Brooker& Anor v Fisher

Long delay alone does not bar a declaration of co-authorship or prevent recognition of copyright. The court must distinguish recognition of authorship from relief giving control over future exploitation. Acquiescence and laches may prevent declarations sought as a springboard to an injunction where the claimant knowingly permits exploitation for many years and restoration of the original position is impracticable. Detrimental reliance is not required for those defences. Proprietary estoppel remains distinct and requires substantial detriment. An original musical arrangement may have copyright separate from the underlying composition, and licences necessary to make and exploit it may be implied. The co-authorship declaration stood, but the majority refused joint-ownership and licence-revocation declarations and set aside the damages inquiry.

Matthew Fisher, a former member of Procol Harum, claimed that he was a joint author and copyright owner of the musical arrangement performed on the 1967 recording of A Whiter Shade of Pale. The High Court, Blackburne J, granted declarations of co-authorship, 40 per cent joint ownership and revocation of an implied licence, and ordered an inquiry as to damages for later exploitation.

The defendants appealed. The issues included whether the delay made a fair trial impossible; whether acquiescence, laches or proprietary estoppel barred relief; whether the prior assignment of the underlying song affected copyright in the arrangement; and whether the recording contract governed ownership of the musical work.

1. Disposition. By a majority, the appeal was dismissed as to the declaration of co-authorship but allowed as to the declarations of joint ownership and revocation of the implied licence. The order for an inquiry as to damages was set aside. Mummery LJ gave the leading judgment and Sir Paul Kennedy agreed. David Richards J dissented on acquiescence and laches and would have dismissed the appeal against the further declarations and damages inquiry.
2. The defendants failed to show that the passage of time made a fair trial impossible. An appellate court should be very reluctant to interfere with an experienced trial judge’s assessment of the evidence and overall fairness after trial, absent an error of principle or a plainly wrong result. In an extreme case, delay may justify dismissal as an abuse of process.
3. The musical arrangement was a separate copyright work from the underlying song. The prior assignment of the song did not itself determine ownership of the arrangement. There was no express assignment by Fisher, and it was unnecessary to decide whether an implied assignment existed because the defendants were protected by an implied licence.
4. Licences by the underlying copyright owner and by the contributors to the arrangement were implied as necessary to avoid infringement and split rights. Under section 16(2) of the Copyright, Designs and Patents Act 1988, exploitation under licence was not infringement. On the majority view, Fisher’s knowing acquiescence in the defendants’ exploitation for 38 years made the licence irrevocable.
5. Delay alone was insufficient. Whether acquiescence and laches made enforcement unconscionable depended on the length and explanation of the delay, the parties’ knowledge, the consequences, the difficulty of restoring the former position and all other relevant circumstances. Detrimental reliance was required for proprietary estoppel, but not for acquiescence or laches. The recording contract concerned records of performances and did not govern ownership of the underlying musical copyright.
6. A declaration correcting future authorship attribution served a useful purpose and was not unjust. The other declarations would have enabled Fisher to control future commercial exploitation through an injunction or its threat. Acquiescence and laches therefore disentitled him to those declarations.

1. Court of Appeal (Civil Division)—In [2008] EWCA Civ 287, the appeal was allowed in part by majority. The co-authorship declaration was upheld; the joint-ownership and licence-revocation declarations and the damages inquiry were set aside.
2. High Court of Justice, Chancery Division—Blackburne J granted declarations of co-authorship, joint ownership and licence revocation, and ordered an inquiry as to damages following a six-day trial.