Sawkins v Hyperion Records Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Patten |
| Judgment Date | 01 July 2004 |
| Neutral Citation | [2004] EWHC 1530 (Ch) |
| Docket Number | Case No: HC03 C02114 |
| Court | Chancery Division |
| Date | 01 July 2004 |
[2004] EWHC 1530 (Ch)
The Honourable Mr Justice Patten
Case No: HC03 C02114
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Norris (instructed by Peter Carter-Ruck and Partners) for the Claimant
Jacqueline Reid (instructed by Wiggin & Co) for the Defendant
Hearing dates: 10 th—17 th May 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
Michel-Richard de Lalande was born in 1657. In 1683 he was one of four composers assigned to the chapel of Louis XIV at Versailles. There he became the principal court composer both under Louis XIV and under Louis XV, and he remained in that position until his death in 1726.
His principal compositions at Versailles were sacred music in the form of grands motets. By the middle of the 17 th century these were an established form of accompaniment for the Mass and the principal type of sacred music composed for the French court. A grand motet typically comprises a number of sections divided into passages, some for vocal soloists and others for small ensembles of singers and chorus. They also contain orchestral interludes.
Until comparatively recently Lalande was principally known for some 300 short movements described as symphonies pour les soupers du roi. These works (as their title suggests) were played at public suppers held at Versailles during the reigns of both Louis XIV and Louis XV. Few of Lalande's grands motets had been revived in performance and the evidence is that until the 1970s none of the motets had been published in full score in what Dr Sawkins, the Claimant, regarded as modern performing editions. Dr Stanley Sadie, the distinguished musicologist and editor of the New Grove Dictionary of Music and Musicians, who gave expert evidence, had prepared performing editions of some works by Lalande for a recording in 1957 and there had been a handful of other editions, including one in 1964 by J F Paillard of La Grande Pièce Royale. But the Claimant says that he wished to prepare editions of the best of Lalande's works in full score which met modern critical criteria.
Dr Sawkins is acknowledged to be a world authority on Lalande. In 1996 the French government made him a Chevalier de l'Ordre des Arts et des Lettres, an award which is given to both French and non-French artists and writers who have distinguished themselves by the contribution they have made to the promotion and dissemination of the arts in France and in the wider world. In 2001 he was advanced to the senior rank of an officer of that order. In 1990 and again in 2001 he was invited to act as Conseiller Artistique for a festival of music by Lalande held in Versailles and Paris. This involved him in advising on the choice of works to be performed at the concerts and in preparing a substantial commemorative book for each festival, as well as the programme notes and texts for each concert.
As one would expect, most of Dr Sawkins' life has been connected with music. He was born in Australia in 1929 and moved to England in 1958. His musical education began as a child, when he attended classes at the New South Wales Conservatorium of Music and sang with the Conservatorium choir. He had a particular interest in choral music and acted as a church organist and choirmaster at St Andrew's Cathedral in Brisbane. In 1958 he came on a scholarship to study at the Royal School of Church Music and decided to remain in England. From 1959 he was the choirmaster and organist of Holy Trinity Parish Church in Beckenham, where he founded in 1963 the Beckenham Summer Choral Festival. In 1966 he joined the Roehampton Institute as a lecturer of music and became Senior Lecturer there in 1969. In 1983 he was appointed Principal Lecturer. Whilst at Roehampton in 1971 he took a sabbatical year, during which he studied renaissance and baroque music at Nottingham University under Professor Dennis Arnold, who he says directed him towards the music of Lalande. In 1985 he took early retirement from the Roehampton Institute in order to concentrate on his research into French baroque music and to make time to give lectures and workshops on Lalande. This also enabled him to devote more time to the preparation of new editions of his work.
Under the guidance of Professor Arnold he had developed a strong appreciation for European (particularly French) baroque music and became especially interested in the grands motets of Lalande, whose works at the time were largely neglected. His promotion of Lalande's work began with various performances of his work which he conducted in London and overseas and by his encouraging others to do likewise. At the same time he began to research extensively into Lalande and his musical predecessors, aided by bursaries from the French Centre Nationale de la Recherche Scientifique and subsequently from the Winston Churchill Trust. This enabled him to visit all known sources of Lalande's music in the libraries and collections in which they were held.
