Procol Harum Copyright decision turns Artists Pale?

Copyright in music remains one of the most topical legal issues of our time in the wake of the Digital Britain Report, the music industry losing money at a terrifying pace to online  filesharers and moves to extend the duration of musical copyright beyond 50 years to allow artists such as Cliff Richard to continue making royalties from their earliest work, and it is making headlines again following yesterday’s landmark judgment on the ownership of copyright in one of the most played pop songs of all time – Procol Harum’s “A Whiter Shade Of Pale”.

The song was first released in 1967 to immediate critical and commercial success, has been covered over 800 times and is perhaps best known for its surreal lyrics and signature Hammond Organ melody, which was the major issue in the soon-to-be infamous case of Fisher v Brooker [2009].

The case dealt with a claim brought against Gary Brooker, (Procol Harum’s lead singer and lyricist) by Matthew Fisher, the band’s original keyboard player, who claims that he wrote and was responsible for the main melody of “Pale”, and as such is entitled to a share of its copyright.  This case comes on the last day before the House Of Lords becomes the Supreme Court, and marks the first time that the Lords have been asked to been asked to determine the copyright in a pop song. However, it also makes history in a number of other ways.

Fisher’s case began in 2005, with the High Court originally ruling that he had made a “significant contribution” to “Pale”, and was found to be in fact a 40% joint composer of the song along with Brooker. This mean that he was entitled to a considerable share of the huge amount of royalties generated since its release over 40 years ago.

However, the Court of Appeal overturned this ruling last year on the grounds that it had taken Fisher nearly 40 years to bring his claim to Court, having not taking any action against Brooker in the meantime, who claimed that Fisher was “happy” for his organ solo to be used in the final song.  

Fisher claimed that he had always been told by every solicitor he had consulted in the meantime that he stood no chance of successfully claiming for back royalties on the song. That is, of course, until 2002, when a case involving the Bluebells Hit “Young At Heart” changed musical copyright law by awarding Bobby Valentino (AKA Robert Beckingham), who composed and played its iconic Violin melody, a share in its copyright and an entitlement to a share of the royalties generated by the hugely successful song on the basis that he had made a similar “significant contribution”.

The Lords overturned the Court Of Appeal’s ruling for two reasons – the other members of Procol Harum could not show that they had been prejudiced by Fisher’s failure to bring his case before now (which was a key argument for Brooker) and that even if they had, it would be far outweighed by the financial benefit which they had gained from the royalties generated by the song since its release.

Brooker’s lawyers argued that, if the Lords sided with Fisher, the floodgates would be opened on a huge number of similar claims from musicians who did not believe that they received the songwriting credit which they deserved and that the music industry as a whole would suffer. The Court did not agree.

The case can be looked at in two ways. On the one hand it represents a huge victory for session musicians or former members of bands who claim that they should have received credit as a songwriter on a track which goes on to be a massive hit, such as “Pale”, the most played song in public places of the last 75 years according to recent research by PPL, and on the other it could represent the beginning of a raft of similar cases.

The normal rule is that whoever composes a song becomes the owner of the copyright in it. However, many songs tend to be written in jam sessions with input from more than one musician, and sometimes from session musicians who aren’t members of the band. Fisher eventually left Procul Harum, who have always claimed that he was happy for his distinctive organ riff to be used on the song for no further financial benefit. Fisher sued for a declaration of ownership rather than an injunction or damages, which means that the Court wan not asked to award a huge sum of damages but to ensure that Fisher received royalties in the future.

What’s interesting is that Fisher’s melody was itself inspired by Bach’s Air on a G String, but is still arguably the most recognisable element of the song. Over the past few years, the Courts have dealt with a number of cases where session musicians who are only expected to come into a studio, contribute to a recording and leave after being paid their session fee have successfully claimed a share in the final song’s copyright and have been awarded substantial damages to cover the royalties they would have made had they been credited as a composer when it was released. Ask the remaining members of Pink Floyd about the case of Claire Torry, who is now credited as a co-author of “The Great Gig In The Sky”, an instrumental featuring her free-form vocals from “Dark Side Of The Moon”, one of the most successful Albums of all time, after originally only being paid £30 in the 1970s and claimed a 50% stake in the song’s copyright. That case was settled for an undisclosed sum.

Artists will probably now be looking over their shoulder, especially if the most distinctive parts of their most popular songs were created by session musicians who now feel as if they never got the recognition they deserved. Musical copyright is big business as songs can be sold over a much greater number of formats than at any time over the past 50 years, such as MP3s – Coldplay are currently involved in a case brought by Joe Satriani over the copyright in “Viva La Vida”, and the Verve famously lost pretty much all of the money they ever made on “Bittersweet Symphony” to the Rolling Stones, who came up with the melody line around which the song was based.

What’s really significant about this case is the amount of time which has gone by between the song’s release and this Judgment. In the Bluebells case, only 15 or so years had intervened but Fisher had to wait twice as long, with the Court finding that there were not time limits in English Law in copyright claims. This may mean that some of the 60s and 70s’ most popular songs may be subject to scrutiny, especially as Fisher will now be entitled to 40% of the royalties for “Pale” going forward despite the fact that his melody line made up only a small part of the eventual song.

The lesson for any artist here has to be to sign a contract with any session musicians you use to ensure that you have set out any arrangement on copyright and royalties in the product. The vast majority of modern artists will be well aware of the risks, but we could see a great number of similar cases. An ounce of protection could be worth nearly 40 years of cure.

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