DES Working Paper No 1: A Paler Shade of Litigation: Still more confusion in Musical Property Rights.

Abstract

This paper gives an economic analysis of the judicial decisions in the disputes over authorship of Procol Harum's 'A Whiter Shade of Pale'. The first legal contest took place in 2006, 39 years after the song was written and was found in favour of the plaintiff (Fisher), in the first case he has brought against Brooker-Reid, in terms of his right to authorship. He was deemed to merit 40% of the musical composition rights but only from the date of his application onwards. However the case went to appeal with the result that in April 2008, it was found that although Fisher was still entitled to the authorship status he had been granted that he was not now entitled to any share whatsoever of the composing royalties. This case is partly unusual in that the judge, in the initial case, had formal musical training and saw fit to interpolate this human capital into the proceedings. The defendants made a number of remarks about the nature of the precedent set and its implications which can be usefully discussed in terms of economic models of production. In the appeal hearing one of the reasons given for the decision reached was the argument that the previous cases set an unfortunate precedent detrimental to composers of pop/rock music. The 'rock and pop' music production mode is discussed here with reference to this and other pertinent cases.