Court of Appeal overturns A Whiter Shade of Pale royalties ruling

United Kingdom

The Court of Appeal has overturned the High Court’s ruling of December 2006 which granted the former organist of the band Procol Harum a 40% share in the musical copyright in the band’s 1967 hit single “A Whiter Shade of Pale” 38 years after the record was first released.


“A Whiter Shade of Pale” as recorded by the Procol Harum and released on 12 May 1967 is one of the most successful and well-known songs ever recorded, with world-wide sales in excess 6 million and over 770 cover versions.

Before the band Procol Harum formed, its current frontman Gary Brooker composed the music to “A Whiter Shade of Pale”. Keith Reid wrote the lyrics. In March 1967, Mr Brooker and Mr Reid assigned their copyright in the song’s lyrics and music to Essex Music Limited. Essex Music Limited later assigned their rights to Essex Music International Limited which in turn assigned them to Onward Music Limited in December 1991. Mr Brooker and Mr Reid then formed the band and Matthew Fisher subsequently joined as an organist. During rehearsals of the song, Mr Fisher improvised a distinctive organ solo which features in the song’s eight-bar introduction. The version of the song containing this organ solo was recorded and released as a single in 1967. It is referred in this article as the “Work”.

When Mr Fisher left the band in August 1969, he did not relinquish his entitlement to a share of the copyright or to royalties earned from the sale of his various compositions, including the Work. Although he was aware of his ability to claim an interest in the copyright in the Work or royalties earned from it, at this stage, he did not notify Mr Brooker or Essex Music of any such claim. The main reason for Mr Fisher waiting so long before making his claim was highlighted by his counsel who stated that Mr Fisher “wanted to stay in the band and live the life of a popstar” and that bringing proceedings would bring an end to his career with the band.

The facts

On 31 May 2005, Mr Fisher brought proceedings against Mr Brooker and Onward Music Limited (the “defendants”) to claim what he believed to be his rightful share of the copyright in the Work and its associated royalties.

In the High Court case Mr Fisher claimed that he owned the copyright in his organ solo in the Work and he sought:

  • A declaration that he owned a 50% share of the copyright in the Work.
  • An injunction to prevent the defendants from exploiting the copyright in the Work without his consent.
  • Reimbursement of his share of past royalties paid by societies who collected in and paid out royalties to the defendants in the six years before the claim was issued.

In only granting the first of Mr Fisher’s three requests, the High Court judge made the following declarations:

1. Mr Fisher was the co-author of the Work by virtue of his “significant and hugely famous” 8 bar organ solo melody.

2. Mr Fisher was a joint owner of the musical copyright in the Work, of which he was entitled to a 40% share rather than the 50% claimed. This was because Mr Fisher’s contribution to the Work, although substantial, was not as substantial as that of Mr Brooker.

3. The defendants’ implied licence to exploit the Work was revoked on 31 May 2005 when Mr Fisher first brought his claim against Mr Brooker and Onward Music Limited.

The judge refused to grant an injunction in the absence of “any intention on the defendants’ part to exploit the musical copyright in the Work in defiance of any interest in it which Mr Fisher is able to establish.” Further, he dismissed Mr Fisher’s claim for past royalties on the ground that the defendants benefited from an implied licence from Mr Fisher to exploit the Work until his claim was issued on 31 May 2005. Only after that date did he have a right to share in the royalties. Mr Fisher did not appeal these decisions. However, the defendants appealed against the declarations.

This appeal case addressed the disputed matters of the authorship of the Work, the ownership of the copyright in the Work and the exploitation of the copyright and entitlement to royalties after 31 May 2005.

Key points of the decision

By a majority ruling of two to one, the appeal against two of the High Court’s three declarations was allowed. The Court of Appeal agreed with the High Court judge’s finding that Mr Fisher made a creative contribution to the Work and his granting declaration (1) as to his co-authorship. However, the appeal was allowed against declarations (2) and (3). Lord Justice Mummery made the following comments:

  • Mr Fisher was guilty of excessive and inexcusable delay in asserting his claim to title to a joint interest in the Work. He stood silently by and acquiesced in the defendants’ commercial exploitation of the Work for 38 years.
  • His acquiescence has made it unconscionable and inequitable for him to seek control over the commercial exploitation of the copyright in the Work. For this reason declarations (2) and (3) should be set aside.
  • As the implied licence has become irrevocable due to his acquiescence, Mr Fisher cannot claim damages for infringement of copyright, or any share of the monies collected by the copyright collecting societies, or royalties in the future as the price for granting an express licence for the exploitation of the copyright in the Work. For these reasons the order for an inquiry as to damages since 31 May 2005 should be set aside.

The judge criticised Mr Fisher’s claim in stating “it was unconscionable conduct on the part of Matthew Fisher to wait for 38 years, with knowledge and without reasonable excuse, while the defendants exploited the Work before notifying his claim to co-ownership of the copyright in the Work.

The question of who should pay legal costs in the claim remains to be decided.


Some interesting practical guidance for record and publishing companies also came out of from Lord Justice Mummery’s judgment. He stated that they “might be well advised to obtain assignments in writing from performers to cover arrangements of music that may have been 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.

The dissenting judgment of Mr Justice David Richards should be noted. His view was that where the defendants have retained all past earnings and have suffered no detriment from Mr Fisher’s delay, there would be no injustice in his interest in the copyright being now established for the future. If Mr Fisher is able to appeal his case to the House of Lords, it remains to be seen what impact, if any, Mr Justice David Richard’s dissenting opinion will have on the outcome of any such appeal.

In the meantime, record companies will appreciate this decision as it may reduce the future likelihood of claims for past royalties being brought several years after a song is recorded.

For the full text of the decision, click here.