38 years is almost too long

The Court of Appeal has partly upheld an appeal in the Whiter Shade of Pale case ... 

The trial judge found that Mr Fisher, who played the Hammond organ breaks on the version of the song that you get to hear periodically (well, up to now) on the radio was an author, a joint owner of the copyright and entitled to participate in future revenue streams or withhold his consent from such enterprises.

As Mummery LJ carefully pointed out, Mr Brooker and a Mr Field were the authors of the original work; Mr Fisher, by virtue of his contribution with the Hammond organ, was an author of the adaptation of that work which has been recorded so memorably all those years ago.

The Court of Appeal upheld the declaration that Mr Fisher was an author, but (2:1) overturned the declarations that he was a joint owner of the copyright and had revoked his implied licence to the other copyright owners permitting them to control how the work was exploited. 

The decision is a very careful consideration of the principles for the various defences acquiescence, delay, waiver, laches and proprietary estoppel.

On the facts, Mummery LJ (Sir Paul Kennedy agreeing; Richards J dissenting) agreed with the trial judge that there was insufficient detriment to give rise to a proprietary estoppel; but the circumstances were sufficient for acquiescance and laches to have some operation. The working of this was quite complicated.  

First, the Court of Appeal unanimously agreed that the trial judge was right to give the declaration that Mr Fisher was an author of the adaptation.  On the other hand, Mummery LJ (with Sir Paul Kennedy agreeing) ruled that the declarations that Mr Fisher was a joint owner of the copyright and that he had revoked the implied licence to exploit the copyright (until he finally got around to revoking it) should not have been made on the basis of acquiescance and delay.

Mummery LJ thought that the declaration of authorship would have some practical value for Mr Fisher, particularly for purposes of his attribution right.

79 There is, in my view, a substantial distinction to be drawn between the right to attribution of authorship and the right to title and to the control of exploitation in the future. It does not appear that the practical significance of the very different effects of the three declarations was explained to the judge or even to this court in the skeleton arguments or the oral submissions. I confess that the full implications of the different declarations did not become clear to me until writing this judgment. The case was presented primarily on the basis that Matthew Fisher was not entitled to any relief, either because a fair trial of his claims was impossible or because he was prevented by his dilatory conduct and acquiescence from claiming any relief. If that was wrong, then it seems to have been assumed that all three declarations were appropriate.

On the other hand:

86  The judge ought also, in my judgment, to have differentiated between nature and effect of the declaration of co-authorship and the declaration of joint interest and of termination of the implied licence. The latter would allow the copyright interest to be enforced by injunction in the future in a way in which it had never been enforced in the past. The copyright position is that the defendants and their predecessors have invested in the exploitation of the Work for nearly 4 decades without challenge. They dealt with it as if they were the owners, which they were reputed to be, and which, save for the interest claimed by Matthew Fisher in the arrangement of the underlying music, they in fact still are. The fact that Gary Brooker may have benefited by not having to split the writer's share with Matthew Fisher is not, in my view, a satisfactory answer to the asserted right of Matthew Fisher to use a copyright interest to terminate the defendants' continued exploitation as from 31 May 2005 and to obtain an injunction to restrain future exploitation without his consent.


88 The revocation of the implied licence would require the defendants to cease exploitation in the future unless they can obtain the consent of Matthew Fisher. If permitted to revoke the licence of the defendants and decide whether or not to licence future use, he could dictate his terms and put the defendants in a weaker bargaining position than they would have been in, had he made his claim in, say, 1967 or 1969. After the passage of nearly 40 years and the activities in the intervening years it is impossible to return the defendants to the bargaining position they would have been in vis-à-vis Matthew Fisher had he protested at the time when the defendants were concluding agreements for the acquisition of rights and their exploitation of the Work.

The interesting thing about this is that, given the declaration of authorship, Mr Fisher will be entitled not just to a right of attribution but also to a right of integrity against derogatory treatment.  I am going to have to leave it to others to unravel the ramifications of the UK's implementation of these rights.

A nice little kicker for the record companies that we all know and love:

105 In future record and publishing companies might be well advised to obtain assignments in writing from performers to cover arrangements of music that may have improvised and so created new copyright works during rehearsal or recording sessions that are not covered by earlier formal agreements. It is in everybody's interest that there is certainty about the ownership of the rights necessary for the exploitation of the copyright in the interests of all concerned.

That, of course, is nothing more than they should be doing; but will mean that they will need to add (if they haven't already) an extra sub-clause.

Brooker v Fisher [2008] EWCA Civ 287.

Lid dip IPKat; Patry too.  IPwar's before.

Posted: Saturday - 05 April, 2008 at 06:55 PM         |

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