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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Fisher v Brooker & Anor [2006] EWHC 3239 (Ch) (20 December 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/3239.html Cite as: [2006] EWHC 3239 (Ch), [2007] FSR 12, [2007] EMLR 9 |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Matthew Fisher |
Claimant |
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- and - |
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(1) Gary Brooker (2) Onward Music Ltd |
Defendants |
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Andrew Sutcliffe QC and Richard Edwards (instructed by Harbottle & Lewis LLP) for the Defendants
Hearing dates: 13th to 16th, 20th and 24th November 2006
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Crown Copyright ©
Mr Justice Blackburne :
Introduction
The Work
"It does not surprise me that many of the versions of the Song contain the Solo. This is because the first recorded version of the Song by Procol Harum in 1967 [i.e. of the Work] was a huge international hit and the arrangement of the Song, particularly the Solo in the opening measures [i.e. bars], is both distinctive and memorable and would, in my opinion, be identified by almost anyone familiar with the repertoire of contemporary popular music even after hearing just a few bars."
Elsewhere, he described the organ solo as significant and as hugely famous. I agree with all of that.
The issues
Is a fair trial possible?
How the Work came to be written
"In spite of the differences between the piano and the organ, what was played by Matthew [Fisher] in rehearsal, and on the recording, both in harmonic and melodic terms, was essentially the same as what I had composed at the piano."
Or, as Mr Reid put it in paragraph 11 of his witness statement:
"The difference between [the Song] as it was when Gary [Brooker] and I wrote it, and the version of [the Song] released on the record [i.e. the Work] was that the song was much longer when we first wrote it. Otherwise it's the same. It had the introduction and melodies that everyone recognises. Of course, in the recorded version they are adapted and played on the Hammond Organ. And obviously, the record has a full instrumentation i.e. drums, bass, lead guitar, Hammond Organ, vocals and piano."
And in paragraph 13:
"Even with a different organist, the record would have sounded essentially the same."
"The song, as Gary played it to me on the piano, was the same as the recorded version and included the now-famous introduction."
Michael Chittenden, a friend of Mr Brooker going back to before the time the Song was written, recalled how:
"In early 1967 Gary would often sing and hum to me … parts of a song which he was composing"
and how later, when Mr Brooker played a test record of the Work:
"I specifically recognised the organ introduction, on the test record, from what Gary had been humming earlier in the year."
"Q. In performance terms, but Mr Fisher's evidence is that he was concerned to make sure that that instrumental section was the best it could be and therefore he spent some time in putting it together and composing the thing that he would ultimately play. That makes sense, doesn't it?A. It makes sense that he would have thought about what he was going to play in going in to make a demo or on the recording. He had already thought about it by then. You know, it was being played like that on the demo.
Q. You had given him the job effectively of taking those solos and it was his responsibility to create the best solo he could, wasn't it?
A. Yes.
Q. What he ended up with and the solo --- let's take the introduction to the solo that he recorded, both on the demo and on the ultimate record as sold, was the result of that careful composition[al] process, wasn't it?
A. Might I just ask this. When somebody says composing, is there really a definition of what that means?
Q. Let's use a more neutral term. A careful creative process?
A. It was a careful creative process, yes.
MR JUSTICE BLACKBURNE: On whose part?
A. On Matthew's part."
And later:
"Q. You are not claiming responsibility for bars 3 to 6 which are the references to Wachet Auf that Matthew gave evidence about two days ago?
A. I know that I very often play an F in that third bar. Quite a long note.
Q. Perhaps we can cut through it. This is a melody which is complete in its own right, isn't it? It's a tune that stands by itself. It's not just a series of unconnected bars?
A. No.
MR JUSTICE BLACKBURNE: Do you agree with what he is putting to you?
A. I agree that it is a melody, that top line, yes.
MR PURVIS: And that melody is Mr Fisher's melody. It's his tune, he came up with it?
A. Again I would say that not all of those notes were thought of by Matthew. They were based upon what he had heard me play or even the way I had improvised it at times. He ended up with these notes which he repeated.
Q. Which in this form had not been played by you? It's Matthew's composition?
A. I will say this. In this form on these eight bars, is it?
Q. Yes.
A. I had never played that all the way through, those eight bars, that melody. "
as a joint author of the Work. It is no t a question that I have to decide since, at the end of the day, I am concerned with Mr Fisher's contribution to the Work as a whole, prominent in which, as I have described, is his composition of the very distinctive organ solo.
