Composer Secures Victory In Landmark Copyright Case

Following a trial in the High Court in May 2004, composer and editor Lionel Sawkins, represented by Carter-Ruck, has won an action for copyright infringement against Hyperion Records Limited, the record producers.

The case made new law, laying down what is required in order to establish copyright in a musical work, on which there was previously no direct legal authority.

Lionel Sawkins is acknowledged to be a world authority on the music of Michel-Richard de Lalande. Lalande, who died in 1726, was the principal court composer to the French monarchs Louis XIV and Louis XV. Dr Sawkins was a lecturer in music at the Roehampton Institute prior to his retirement in 1985. He has devoted much of his retirement to writing and lecturing on Lalande's music and also to preparing editions of his compositions. What survives of Lalande's work comprises a mixture of manuscript and copy sources, which are very often incomplete and inconsistent with each other. It is not possible for the music to be performed directly from the sources and the intervention of a knowledgeable and experienced editor like Dr Sawkins is necessary for scores to be produced from which performers can play. While some of his work comprises recomposition of individual notes and passages missing from the music, much of the process of editing involves resolving ambiguities in the source material and adding items such as figuring, ornamentation and performance directions.

Dr Sawkins' editions of Lalande (and other Baroque composers such as Lully, Rameau and Royer) have been performed and recorded all over the world. In 2001 he prepared editions of four Lalande works which were performed by Ex Cathedra, a choral ensemble specialising in early music, at concerts in Paris and Birmingham and recorded by them for the purposes of a CD to be issued by Hyperion Records Limited.

Shortly before the recording took place, Hyperion made it clear that they would not recognise Dr Sawkins' copyright in the editions, arguing that the only copyright in the works belonged to Lalande, and that Dr Sawkins had no right to royalties arising out of the recording or to any say over how it was to be further exploited. Despite Dr Sawkins' protestations, the CD (entitled "Music for the Sun King") went on sale in 2002.

After lengthy attempts to negotiate a settlement himself, in 2003 Dr Sawkins approached Carter-Ruck. The firm has an arrangement with NATFHE, the university and college lecturer's union, of which he is a member, to consider whether it will conduct cases of potential defamation and other media-related cases involving its members on a conditional fee basis. Carter-Ruck agreed to take Dr Sawkins' case on as a conditional fee case and subsequently secured insurance for him against his liability to pay the defendant's costs had his case been unsuccessful.

The trial took place in May 2004 and lasted 6 days. Judgment was handed down by Mr Justice Patten in July 2004. He decided that the work undertaken by Dr Sawkins in producing his editions was sufficient for him to be entitled to copyright protection (although he decided that in relation to one of the four works an insufficient amount featured on the CD for his copyright to have been infringed). Hyperion had also sought to argue that Dr Sawkins had granted it a licence to reproduce the works and that he had copied part of one of them from a previous edition. The judge also rejected these arguments.

The judge said "the process of editing undertaken by Dr Sawkins combines the scholarship and knowledge derived from a long and detailed study of the composer's music with a certain amount of artistic inventiveness" and that "I am not persuaded that one can reject a claim to copyright in a new musical work simply because the editiorial composer has made no significant changes to the notes...It seems to me this is too rigid a test and not one which properly respects the reality of what music is. The question to ask in any case is whether the new work is sufficiently original in terms of the skill and labour used to produce it".

In the case of Dr Sawkins' editions, he decided that it was.

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 proceedings.

Ruth Collard represented Dr Sawkins, assisted by Antonia Foster.

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Summer 2004