On Wednesday, 5 November 2008 the House of Lords' Appeal Committee decided that my petition for permission to appeal the Court of Appeal's Order dated 14 May 2008 to the House of Lords should be granted.
The Appeal has now been heard (22nd - 23rd April 2009) and I await the outcome.
This has been a long, painful ordeal for me and my family and I am glad that
whatever the verdict, this case is now over.
The famous organ tune from A Whiter Shade of Pale, which Gary Brooker
admitted under oath was written by Matthew Fisher
Following the announcement of Phonographic Performance Ltd's 75th anniversary, it was once again brought to our attention that A Whiter Shade of Pale was their most-played record of all time. Since the song is still the subject of an on-going lawsuit, this spawned a couple of articles in the press, some of which (I name no names) suggested that the question of my co-authorship had still not been settled.
In fact it has been widely reported that the Court of Appeal unanimously upheld my attribution of authorship and the only reversal was that my statutory right to receive royalties for the song I wrote disappeared under somewhat mysterious circumstances.
Read this excellent critique from the Swan Turton website.
Here is a refreshingly accurate article by Simon Conroy from www.steeleslaw.co.uk.
(NB. I am informed Simon Conroy is no longer with Steeles Law but has moved to
Calvert Solicitors where he can be reached at email@example.com)
The recent decision by the Court of Appeal has confirmed my joint authorship of A Whiter Shade of Pale but denied me any control over its future exploitation.
The announcement of this decision has been followed by a number of media reports depicting Gary Brooker as a reasonable and fair-minded person, who would infinitely have preferred to settle this dispute in an amicable and gentlemanly way, without recourse to litigation, whereas I am portrayed as an intransigent and vengeful fiend who was determined, whatever the cost, to drag the unfortunate Mr Brooker through the courts.
I think it is high time to dispense with bizarre fantasies of this kind and look squarely at the facts:
At the original trial an early letter from Gary's lawyers was read out in open court, stating clearly and unambiguously:
[Emphasis added]"Our clients have no intention of ceding to your client any form of copyright interest in the song ... our clients will defend these proceedings to the bitter end. They will refer the court to this letter on the issue of costs and will look to enforce all possible costs remedies they have available to them.
In the case of your client they will pursue him to bankruptcy."
Throughout the litigation Gary stuck doggedly to the position stated above and flatly refused to admit that I had composed any part of A Whiter Shade Of Pale - in fact he signed a Witness Statement to this effect, and then hired a very expensive Expert Witness to back him up.
Yet when Gary himself was put in the witness box under oath to tell 'the truth, the whole truth and nothing but the truth' he very commendably did exactly that - and freely acknowledged that I had created the entire organ part from beginning to end. He even insisted on demonstrating, on a keyboard in the courtroom, that my organ part was completely different from the sort of thing he had been playing before I joined the group.
No wonder Mr Justice Blackburne concluded that on the authorship question 'there was really no contest'.
In view of this it is, frankly, astonishing that throughout the long run-up to the trial Gary persistently made it clear that the burning issue for him was the question of authorship, and that he was intent on fighting me to the bitter end to dispute this central point.
Predictably, and justly, on the authorship issue I have won. Both Courts have now recognised Gary and me as joint authors of the music in A Whiter Shade Of Pale, and Gary will just have to accept this. All four of the judges who have considered this case so far have awarded me the right to be named as one of the composers, and to enjoy at last the attendant recognition and reputation which I have been denied for so long. As I have always said, this shared credit and acknowledgement are far more important to me than money.
However, as a matter of justice, I still do not understand why two of the Court of Appeal judges decided my perfectly valid and successful claim to authorship should mean absolutely nothing in financial terms for the future, or why Gary and various other people should continue, for my lifetime and for 70 years afterwards, to reap all the financial rewards of my creativity, when they have already benefited freely from the millions of pounds I have earned for them in the past.
My claim has always been a 'one-off', because the facts in this case are utterly unique; but my lawyers tell me that the Court of Appeal's decision amounts to something of a new departure in law, and has far reaching and wide ranging implications which raise a number of serious legal questions.
For these reasons I shall pursue an appeal to the House of Lords.
The question most frequently asked about this lawsuit by reasonable observers is: 'Why on earth didn't they settle it between themselves, instead of going to court?'
I can only say I share this sense of bewilderment.
I had always hoped to reach a fair settlement of this dispute by amicable discussion, and I was even willing to accept a reasonable compromise in order to avoid going to court. The single non-negotiable factor was my recognition as a joint author of A Whiter Shade Of Pale.
Unfortunately, this fact was always vehemently denied, and when the case came to trial most of the court's time (and therefore most of the expense of the case) was spent on arguing this one point.
Before the original trial I willingly agreed to try mediation, in the hope of avoiding the need to go to court. The mediation process is subject to strict terms of confidentiality, so I am unable to comment on what happened there. It appears, however, that Gary's representatives have no more respect for the law on this point than they have for the laws of copyright or defamation (although I suppose it could be argued that statements with no truth in them do not breach this confidentiality!).
I understand Gary is now publicly alleging that I was unwilling to settle our dispute by discussion, and that I even failed to turn up when he arranged a meeting with me for this purpose before we went to Court this time, for the Appeal hearing. This is actually the opposite of what happened.
After the original trial I attempted to open negotiations through Onward Music, the publisher and Second Defendant, to discuss the possibility of a new agreement which would be fair to all parties and settle matters once and for all. A meeting was agreed and arranged, but it was Gary and Keith who backed out and called it off, claiming that the timing was wrong. I can only assume they had decided they would prefer to take their chances in the Appeal.
My impression was that Onward would have welcomed an opportunity to sort the matter out on a sensible commercial basis. I have always been concerned about the risk of possible conflict between Onward on the one hand and Gary on the other, but they chose to be represented throughout by the same law firm. At an early stage my lawyers formally pointed out that this situation might involve a conflict of interest between the two Defendants, but their solicitors never seemed to think it was a problem.
To sum up, all attempts at settling this matter without going to court have been thwarted by Gary's intransigent approach over the question of joint authorship, as illustrated in the letter quoted above, and by the unremitting belligerence, arrogance and aggressiveness which has characterised the Defendants' whole conduct of this case.
I have to say Gary's recent claims that he always wanted an amicable solution do not accord with his actions in the past; but perhaps time will show whether he is genuine about wanting to achieve this for the future.
Matthew Fisher - 15th April 2008
I was recently asked to submit a doodle by the organisers of National Doodle Day
so I sent them this sketch. All the doodles were auctioned on Ebay and I was pleased
when my one raised £57.00 for Epilepsy Action.
If you like this picture, check out this
page on the National Doodle Day website,
because you can get T-shirts, fridge-magnets and all kinds of things featuring
the doodle of your choice, and it's all for a good cause.
I decided to make two old versions of my page available again.
Both of these pages contain links to free downloads.