The arrangement point
Mr Oxendale observed:
"10.26 I myself have been a member of a number of bands since the early 70s and I have frequently been involved in scenarios such as that involving Mr Fisher where I and other band members have been presented with a song in a similar state to that of the Song described by both Mr Brooker and Mr Fisher (i.e. a finished work in terms of vocal melody, lyrics, structure and form) and asked to 'rehearse it up' for either recording or live performance or both.
10.27 In many instances, significant and original musical material in the form of solos (whether improvised or developed into extra musical parts), intros, outros (codas), musical 'hooks', countermelodies and secondary melodies has been input into the arrangement by myself and other band members but, to the best of my knowledge and belief, none of my fellow band members would ever have considered himself to be a joint author of the song."
"We [i.e. Mr Brooker and he] established a regular routine of him composing music for my lyrics. We worked in this fashion for some time; building up a collection of our songs with a view to getting them recorded by established recording artists. However, instead of doing this we decided to take matters into our own hands and perform the songs ourselves. We therefore formed the band Procol Harum."
Mr Brooker recalled that the Song was one of the pieces he played to Mr Fisher at their first meeting. It was, with other works, what Mr Fisher and the band members began to rehearse as soon as he joined Procol Harum. In short, the whole thrust of Mr Brooker's evidence, together with that of Mr Reid, was that - so far as the Song was concerned - what was to be performed and recorded and released as a single was a piece of music comprising vocals and band accompaniment, i.e. the Work (as it became) and not some earlier version consisting simply of Mr Brooker singing and playing the piano.
The recording contract
"1. The term of this agreement shall be for a period of one (1) year with four (4) successive options to renew this agreement as set out in Clause 4 hereof. During the term of this agreement the PROCOL HARUM agrees to record, and Company will accept commercially satisfactory 'master' records of [sic] the equivalent thereof on six (6) record sides at 45 R.P.M. or the equivalent thereof in playing time to be chosen by Company or more if Company shall so desire. The PROCOL HARUM agrees to record such selections at such times during the term hereof, as Company may designate and at Company's designated recording studio. … We reserve the right to specify the material recorded, the method and the manner of recording your accompaniment (instrumental and vocal) arrangements and copying in respect of recordings made hereunder and we shall pay the cost of such accompaniment and copying which are specifically undertaken in respect of such recordings.
2. The Manager agrees that during the term of this agreement the PROCOL HARUM will not perform for any other person, firm or corporation for the purpose of making phonograph records. The Manger agrees that the PROCOL HARUM will not perform any selections which they have performed hereunder for any other person, firm or corporation for the purpose of making phonograph records for a period of ten (10) years from the expiration of this agreement. …
3. In consideration of this agreement and without further payment than as herein provided, the Manager grants to Company, (a) the right to manufacture, advertise, sell, release, license or otherwise use or dispose of in any or all fields of use through the World or in any part thereof, records embodying the performances to be recorded hereunder, upon such terms and conditions as the Company may approve; (b) the right to use and publish and to permit others to use and publish the PROCOL HARUM's name and photographs; to write and publish and to permit other to write and publish articles concerning the PROCOL HARUM for advertising or trade purposes in connection with the sale and exploitation of Company products …; (c) the sole and exclusive rights in, titles to, and ownership of, including, but not limited to, the right to use and control all masters, matrices, records, or other reproductions of the performances embodied in which recordings by any method now or hereafter known, obtained from recordings made hereunder and performances embodied therein; (d) the sole and exclusive right, if Company so desires, to publicly perform the records or to permit the public performances thereof by means of radio broadcast or otherwise; (e) the right to incorporate in records to be made hereunder instrumentations, orchestrations and arrangements owned by the Manager at the time of recording them.
(a) This agreement between us shall be deemed the consent required by Section 1 of the Dramatic and Musical Performers Protection Act 1958 …"
Estoppel, acquiescence and laches
"…It wouldn't have occurred to us to have said - to have brought the publishing royalties into it. The debts had been incurred by the band, mostly by touring, tour support, so we felt those things are rightly to do - we were promoting the records. They were to do with record royalties so we wouldn't have considered that publishing royalties should be part of that. We would have thought the fair thing was record royalties. We settled the debts in return for the record royalties."
In other words, as the debts that were being released arose from the band's performances and touring activities it was only fair that, in return for their release from them, Mr Fisher (and Mr Knights) should give up their share of the profits derived from those performances.
Relief
(1) A declaration
(2) An injunction
(3) A restitutionary claim
The share