Sawkins v Hyperion Records Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Jacob,Lord Justice Mance |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] EWCA Civ 565 |
| Docket Number | Case No: A3/2004/1518 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2005 |
[2005] EWCA Civ 565
Lord Justice Mummery
Lord Justice Mance and
Lord Justice Jacob
Case No: A3/2004/1518
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR JUSTICE PATTEN
Royal Courts of Justice
Strand, London, WC2A 2LL
MR RICHARD SPEARMAN QC& MS JACQUELINE REID (instructed by Messrs Wiggin & Co) for the Appellant
MR RICHARD ARNOLD QC & MR ANDREW NORRIS (instructed by Messrs Peter Carter-Ruck & Partners) for the Respondent
Introduction
Does copyright subsist in modern performing editions of the out-of-copyright music of Michel-Richard de Lalande, the principal court composer at the courts of Louis XIV and Louis XV? If, as Patten J held, it does and has been breached, the infringements are actionable by Dr Lionel Sawkins. He is the composer of the performing editions, the claimant in the action and the respondent to this appeal.
Copyright disputes about works of this character and quality are infrequent. They rarely reach trial and hardly ever come before the appellate courts. In this case some interesting copyright points have been argued in depth by leading counsel. In deciding the appeal this court should be specially attentive to the judge's findings of fact about the composition of the performing editions by Dr Sawkins and about the use made of them without his consent by the appellant, Hyperion Records Limited (Hyperion). The result of the appeal ultimately turns, in my judgment, on the application of familiar copyright principles to Patten J's findings of fact.
There has been litigation elsewhere. The court was informed that Dr Sawkins successfully brought proceedings in the French courts for infringement of the copyright in the same kind of performing editions of other music by Lalande. The court was shown a translation of the judgment of the Nanterre Tribunal de Grande Instance of 19 January 2005 Sawkins v. Harmonia Mundi &Ors, relating to his adaptation of Lalande's works Miserere 'a grand Coeur and Dies Irae. The legal content of the formal judgment is of more assistance to Dr Sawkins than it is to this court: we are concerned with different editions of different music governed by a different national law of copyright. The same comment applies to the extracts from Part II of the German law on Copyright and Neighbouring Rights (1965, as amended), which were cited as an instance of copyright protection for editions of non-copyright works.
The appeal
On 2 July 2004 Patten J held that sound recordings of music on a compact disc (the CD) made and sold by Hyperion infringed the copyright in 3 performing editions originated by Dr Sawkins. The judge ordered an account of profits or, at the option of Dr Sawkins, an enquiry as to damages for infringement. The judgment (to which I would pay tribute for its firm findings of fact, its clear conclusions and its careful treatment of the legal issues) is reported at [2005] RPC 47.
Hyperion, for whom Mr Richard Spearman QC appears, appeals with the permission of the judge in respect of the 3 performing editions on which Dr Sawkins succeeded. (The claim in respect of a 4 th work was rejected by Patten J. Dr Sawkins, for whom Mr Richard Arnold QC appears, does not cross appeal against that ruling.)
Patten J also held that the moral rights of Dr Sawkins had been infringed. Hyperion had not identified him as the author of the 3 editions in question in accordance with s77 of the Copyright, Designs and Patents Act 1988 (the 1988 Act). The judge ordered an enquiry as to the damage suffered by Dr Sawkins for acts of infringement of his "paternity right" in respect of the editions.
Performing editions of Lalande
Lalande composed the original music in Dr Sawkins' performing editions. Lalande was born in 1657 and he died in 1726. Any copyright that may have subsisted in his music in the United Kingdom obviously expired long ago. Until fairly recently his sacred music in the form of grands motets was largely neglected. Few of the original manuscripts have survived.
