French court backs Baroque music editor

In the case of Lionel Sawkins v. Harmonia Mundi, Cine Mag Bodard and SFP Productions, there are some striking similarities with the case against Hyperion – in one work on the French recording, Lalande’s Dies irae, Sawkins had composed three missing orchestral parts (out of five) (a similar task to that for an orchestral suite on the Hyperion CD), and for the other grand motet (Lalande’s Miserere mei) he assembled a score from multiple sources, making many corrections and additions (again as he did for the grands motets of Lalande recorded for Hyperion). The Tribunal held that Harmonia Mundi had, over several years, infringed Dr. Sawkins’s copyright in failing to seek his agreement to exploit the recording they had made in 1990. The Tribunal also held that Cinemag Bodard and the Société française de Production (SFP), the coproducers of the film, L’Allée du Roi, which has been shown several times on France2 tv and on other tv networks in France and abroad and also issued on videocassette and DVD had also infringed Sawkins’s rights in using in the soundtrack of the film extracts from the Lalande works which he had edited for the Harmonia Mundi recording, without his permission.

The Tribunal held that ‘the intellectual work carried out by Monsieur Sawkins had consisted of realisation, on the basis of the available sources, themselves incomplete, of scores which made possible the revival of works by Lalande, employing his personal skills and technical competence to produce a work of real creation’. In coming to their decision, the court considered the opinions of three expert witness, detailed lists of the work done to produce the editions, and copies of all the source materials as well as the editions themselves. The barristers who appeared for Dr. Sawkins (Alexandra Néri and Sébastien Proust of the Cabinet Herbert Smith), in explaining the French Intellectual Property Code, said that ‘what counts (in deciding copyright) is the personal character of such modifications, corrections and additions made by the restorer, modest as they may be in quantitative or artistic terms. The decisions of the Tribunal conforms eaactly to these principles.’

The judgment underlines the necessity for film companies to obtain the permission of copyright holders before using recordings made from their editions in the soundtrack of a film. In France, tv networks have a general agreement with the French rights organisation SACEM (not including videocassettes), but neither SACEM nor MCPS in the UK have the right to authorise the use of a UK registered work in a film without the copyright holder’s permission.