Hyperion Appeal Dismissed
© Copyright 2009 Lionel Sawkins
French Music Editions

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.

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

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