SAWKINS v HYPERION RECORDS
The Court of Appeal has unanimously decided in
favour of the composer and editor Lionel Sawkins in his action for
copyright infringement against Hyperion Records Limited, upholding a
decision of the High Court last year.
Dr Sawkins sued Hyperion, the record company, over
editions he prepared of four works by the French composer,
Michel-Richard de Lalande (1657-1726) (La
Grande Pièce royale, Te Deum, Venite Exultemus and Sacris Solemniis), which were
recorded in 2001 for the purposes of a CD to be issued by Hyperion.
Hyperion refused to recognise Dr Sawkins' copyright
in the editions and despite Dr Sawkins' protestations, the CD (entitled
"Music for the Sun King") went on sale in 2002. In 2003,
after lengthy attempts to negotiate a settlement, Dr Sawkins issued
proceedings against Hyperion in the High Court. He succeeded at trial
last year before Mr Justice Patten and Hyperion appealed.
The crucial question in the case was whether
copyright subsists in modern performing editions, such as those
produced by Dr Sawkins. Hyperion argued that the music recorded on the
CD was the music of Lalande, not of Dr Sawkins, and that there was,
accordingly, no obligation to pay him royalties or otherwise recognise
any copyright of his.
In the judgment now handed down by the Court of
Appeal, Lord Justice Mummery summarised Dr Sawkins' argument that his
editions were original musical works, entitled to copyright protection,
as follows: (a) he originated the performing editions by his own expert
and scholarly exertions, (b) the editions did not previously exist in
that form, (c) the contents of his editions affected the combination of
sounds produced by the performers and (d) the resulting combination of
sounds embodied in the CD was music.
As Mr Justice Patten had before them, the Court of
Appeal looked at the nature and scope of the work undertaken by Dr
Sawkins to produce his editions. Lalande's works survive in both
manuscript and printed sources, often incomplete and inconsistent. It
is not possible for the music to be performed directly from a single
source and the intervention of a knowledgeable and experienced editor
is necessary for scores to be produced from which musicians can
perform. Editing early music when the sources are fragmented and
incomplete is a detailed and time consuming process and Dr Sawkins
spent over 300 hours on each edition and made more than 3,000 editorial
interventions in the works. As Lord Justice Mummery said, "the
production of the performing editions required substantial effort,
skill and time on the part of Dr Sawkins" and "in my
judgement … the effort, skill and time which the judge [Mr
Justice Patten] found Dr Sawkins spent in making the performing
editions were sufficient to satisfy the requirement that they should be
'original' works in the copyright sense". Lord Justice Jacob
stated "a high degree of skill and labour was involved" which
"had the practical value (unchallenged) of making the work
playable".
The court also rejected Hyperion's argument that
musical copyright could only be secured by composition in the form of
notes on the score. Lord Justice Mummery stated "Hyperion’s
arguments ignore the fact that the totality of the sounds produced by
the musicians are affected, or potentially affected, by the information
inserted in the performing editions produced by Dr Sawkins. The sound
on the CD is not just that of the musicians playing music composed by
Lalande. In order to produce the sounds the musicians played from Dr
Sawkins’ scores of his edition. Without them Ex Cathedra would
not have produced the combination of sounds … for recording on
the CD" and "there is no reason for regarding the actual
notes of music as the only matter covered by musical copyright, any
more than, in the case of a dramatic work, only the words spoken by the
actors are covered by dramatic copyright. … Stage directions are
as much a part of a dramatic work as plot, character and
dialogue."
The Court of Appeal upheld the High Court's award
of damages to Dr Sawkins both for infringement of his copyright and for
infringement of his "moral rights" (the right to be
identified as the author of a work). An enquiry will follow as to the
amount of the damages to which Dr Sawkins is entitled. Hyperion will be
obliged to notify Dr Sawkins and seek his permission before any further
exploitation of his work can take place. He was also awarded all his
legal costs of the appeal (having previously been awarded those of the
trial).
Dr Sawkins said "I am delighted that four
judges have now upheld my rights. None of this would have been
necessary if Hyperion had been prepared to negotiate with me; other
record companies have always recognised my rights in the past. I hope
that this further judgment will now mean that editors of early music
will be properly rewarded for their efforts and that more forgotten
masterpieces will be recorded as a result."
Dr Sawkins was represented by Carter-Ruck and
Counsel Richard Arnold QC (in the Court of Appeal only) and Andrew
Norris. Carter-Ruck and Andrew Norris acted under conditional fee
agreements backed by after-the-event insurance.
Enquiries to Ruth Collard and Antonia Foster at
Carter-Ruck on 020 7353 5005.
Notes
1. The trial took place in May 2004 and lasted 6
days. Mr Justice Patten gave judgment in favour of Dr Sawkins on
2 July 2004. That judgment has now been unanimously upheld by the Court
of Appeal (Lords Justice Mummery, Mance and Jacob) following a 2 day
hearing in March this year.
2. Much of the publicity given to the case since
the trial last year has been misleading, as the Court of Appeal
recognised:
Lord Justice Mummery: "As there has been some
misunderstanding about the legal issues in the case, I should first
make clear what the case is not about. Dr Sawkins has not made any claim in this
action to any copyright in (a) the music composed by Lalande; or (b) an
arrangement, transcription or interpretation of Lalande’s music;
or, (c) a compilation of Lalande’s music; or (d) a typographical
arrangement of Lalande’s music."
Lord Justice Mummery: "if the claim of Dr
Sawkins to copyright in the performing editions were upheld, that would
not prevent other musicologists, composers, performers or record
companies from copying Lalande’s music directly or indirectly or
from making fresh performing editions of their own. All that Dr Sawkins
can prevent them from doing, without his consent, is taking the short
cut of copying his performing editions in order to save themselves the
trouble that he went to in order to produce them."
Lord Justice Jacob: "The solution accords with
a reasonable view of public policy – that the sort of work done
by Dr Sawkins should be encouraged. It saves others the time and
trouble of re-creation of near-lost works, but in no sense creates
monopoly in them. If someone wants to use Dr Sawkins’ short cut,
they need his permission."
3. Dr Lionel Sawkins, a Principal Lecturer in music
at the Roehampton Institute in London prior to retirement in 1985, is
acknowledged to be a world authority on the music of the French
composer Michel-Richard de Lalande (1657-1726). In 2001 the French
government made him an Officier de L'Ordre des Arts et des Lettres. He
was twice invited to act as Conseiller Artistique for festivals of
music by Lalande in Versailles in conjunction with the Centre de
Musique Baroque. Dr Sawkins has devoted much of his retirement to
preparing editions of Lalande's compositions and of the 22 currently on
sale or hire, he has prepared 19. His editions of Lalande (and other
Baroque composers such as Lully, Rameau and Royer) have been performed
all over the world, and recorded on several different labels.
19 May 2005
Carter-Ruck Solicitors
International Press Centre
76 Shoe Lane
London EC4A 3JB
Tel 020 7353 5005
Fax 020 7353 5553
DX 333 Chancery Lane
