harm to the other writers, who had indeed benefited financially from it.

The main speech was delivered by Lord Neuberger (still a teenager in 1967), who said Fisher had repeatedly asked if he could have a share in the rights to the record but was "rebuffed or ignored" by Messrs Brooker and Reid. Lord Hope added that there were no time limits under English law in copyright claims.

Lord Neuberger dealt with the Court of Appeal's decision as follows (at paras 72 onwards:
"... , the Court of Appeal upheld the judge’s conclusion that the judge was entitled to reject the respondents’ case on estoppel, but the majority went on to conclude that Mr Fisher was nonetheless not entitled to determine the licence which the judge found that he had impliedly granted. Mummery LJ’s careful analysis, ... reaching this conclusion and for setting aside the second and third declarations made by Blackburne J, seems to me to be encapsulated in the following two propositions. First, since May 1967, ... Brooker had, to Mr Fisher’s knowledge, continued “exploitation of the work on the basis that they owned all the copyright in it", and “it would be unconscionable for him [now], with a view to enforcing his property right by final injunction, to assert a joint share in the copyright and to terminate the implied licence under which he accepts the [respondents] have acted for very many years”... Secondly, Mr Fisher’s delay in bringing his claim means that “he could dictate his terms and put the [respondents] in a weaker bargaining position than they would have been in, had he made his claim in, say, 1967 or 1969” ...
As to the first of those reasons, it seems to me that, save in a very unusual case, it would be inconsistent to conclude that a claimant was not estopped from asserting his copyright interest, but then to refuse, on equitable grounds, to declare that the right existed. It is possible that there may be cases where such a course could be appropriate, but it would require wholly exceptional facts. ... if, as the Court of Appeal accepted, Mr Fisher originally had 40% of the musical copyright in the work and is not estopped from asserting it, then it is hard to see how he could be prevented from bringing proceedings simply for financial compensation or injunctive relief on the ground of copyright infringement. The refusal to grant him declaratory relief because he might seek an injunction on the back of it therefore seems to be questionable as a matter of principle.
In the present case, the majority of the Court of Appeal thought it appropriate to take such a course primarily because of the apparent inequity of Mr Fisher being able to seek an injunction to enforce his rights as the holder of an interest in the musical copyright in the work. .. this point ... involves the tail wagging the dog. If the declarations set aside by the Court of Appeal are reinstated, then, were Mr Fisher subsequently to apply for injunctive relief to prevent unauthorised use of the work, such an application would be dealt with on its merits. If the court was satisfied that it would be oppressive to grant an injunction in the particular circumstances, for instance because of prejudicial delay, it would refuse an injunction to restrain the infringement, and leave Mr Fisher to his remedy in damages ...
... if and when Mr Fisher seeks an injunction to restrain an alleged infringement of his copyright, it should be dealt with on its merits.
Further, the decision of the majority of the Court of Appeal deprived Mr Fisher of the ability not only to seek injunctive relief, but also to claim any royalties in respect of the exploitation of the work, of which he owned 40% of the musical copyright. (That must follow from the conclusion that he could not determine the implied licence). It is hard to see how that could be right, simply on the basis that it would be inappropriate to grant him injunctive relief, given that Mr Fisher was not estopped from asserting his 40% interest in the musical copyright in the work.
As for the change in the bargaining position of the parties between 1967 and 2005, that was neither pleaded nor argued before the Judge. In any event, there was no evidence that Essex or the respondents would have acted any differently from the way in which they did if Mr Fisher had pressed his claim in 1967 or in the ensuing few years. Further, there is also the judge’s finding ... that Mr Fisher’s very long delay in asserting his claim has been of considerable financial benefit to the respondents, effectively outweighing any disadvantage to them resulting from the delay.
The passage of time

... the basic problem for the respondents is that there is no English law statutory equivalent in the field of intellectual property to the doctrine of adverse possession in relation to real property .... the position in this jurisdiction is that the mere passage of time cannot of itself undermine claims such as those raised by Mr Fisher in the current proceedings. The respondents therefore rely on laches.
The argument based on laches faces two problems. The first is that ... laches only can bar equitable relief, and a declaration as to the existence of a long term property right, recognised as such by statute, is not equitable relief. It is arguable that a declaration should be refused on the ground of laches if it was sought solely for the purpose of seeking an injunction or other purely equitable relief. However, as already mentioned, that argument does not apply in this case. Secondly, in order to defeat Mr Fisher’s claims on the ground of laches, the respondents must demonstrate some “acts” during the course of the delay period which result in “a balance of justice” justifying the refusal of the relief to which Mr Fisher would otherwise be entitled. For reasons already discussed, the respondents are unable to do that. They cannot show any prejudice resulting from the delay, and, even if they could have done so, they have no answer to the judge’s finding ... that the benefit they obtained from the delay would outweigh any such prejudice".
The IPKat has ever since 2006 wondered why Fisher's share was put at 40%: Whiter Shade of Pale is a decently long track and he's sure the organ solo doesn't add up to 40% of its length.

Remembering the 60s here
BBC report here
House of Lords' IP swan song: a Whiter Shade of Pale House of Lords' IP swan song: a Whiter Shade of Pale Reviewed by Jeremy on Thursday, July 30, 2009 Rating: 5


  1. Valuing the percentage of someone's contribution is always going to be difficult, but I doubt that a simple quotient of the contributed part of a work over the whole is likely to be the right approach in most cases. Surely the extent to which it contributed to the work's success is a better one?

    And the opening *is* pretty memorable and I suspect without it the song would not have been the hit it was. Just as (I suspect) "Young at Heart" would not have been without the fiddle solo.

    I suspect the fact that the organ continues playing throughout the piece may have been a factor albeit that it alone would not have been enough for the judge to have found that Mr Fisher was a joint author.

    Two further thoughts: (i) it seems to me this is partly a result of the rather odd way in which one can be joint authors not in equal shares; and (ii) the defendants never put forward a positive case as to what they percentage should have been, leaving the judge to find his own way.

  2. It's interesting that the copyright wasn't split 50/50. In Ray v Classic FM (1998) it was stated that joint authors hold copyright as tenants in common, so are entitled to equal shares regardless of their input. However, in Bamgboye v Reed (2002):
    'the cases agree that if there are two or more persons who are joint authors they own the copyright in equal shares, but it is suggested that is not an invariable rule because sometimes the authors may be joint tenants rather than tenants in common and in that case until severance there are no shares. Mr Harbottle submitted -- and in my judgment this must be right -- that there is no requirement that joint authorship necessarily involves equality on a 50:50 basis. It would be possible for there to be, as it were, a joint ownership in unequal shares in principle.'
    But there's no explanation for why. This all seems to be very arbitrary! Joint authors are tenants in common - unless they aren't. Perhaps Mr Harbottle would like to explain?

  3. It appears that all concerned successfully managed to obscure the real issue; to wit, What in the world is this song about? What are the lyrics and what do they mean?

  4. I think it's important to clarify the Lord Hope limitation point which I think you've put slightly ambiguously: Lord Hope was saying that a claim TO copyright could not be time barred under the Limitation Act 1980 as its duration is prescribed under the CDPA as amended by the Duration Directive.

    As Neuberger points out, any claim for royalties (ie per an infringement claim) going back more than 6 years prior to the issue of proceedings would have been time barred, and the claimant accepted this.

    I have had a couple of cases recently where we've relied on time bar so I don't want Microsoft and others getting excited!

  5. Re the IPKAT's query on why Fisher should get 40% - surely it is all about quality, not quantity. The fact is that all most people remember is the organ intro and "we skipped the light fandango" - seems fair to me.


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