Hyperion decide to settle costs

Most reputable record companies have long recognised the role of editors and publishers (and their rights to copyright protection of their editions) in making available the music copies on which any authoritative performance or recording must depend. ['An edition offers a unique version of a composition or substantial new material that is not available elsewhere…that material is fully protected by copyright, and there is no question of its being in the Public Domain, regardless of the copyright status of the underlying work. Record companies, opera companies, educational institutions, religious institutions, routinely pay licence fees to use such editions...'Christopher Johnson (Director, Music [USA], Oxford University Press), quoted in Early Music, August 2005, p. 543].

Lionel Sawkins's editions of the works of Rameau and Lalande have been recorded many times over the last 25 years on a variety of labels, and he has been receiving royalties on them in the usual way (such as on his edition of Rameau's La Princesse de Navarre, recorded on Erato in 1980 and still in the catalogue). The 1990 recording of his editions of Lalande motets on Harmonia Mundi won a Grand Prix du Disque and has sold 23,000 copies. The 1995 ASV recording of three other Lalande editions prepared by him won a Gramophone Award. In fact, for all of his editions of French Baroque music that have been recorded, Sawkins has been receiving royalties, until, entirely unexpectedly, Hyperion decided to challenge the copyright law, declined all offers to negotiate the matter, decided to argue it in court - and lost (twice). ['Perry [Proprietor of Hyperion Records] added that he did have a chance to settle the suit with Sawkins out of court. "Through the whole pre-trial process, his law firm begged and pleaded with Hyperion to plead out of court," he said. "Just pay us our fees and pay him off,' they said. I said, "I'm not doing that. I want to know whether I'm right or wrong. I'm afraid I'm wrong, according to the justice system." Simon Perry quoted by Chris Pasles, Los Angeles Times, 26 March 2005]

Hyperion's sudden decision in October 2001 to refuse to go ahead with the recording unless Lionel Sawkins renounced his rights in his editions came at the same moment as Sawkins was in Versailles being honoured by the French Republic for his services to French music! The intervention of the chairman of Ex Cathedra gave comfort to Sawkins that his rights would be protected if he would allow the recording to proceed — a trust that proved misplaced and the betrayal of which earned stiff criticism from the Trial Judge who observed that 'Ex Cathedra played both sides off in order to secure the recording'. Over the next year, Sawkins attempted to get Ex Cathedra to honour promises and Hyperion to negotiate a single sum in lieu of royalties, but without success. After eventually consulting lawyers, further offers were made to settle, without any response; only when Sawkins's solicitors applied for a default judgment did Hyperion at last consult solicitors themselves. All further offers to negotiate, right up to the day of trial, were also ignored by Hyperion.

Legal costs

Now, it seems that Hyperion may at last be acknowledging their great mistake in challenging the longstanding laws on copyright, by offering to settle their substantial - and entirely self-inflicted - legal bill. In accepting this offer, Lionel Sawkins is saving Hyperion the costs of another expensive court hearing. Lionel Sawkins has also announced that he will donate the damages he has received to a music charity if Hyperion will reverse their petulant decision to delete the disputed recording (a decision which has deprived so many music lovers of the chance to purchase what is an excellent recording) and restore the CD to their catalogue. It is also now time for Hyperion to call a halt to their campaign (and that of some of their overseas distributors) to denigrate Lionel Sawkins and the work he has done over the last 35 years which has made so much French Baroque music available for the first time. Sawkins's many supporters (see feel, as he does, that Hyperion should get on with producing recordings and stop bleating about the consequences of their own misguided actions, and expecting others to pay for them. Lionel Sawkins had no more appetite for going through the courts than anyone else, but what was he expected to do when Hyperion refused to recognize his legal rights or to negotiate? It was Hyperion who decided to argue the matter in court and then, incredibly, to appeal the High Court decision. Hyperion are now saying that the total of legal fees is 'an unreasonable and excessive sum to spend on an argument that has resulted in an award [sic] for £5,500 damages'. But whose decision was it to spend this money instead of negotiating in the first place? (The final amount of damages was the result of negotiation; if Sawkins had insisted on the matter going to a hearing, the costs would have increased still further; it was his decision to accept this amount to avoid such a hearing.)

Other record companies have no problem with recognising the work of editors — what is Hyperion's unique difficulty? When a recording is made, the artists and record producer are all paid at professional rates, the distributors get their hefty cut, the record company pays out for glossy ads in the CD magazines (Hyperion spend approximately £1 on such publicity for every CD they  sell), the retailers get their percentage, yet, so Hyperion seem to think, the editor and publisher on whom the recording depends should give their work away for nothing. Mr Perry of Hyperion admitted in court that it would have taken him 'years and years and years' to have prepared the editions himself if Lionel Sawkins had not done so, but seemed to think he should not pay what is in any event a vcry nominal royalty. This reluctance may of course have something to do with his other admission in court that he had had 'dozens' of disputes with other copyright holders as well as with Sawkins.

Those who have wondered how this situation arose in the first place will want to know that Lionel Sawkins had been preparing new editions for performances by Ex Cathedra (conductor,  Jeffrey Skidmore) for more than a decade and it was Skidmore who had asked him to prepare the editions in this case. Sawkins naturally assumed that previous arrangements (the norm in the industry) whereby copyright had been respected and royalties paid would be followed in this case. Consequently Lionel Sawkins worked, in good faith, for months without contract or payment to prepare the four editions which were exploited on  the Hyperion CD. To his astonishment, and despite his repeated offers to negotiate a single sum in lieu of royalties or an editing fee, the CD was made and released without permission or payment and in defiance of two notices issued by the Mechanical Copyright Protection Society. Unknown to Dr Sawkins at the time, Mr Perry told Ex Cathedra he had no intention of signing the hire contract and he 'would wait and see what Sawkins and his legal friends will do'. Such was Hyperion's contempt for even the common courtesy of discussing the matter with the editor on whose work the recording depended.

Those contemplating contributing to Hyperion's appeal fund might like to consider Mr Perry's recent claims in a BBC interview (Radio 3 CD Review, 15 October 2005) that its sales have risen 'on the back of this case' and that they expect to have recovered from their legal bill 'in 6-8 months'. Mr Perry's claims that he didn't know all the facts of the case and that the legal costs far exceeded estimates are difficult to accept when one takes note of the detailed exchanges of all relevant documents by both sides well in advance of the trial, and the estimates of costs his own solicitors were obliged to submit in advance so that Lionel Sawkins could cover himself with insurance should he lose the case. Mr Perry's recent declaration (Cathedral Music, 2/2005, p. 44) that he intends to 'steer well clear of any editions that even remotely suggest a copyright liability' sheds an interesting light on the value he places on the quality of the music copies from which musicians will be working when recording for Hyperion. Clearly the principal criterion will be neither integrity nor authority, and this 'lowest tender accepted' philosophy leads one to speculate whether the same financial considerations will extend to the performing artists. If so, Hyperion's future indeed looks bleak. Admittedly, some musicians or members of the public don't give a fig for the quality of the editions from which a recording is made, but there are labels that take pride in ensuring that the editions they use are of the highest quality and researched and produced by the finest scholars in their particular fields. One hopes that Hyperion are not going to abandon standards by turning their backs on the necessary research to ensure quality, authoritative editions of early music. Such research needs professional scholars, not star conductors or impecunious students, often ill-equipped to be safely entrusted with the task.
© Copyright 2009 Lionel Sawkins
French Music Editions