A Whiter Shade of Pale

This song is considered one of the all time greatest hits. It is a Procol Harum song that was recorded back in 1967. This song had been exploited over the years on the basis that Gary Brooker wrote the music and that the publising and record company to which he sold the rights, and its successors possessed and controlled the copyright. By an Order of the High Court Blackburne J. made a declaration to the effect that (1) Matthew Fisher is the co-author of the music as recorded by Procol Harum; (2) he is a joint owner of the musical copyright in the work, assessed at 40%; (3) the licence of the defendants to exploit the work was revoked on May 31, 2005 when Matthew Fisher started his case against Gary Brooker and Onward Music Limited.

Permission to appeal was granted on the basis of (1) the unusual length of time that had elapsed in making the claim (2) the insistence of the defeated defendants of the widespread and dire effect that the decision would have on the way that the music industry operated in the past.

In 1967 Gary Brooker composed the music of "A Whiter Shade of Pale" around lyrics written by Keith Reid. The dispute is about the authorship of the arrangement of the song. In the course of rehearsals improvised changes were made to the song: the words were shortened from 4 verses to 2 and the instrumental sections were all played by Matthew Fisher on the Hammond Organ. The single issued on May 12th 1967 was a recording of a performance by the band. In August 1969 Matthew Fisher left Procol Harum. The band's partnership was dissolved with the understanding that Fisher would not be liable for the band's debts of $60, 000. He signed a release but not with respect to a share of copyright or publishing royalties for his compositions.

Blackburn J. found in the High Court that "Mr. Fisher's instrumental introduction (i.e. the organ solo as heard in the first eight bars of the Work and as repeated) is sufficiently different from what Mr. Brooker composed on the piano to qualify in law, and by a wide margin, as an original contribution to the Work".

On appeal it was found that the judge was entitled to find that Matthew Fisher made a creative contribution to the Work and he was right to grant a declaration as to co-authorship. This decision therefore stood. He however dismissed the appeal on the joint ownership of the musical copyright and the finding that the implied licence to exploint the work had been revoked when Matthew Fisher filed his action. Lord Justice Mummery found that Matthew Fisher was guilty of "excessive and inexcusable delay" and that his acquiesence made it "unconscionable and inequitable" for him to seek to control commercial exploitation of the work after 38 years. No damages were awarded and no right to exploit the work in the future was granted.