I wrote about this court case way back when it first came to attention, here.
The case involves copyright dispute over the Procol Harum song, “A Whiter Shade Of Pale”. Matthew Fisher played the organ part on the record. He was not credited as a writer on the song. Fisher felt that his organ part was part of the composition and that it entitled him to a writer’s share and royalties as such. The court found in his favor and awarded him a 40% share of the song including back royalties.
Gary Brooker who was credited as a writer originally, along with Kieth Reid, appealed the court’s decision.
Today from Breitbart/AP we have this.
The lead singer of the British band Procol Harum won an appeals court judgment Friday awarding him the full royalties to the iconic hit, “A Whiter Shade of Pale.”
Britain’s Court of Appeal ruling for rock star Gary Brooker overturned a lower court decision granting the group’s former organist 40 percent of the millions of dollars in royalties from the song.
The appeals court agreed Matthew Fisher, who played the haunting organ theme, was entitled to co-authorship but said he will receive no money from past or future royalties…
Lord Justice John Mummery said Fisher was “guilty of excessive and inexcusable delay in asserting his claim.”
Fisher, who quit the band in 1969 and is now a computer programmer in London, filed his claim to joint ownership nearly 40 years after the song was recorded and became one of the anthems of the 1967 “Summer of Love.” The record has sold 10 million copies, and Rolling Stone magazine has ranked the song 57th on a list of the 500 greatest of all time.
Brooker argued that it was his idea to use the theme based on Bach’s “Air on the G String” that Fisher played on the track, and that he was unable to make his case properly because Fisher did not tell him he was pursuing his legal claim.
In December, a judge awarded the classically trained Fisher a 40 percent share in the copyright of the song, saying his organ solo was “a distinctive and significant contribution to the overall composition.”
I think that the judge got it half right here. It seems that the judge here is still of the opinion that Fisher played a part in the composition of the song but, he just waited too long to file the claim.
I have some problems with that. Here is what I said in my original post.
What is important, legally, is whether the organ part is part of the composition. Ask this question; does the song exist without the organ part? The answer is yes. You could make a record a capella with only a single voice singing the words and melody and it would easily be identifiable as “Whiter Shade of Pale”.
The organ part is a arrangement idea. It’s a brilliant arrangement idea. When you hear that organ, you know the song instantly. The thing is, arranging a song can take just as much skill, or more, than writing. When you are a member of a band usually, the arrangement is a team effort. If the organ part is worth forty percent, what is the drum part worth? You can’t really decide that retroactively.
So, even though Fisher is not awarded any money, the judge thinks Fisher is “entitled to co-authorship”. See, I still think it’s a great organ part. But, I think the song exists without it. It’s an arrangement idea, pure and simple. If Fisher is a “co-author”, doesn’t this allow everybody who ever played a “part” on a record to use this case as a claim for authorship?
I don’t see how it doesn’t. Maybe Fisher will appeal and the House of Lords will get it right. If not, some bass player or tambourine guy is going to use this case as a potential payday.