Procol Harum

Beyond
the Pale

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London judges hear Whiter Shade appeal

Billboard.biz • 3 October 2007


The 1 million ($2.03 million) legal battle over songwriting royalties from Procol Harum's A Whiter Shade of Pale moved to London's Court of Appeal today.

The group's 62-year-old founder and frontman Gary Brooker claims that it was "unfair" for a High Court judge in 2006 to find organist Matthew Fisher was entitled to a 40% share of the royalties four decades after the song became a global hit in 1967.

Opening the appeal today, Brooker's counsel John Baldwin QC told judges Lord Justice John Mummery, Sir Paul Kennedy and Mr Justice David Richards that, after 40 years of inaction, it was impossible to have a fair trial. He added that crucial witnesses had died and vital evidence had been lost or destroyed over the years.

He said: "This delay of almost four decades is plainly very long. Indeed, so far as the appellants are aware, it is unprecedented in a case of this or any other comparable kind." Because of that delay, he argued, the case should have been dismissed.

However, last year a High Court judge disagreed and ruled that 61-year-old computer programmer Matthew Fisher was entitled to 40 per cent of the royalties for the music - said to be worth 10,000 ($20,300) to 20,000 ($40,730) a year. Because of the length of time between the original record's release and Fisher's claim, he was only to be entitled to royalties dated after May 31, 2005, when the claim was filed.

Fisher, a classically trained organist from London, had sued Brooker and his publishing company Onward Music Ltd for a share in the publishing from the music. But he has yet to receive any royalties because all payments were frozen pending the result of the appeal.

However, the case has already cost around 1 million ($2.03 million) in legal costs. Brooker's bill was around 500,000 ($1.01 million) for the trial alone, and he was also ordered to pay 90% of Fisher's 450,000 ($916,000) bill. The appeal is likely to add at least another 100,000 ($203,000) to the costs.

A Whiter Shade of Pale topped the U.K. Singles chart for five weeks in the summer of 1967 and is estimated to have sold more than 10 million copies worldwide. It has also been the subject of numerous cover versions.

The song has always been credited to Brooker and the group's lyricist Keith Reid. But Fisher's name must be added to the credits if the earlier ruling is upheld on appeal.

It has been widely speculated that the decision could have far-reaching repercussions in the music industry, encouraging any musician who had played on any recording in the last 40 years to raise a potential claim of joint authorship. Baldwin told the judges today: "It raises issues of principle which are of general importance to the industry and which merit particularly close consideration by the Court of Appeal."

The appeal is due to last two days. Judgment is expected to be given in writing at a later date.

Roger Pearson, London



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