Fisher v Brooker & Ors

The House of Lords allowed the appeal and restored the trial judge’s declarations that the claimant, Matthew Fisher, was a co-author of the musical work "A Whiter Shade of Pale" and was entitled to a 40% share of the musical copyright. The court held that the mere passage of time does not of itself extinguish or defeat a statutory property right in copyright and that equitable defences such as laches, estoppel or acquiescence will only bar equitable remedies, not the recognition of a legal property right, unless wholly exceptional circumstances exist. The court also rejected the respondents’ arguments that there had been an implied assignment of any interest by Mr Fisher to the publisher Essex or that the recording contract effectually transferred his copyright, although it accepted that the recording contract may have operated as a licence in respect of the first recording. Key statutory provisions considered included section 12 and section 157(1) of the Copyright, Designs and Patents Act 1988 and section 39 of the Limitation Act 1980.

The claimant (Matthew Fisher) sought declarations that he was a co-author of the musical composition of the 1967 song "A Whiter Shade of Pale", that he owned a 40% share of the musical copyright, and that the respondents' licence to exploit the work was revoked when he notified his claim in 2005. The High Court (Blackburne J) found in Mr Fisher’s favour, giving the three declarations, but the Court of Appeal (Mummery LJ and Sir Paul Kennedy; David Richards J dissenting) set aside two of those declarations on equitable grounds. The House of Lords heard the appeal from the Court of Appeal.

The case raised (i) whether a fair trial was possible after very long delay (no appeal on that point); (ii) whether Mr Fisher had made an original contribution such that he was a joint author (judge found he had and the Court of Appeal did not disturb that); (iii) whether there was an implied assignment of any copyright interest to Essex or whether the recording contract deprived Mr Fisher of his copyright (both advanced as cross-appeals/defences); and (iv) whether equitable doctrines of laches, estoppel or acquiescence should prevent recognition or enforcement of his rights.

The House of Lords concluded that (i) the trial judge’s factual findings that Mr Fisher made an original contribution and that a 40% share was appropriate were unassailable on appeal; (ii) the implied assignment argument failed because of lack of evidential foundation and because the recording contract post-dated the recording and release; (iii) the recording contract was properly construed as primarily relating to exploitation of the sound recording and, at most, as operating by licence in respect of the first recording rather than as an outright assignment of the musical copyright; and (iv) equitable defences could not permissibly be used to deprive Mr Fisher of his statutory property right in the absence of exceptional unconscionable conduct or prejudice demonstrably outweighing the benefit the respondents had derived during the period of delay. The court therefore restored the two declarations set aside by the Court of Appeal and dismissed the respondents’ cross-appeal.

Appeal allowed. The House of Lords restored the trial judge's declarations that Mr Fisher was a joint author with a 40% share and that the respondents' licence was revoked on notification, holding that the equitable defences relied on by the respondents did not justify denying recognition of Mr Fisher’s statutory property right; implied assignment and recording contract arguments failed or were insufficiently established.

First instance: Chancery Division, [2006] EWHC 3239 (Ch) (Blackburne J) in which three declarations were granted. Court of Appeal: [2008] EWCA Civ 287 (reported [2008] Bus LR 1123) where two of the three declarations were set aside (majority) and one judge dissented. Appeal to the House of Lords: [2009] UKHL 41 (allowed).