A Blacker Shade of White

A chancery court in England has issued a ruling that, if left to stand, may have a profound effect on copyright holders throughout popular music.

On December 20, Justice William Blackburne decided in favor of keyboardist Matthew Fisher, who in June 2005 sued two of his former Procol Harum bandmates and their music publisher, Onward Music Ltd., for a share of the songwriting credits and royalties to the hit song "A Whiter Shade of Pale." In today's ruling, Justice Blackburne declared that bandleader/composer Gary Brooker and lyricist Keith Reid must share 40% of the "composing royalties" with Fisher, an organist whom the band hired in March 1967 through the classified pages of Melody Maker, the then-weekly music paper. In choosing that percentage, Blackburne acknowledged that Fisher's contribution to the composition "was not as substantial as that of Mr. Brooker."

The court denied Fisher's claim to back royalties, and Justice Blackburne's written decision states that Fisher will not be entitled to royalties from cover versions that fail to make use of his specific contributions to "A Whiter Shade of Pale." Nonetheless, given the anthemic song's frequent use in film soundtracks and mobile-phone ringtones (see Wes Phillips' recent article on RIAA hijinks), future royalties may be substantial.

The trial, which began November 13, seemed to hinge on the distinction between composing and arranging: Brooker and his publisher testified that a demo recording of "A Whiter Shade of Pale" had already been made by the time Matthew Fisher accepted the offer to join Procol Harum. For his part, the plaintiff argued that his eight-measure, Bach-inspired obbligato, used as an introduction and between the verses, was key to the song's popularity.

Later comments by Fisher revealed a more extensive claim. Responding to testimony that Brooker composed the song after hearing Bach's "Air on the G String" in an English cigar commercial, the plaintiff offered a withering rebuke: "I'd been listening to Bach for eight years. I was an expert when it came to Bach. [Gary Brooker] would have been playing something that he thought sounded like Bach, but I honestly don't remember him playing anything that impressed me in the least."

During his initial two-year stint in the group, Fisher was credited as the composer or co-composer of eight Procol Harum numbers. One of them, an instrumental called "Repent Walpurgis," contains a 12-measure quotation from Bach's Prelude No.1 in C Major—an idea that Fisher credited to Brooker in subsequent interviews.

The defendants released a joint statement decrying the verdict: "The repercussions of this decision are so far-reaching. It will mean that, unless all musicians' parts are written for them, no publisher or songwriter will be able to risk making a recording for fear of a possible claim of songwriting credit. It is effectively open season on the songwriter." Gary Brooker embellished the point: "If Matthew Fisher's name ends up on my song, then mine can come off. I have to respect and acknowledge the people I write songs with."

For the time being, the 10-million-seller song remains credited to Brooker and Reid alone: Justice Blackburne has granted a stay, pending appeal.

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