Matthew Fisher, the former organist in the group Procol Harum, has won a judgment against two of his former bandmates, awarding him a 40% interest in the composition A Whiter Shade of Pale. Originally penned in 1967, the tune had been credited to Gary Brooker and Keith Reid. It has a perennial presence on classic rock radio, and has been listed by Rolling Stone magazine as the 57th greatest song of all time.

The court found that Fisher's organ solo "is a distinctive and significant contribution to the overall composition and quite obviously the product of skill and labor on the part of the person who created it."

Fisher successfully argued that his distinctive keyboard part was an essential part of the composition, raising his participation to the level of composer, rather than an arranger or performer.

Brooker and Reid claim that this decision makes it "open season" on composers and that now anyone who played on a recording could make a claim for joint authorship.

Commentary: Ironically, Fisher's haunting keyboard part was not wholly original to start, lifting several bars from Sleepers, Awake, one of the movements in Bach's Suite No. 3 in D Major. Nonetheless, in creating a derivative work in a public domain composition, and bringing it to Pale, Fisher did create an otherwise copywritable piece.

That notwithstanding, this case should have little impact on composers and musicians who follow some fairly simple practices. Individuals who are composing music together should always have a co-administration agreement in place, in advance of any writing sessions. Musicians recording together should always have either work-for-hire agreements or an intra-band agreement in place before rehearsing or recording music. Finally, at the conclusion of rehearsals, and prior to recording, all musicians involved in other than a work-for-hire relationship should have a full and frank discussion about ownership and division of rights in each composition. It is almost always easier to give or get a 10 or 15% interest in a speculative dollar than in a real one.

With up front discussions of prospective rights resulting in an agreement prior to recording, no composer should have any concern about future claims of ownership. While Fisher is turning cartwheels cross the floor, Brooker and Reid think this decision goes beyond the pale. In reality it doesn't; this case does nothing more than highlight the hazards of inadequate preparation and alert all musicians and composers that they should talk to each other and a lawyer, before, not after, the fact.