By August 2001 Dr Sawkins, who is a musicological scholar of high repute and a world authority on Lalande, had completed his modern performing editions of 3 of Lalande's grands motets. They contain sections, which are divided into vocal passages for single voices and for choirs, and orchestral interludes:
(1)Te Deum Laudamus (S32) This dates from 1684. Lalande later reduced its length and revised it. Dr Sawkins added a figured bass line. He made 1,139 corrections and additions to the notation necessary to make the music playable;
(2) La Grande Pie'ce Royale (S161) This orchestral piece dates from about 1695. It was published in a Paillard edition in 1964. Dr Sawkins re-created missing viola parts in respect of 153 of Lalande's 268 bars;
(3) Venite, Exultemus (S58) This dates from 1701. Dr Sawkins corrected 27 wrong notes. He made changes or additions to the figured bass (figuring for the basse-continue);
(4) Sacris Solemniis (S74) Only the 6 th movement (Panis Angelicus) was included in the sound recording on the CD. As there was very limited editorial input by Dr Sawkins and his performing edition was not substantially copied on the CD, the judge held that no infringement had occurred. I say no more about it in this judgment.
Dr Sawkins spent about 300 hours working on each of the performing editions of the 4 pieces, making the changes and corrections and modernising the notation. He registered the completed editions with the Performing Right Society and the Mechanical Copyright Protection Society, who licence the performance and mechanical recording rights in copyright music on behalf of copyright owners. He asserted a claim to copyright with his name and the date on the front page of each of the scores of his editions.
He made a grand total of 3,000 editorial interventions in the 4 pieces. It is, of course, more relevant to consider the nature and amount of the work by Dr Sawkins on the individual editions, as he claims a separate and independent copyright in each of them.
The Hyperion CD
Hyperion is a small record company specialising in recordings of neglected works. In October 2002 Hyperion produced the CD "Music for the Sun King." It featured sound recordings of performances played from the scores of the 4 performing editions by the Ex Cathedra choral and orchestral ensemble. Ex Cathedra enjoys a reputation for the performance of French Baroque music. It was conducted by Jeffrey Skidmore. The sound recordings went ahead without the consent of Dr Sawkins. His prior assertion of copyright in the performing editions of the 4 pieces as "original musical works" was disputed by Hyperion. While agreeing that Dr Sawkins was entitled to a hire fee for his work in providing the scores of the editions for the recording (£1350), Hyperion denied that he had any rights in them and refused to pay him any royalties. Hyperion's position is that an editor should never obtain copyright in a performing edition of non-copyright music.
The scores produced by Dr Sawkins were used by the orchestral and vocal performers at Hyperion's recording sessions. The recording of the combination of sounds produced by the ensemble's use of the scores of the performing editions is embodied in the CD. It was accepted that none of the original Lalande music could have been performed by the Ex Cathedra ensemble using only the extant earlier Lalande scores.
Hyperion's principal point is quite simply that the recordings on the CD were of performances of the music composed by Lalande. They were not recordings of music composed by Dr Sawkins. That is the basis of Hyperion's denial of any legal obligation to pay royalties to him for using the non-copyright music of a composer, who died nearly 280 years ago.
Subsistence of copyright
In a copyright action it is necessary to identify the work in which copyright is claimed and then to determine (a) whether the work is one in which copyright subsists under the 1988 Act; (b) who is the author and owner of the relevant copyright; and (c) whether the work has been substantially copied without the consent of the owner.
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.
The claim made by Dr Sawkins is confined to copyright in the particular works originated by him. They take the material form of musical scores embodying performing editions of 3 pieces of music by Lalande. Dr Sawkins originated the performing editions in the copyright sense: that is, he used his own substantial and independent effort, skill and time to create them. They did not exist as such before he produced them. He is the author (again in the copyright sense) of each of the editions.
The dispute is whether any of them fall within the statutory definition of an "original musical work" in the 1988 Act. In brief, Dr Sawkins' case is that they do because (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 Ex Cathedra performers who used them at the Hyperion recording session; and (d) the resulting...
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