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Written in 1967, A Whiter Shade Of Pale is widely acknowledged as
one of the greatest pop songs ever written. It has been
covered more than 700 times, Rolling Stone magazine listed it as the
57th greatest song ever written and it was voted number 19 in
Channel 4’s “The 100 Greatest Singles”.
The credit for writing the music was previously given to Gary
Brooker, a founder member of Procol Harum. However in 2005
Matthew Fisher, the organist in the band until 1969, issued a claim
in the High Court against Brooker and others claiming that he was
joint author of the work by virtue of the distinctive organ solo he
wrote in the opening bars of the song. Fisher acknowledged
that the Hammond organ line was inspired by the J.S. Bach’s
“Sleepers Awake” and “Air on a G String”, but claimed it as
ultimately his own composition.
He also claimed that he had altered the descending bass line
written by Brooker to fit with his composition of the organ
part. The Defendants argued that while Fisher had created the
organ solo it had been dictated by the baseline which Brooker had
written. The Defendants argued that the creation of the organ
solo was the result of rehearsals of the band and simply expanded on
the basic composition written by Brooker, and accordingly the
contribution made by Fisher was not enough to confer a copyright
interest. They also tried to argue that the claim should be
barred on various legal bases, including estoppel, acquiescence and
laches, given that the Fisher had waited almost 40 years to bring
his claim.
The Judge, Blackburne J, disagreed with the Defendants and
ordered that Fisher be acknowledged as a joint author of the musical
work, and that he should receive 40% of the royalties derived from
the exploitation of the musical work from 2005 (when he commenced
his action) onwards. The Judge said that “the organ solo is a
distinctive and significant contribution to the overall composition
and, quite obviously, the product of skill and labour on the part of
the person who created it”. Blackburne J found that it was
clear that the organ solo was sufficiently different to that
originally composed by Brooker in order to qualify in law as an
original contribution to the work and had made a significant
contribution to the work. He held, however, that it was not as
large a contribution as Brooker had made, hence the allocation to
him of a 40% share.
Permission to appeal has been granted.
The case does not create a new precedent and does not expand the
law in this area. Cases of this sort are necessarily decided
on the facts and the strength of the evidence produced. In this
case, the Claimant’s evidence was found to be sufficiently strong to
establish that the contribution he made to the song was significant
enough to be afforded copyright protection and recognition.
High-profile cases such as these usually result in a flurry of
similar claims being brought or threatened. However the test
remains the same: the contribution must be original and significant
to the overall composition, and sufficient skill, judgement and
effort must have been expended in its creation.
While in this case the Claimant was actually a member of the
band, the case serves as a warning to artists and songwriters (and
to their publishers) that, where they engage session musicians (or a
contribution is made by a producer, arranger or engineer at a
recording session) and the other party makes a significant
contribution to the development of the song during the recording
process, they could be exposing themselves to these types of
claims. As is always the case, the appropriate releases should
be signed and, if artists (or their publishers) are particularly
concerned, they should obtain a specific agreement or
acknowledgement from the other party to the effect that he or she
did not contribute to the composition. Any contemporaneous
documentation or other evidence could prove invaluable, especially
if the Claimant waits decades to bring a claim. Emma
Stoker
289
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