Beyond the Pale: Procul Harum Claim 38 years Too Late

The Court of Appeal has overturned Mr Justice Blackburne's 2006 decision to award 40% of royalties from the date he brought his claim to the organist Matthew Fisher for his contribution to A Whiter Shade of Pale. See the title link.

Matthew Fisher has commented on his own website that:

"This is a most peculiar judgment that will please nobody. It raises more questions than it answers. Having demolished every single argument advanced by Gary Brooker's legal team, Lord Justice Mummery suddenly produced an argument of his own, like a magician producing a rabbit out of a hat.

This argument is so obscure and oblique as to defy comprehension. It had never been anticipated, either by the two legal teams concerned, or by any of the many legal commentators who have written about the original trial. It will be interesting to hear the reactions of other specialist copyright lawfirms such as Clintons or Davenport Lyons.

Nevertheless, from my point of view this case was never about money - it was about getting my name on the song to which I contributed the most commercial and essential feature [i.e. the organ tune]".

He comments elsewhere that he went down 2-1 and he is right. However, the third Court of Appeal judge (Sir Paul Kennedy) did not give a reasoned decision and simply confirmed his agreement with Lord Justice Mummery.

Mr Justice David Edwards delivered a dissenting opinion. A clear invitation, if it is not about money, or, even if it is, to roll the dice in the House of Lords. Two reasoned opinions: one favourable, one unfavourable and a delphic coin toss.

However, I am surprised that neither legal team (as Mr Fisher says) anticipated this:

"In summary, my reason for allowing the appeal against declarations (2) and (3) is that Matthew Fisher's conduct makes it unjust that he should succeed in his claims to a joint interest in the Work or to have revoked the implied licence for the defendants to exploit it. The judge should have taken a broader approach to the application of the delay defences. In particular:

(1) Matthew Fisher is guilty of excessive and inexcusable delay in asserting his claim to title to a joint interest in the Work. He silently stood by and acquiesced in the defendants' commercial exploitation of the Work for 38 years. His acquiescence led the defendants to act for a very long period on the basis that the entire copyright in the Work was theirs. They controlled the commercial exploitation of the Work without any reference or reward to him.

(2) His acquiescence has made it unconscionable and inequitable for him to seek to exercise control over the commercial exploitation of the copyright in the Work. The combination of a declaration of a joint interest and a declaration of revocation of the implied consent would enable him to control future commercial exploitation by means of a final injunction against the defendants. For this reason declarations (2) and (3) should be set aside.

(3) If the implied licence has become irrevocable by acquiescence Matthew Fisher cannot claim damages for infringement of copyright, or any share of the monies collected by the copyright collecting societies, or obtain any contractual right for payment of royalties in the future as the price for granting an express licence for the exploitation of the copyright in the Work. For these reasons the order for an inquiry as to damages since 31 May 2005 should be set aside."

I am not a specialist in copyright law but this seems like pure common sense to me.

You simply waited too long Matthew.