In his witness statement Dr Sawkins says (and can fairly say) that he has devoted a considerable amount of his working life and also his retirement to Lalande and that he has an extensive knowledge of his musical works and style unrivalled by any other musicologist. He has since 1975 written extensively on Lalande and has had published numerous articles in various books and journals. He has also from time to time presented a number of papers and conducted workshops on Lalande and other French baroque composers at various conferences and symposia held throughout the world. He is a contributor to eight leading musical dictionaries and catalogues in the UK, France and Germany and has also been contracted by Oxford University Press to prepare the thematic catalogue of Lalande's works, which includes over 3,000 musical examples prepared under his supervision. This is not a complete account of the contribution which Dr Sawkins has made, but it suffices to give an indication of the depth and quality of his expertise and of his standing as an expert on Lalande.
In October 2001 the Defendant, Hyperion Records Limited ("Hyperion"), made a recording of four works by Lalande. They were the grands motets Te Deum Laudamus and Venite Exultemus; the Panis Angelicus from the grand motet Sacris Solemniis; and the orchestral piece, La Grande Pièce Royale. The works were performed by Ex Cathedra, a choral and orchestral ensemble with a particular reputation for the performance of French baroque music. It was conducted by Mr Jeffrey Skidmore.
Dr Sawkins' case is that during 2001, at about the time when he was approached to organise the festival of Lalande music at Versailles, he discussed with Mr Skidmore the possibility of a concert by Ex Cathedra either at the festival or in England of works by Lalande, and the possibility also of a recording, using scores prepared by Dr Sawkins. The recording would take place in October 2001 and would be used for the production of a CD which would be sold under the Hyperion record label. The possibility of a recording had been discussed as long ago as 1999, and in 2000 Dr Sawkins had sent to Mr Skidmore summaries of various works, including the Sacris Solemniis, which he considered might be suitable for the recording. It was ultimately agreed that Dr Sawkins would prepare two new editions of the Venite Exultemus and the Sacris Solemniis for the recording and that Ex Cathedra would also use an existing edition previously prepared by him of the Te Deum. Subsequently it was decided that Dr Sawkins would also prepare a further edition of La Grande Pièce Royale due to his (and, he says, Ex Cathedra's) dissatisfaction with the existing Paillard version. His evidence (which on this is not really disputed and which I shall come to in more detail later in this judgment) is that he worked on the editions from about mid-2000 and completed them in time for the recording. He estimates that he spent approximately 300 hours on each of the four works.
The editions were completed by August 2001, when copies were sent to Mr Skidmore. Dr Sawkins followed his usual practice of registering the three new editions with the Performing Rights Society ("PRS") and the Mechanical Copyright Protection Society Limited ("MCPS"), who license the performing and mechanical recording rights in copyright music on behalf of the copyright owners. On the front page of each of the editions there is the usual assertion of copyright, with the date of the work and the name of the Claimant.
The events leading up to the recording are contentious and I will need to come to them in more detail later in this judgment, but what is not in dispute is that in September 2001 Hyperion received from Dr Sawkins, via Ex Cathedra, what was described as a Recording Hire Agreement containing a term to the effect that he was the owner of the copyright subsisting in the four scores and imposing restrictions on what use could be made of the copyright works. The response of Hyperion was to agree that it would credit Dr Sawkins with the authorship of the editions on the CD, but would not be prepared to pay to him any royalties in respect of the copyright works. It refused to sign the agreement and returned it to him. This led to solicitors' correspondence and to an attempt on the part of Ex Cathedra to mediate in the dispute between Dr Sawkins and Hyperion. The primary concern of Mr Skidmore and those at Ex Cathedra was to ensure that the recording went ahead. Dr Sawkins says that he relied to a large extent on assurances given to him by Mr...
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