Should Have Thought of That in 1967 (Whiter Shade of Pale Lawsuit)

New York Times
April 4, 2008, 11:08 am
Should Have Thought of That in 1967

By Patrick J. Lyons

“What took you so long?” has turned out to be an expensive question for Matthew Fisher.

You probably know his sound better than his name: Back in the day, as the organ player for the British rock band Procol Harum, he contributed that famous solo to the band’s 1967 hit “A Whiter Shade of Pale.”

He left the band a few years later and pursued a career as a computer programmer, while the band’s singer, Gary Brooker, stuck with music, receding from stardom but still plugging away with modestly successful records and concert tours for decades. Not to mention cashing royalty checks from the enduring success of “A Whiter Shade of Pale”: music by Gary Brooker, lyrics by Keith Reid, it says on the band’s own recording and on the 600-odd cover versions that other artists have made over the years.

All that time, not a peep of public complaint from Matthew Fisher, not even when Procol Harum reunited briefly in the early 1990s to cut an album and play some concert dates — until 2005, that is, when Mr. Fisher decided to sue Mr. Brooker for millions in back royalties, claiming that his organ solo was a key to the song’s success and entitled him to credit as a co-writer.

Despite Mr. Brooker’s counter-arguments that the song was written before Mr. Fisher joined the band and that anyway the organ line was cribbed from Bach’s “Air on a G String,” Mr. Fisher won his point at trial in 2006, when a court ruled that he was indeed a co-composer of the hit song’s music.

But the money? Too late now, a British appeals court said today:

Judge John Mummery ruled that although Fisher had indeed co-created the song, the fact that it took him 38 years to bring the case to court meant he should not receive any financial benefit from it.

“Matthew Fisher is guilty of excessive and inexcusable delay in his claim to assert joint title to a joint interest in the work,” the judge said.

“He silently stood by and acquiesced in the defendant’s commercial exploitation of the work for 38 years.”

The decision restores full control of the copyright to Mr. Brooker, reversing the 2006 trial judge’s order that the men split ownership and future royalties (though not past ones) to the song.

A decades-long time lag also figured in another famous song-copyright battle, the fight over the authorship of a hit pop song of the 1940s, the Andrews Sisters number “Rum and Coca-Cola” — but in that case, only the borrowed melody was old. The plaintiff, who owned the copyright to a Calypso tune written in Trinidad around the turn of the 20th century, pressed his complaint soon after the Andrews Sisters version topped the charts. In the other case that everybody remembers, it was the litigation itself that dragged on for decades; the resemblance between George Harrison’s 1969 hit “My Sweet Lord” and the 1962 Chiffons tune “He’s So Fine” was the subject of legal back-and-forth almost immediately, but aspects of the case were still being hashed out in the courts in the 1990s.

Mr. Fisher can still appeal the “Whiter Shade of Pale” decision to the House of Lords, which serves as Britain’s supreme court. The British aristocracy might not prove the most receptive of audiences for his claim, though, considering the cavalcade of pop stars who have been knighted over the years, including Sir Paul, Sir Elton, Sir Mick and, oh yes, Gary Brooker, M.B.E.

Even without a further appeal, though, the case isn’t over yet: Still to be settled is who must pay whose legal bills, which are reported to have mounted well into the millions of pounds on each side.