Sawkins v Hyperion Records Ltd

A performing edition of an earlier musical composition may attract copyright even where it introduces little or no new melody. The question is whether the edition is sufficiently original through the skill and labour used to produce it. Music is not confined to the notes on the score; harmony, figured bass, ornamentation and other musical elements may contribute to what is heard.

Copyright infringement concerns appropriation of a substantial part of the editor’s original contribution, rather than unaltered material taken from the historical sources. Permission to use scores for a recording does not necessarily authorise reproduction of the resulting recording, particularly where the copyright position was expressly disputed. Identification of an editor as having prepared performance materials does not satisfy the author-identification right where it fails clearly to identify authorship of the copyright work.

The claimant, an expert in the music of Michel-Richard de Lalande, prepared modern performing editions of four works used in a Hyperion recording. He alleged copyright in the editions, infringement through recording and sale of the CD, infringement of his moral right to be identified as author, and disputed any licence or acquiescence.

The defendant contended that the editions were merely transcriptions of public-domain compositions and that the claimant had consented to the recording. The central issues were whether the editions were original musical works under the Copyright, Designs and Patents Act 1988, whether a substantial part had been reproduced, and whether any consent or implied licence arose.

1. Copyright in the editions. The statutory concept of a musical work is not limited to the notes appearing in the historical score. Music is the combination of sounds produced by performers, and the audible result may depend on melody, harmony and other musical directions. A rigid requirement of significant rearrangement or addition to the notes was rejected.
2. The applicable question was whether each edition was sufficiently original in terms of the skill and labour used to produce it. The work need not be inventive or unique. Skill and judgment used to correct notation, construct figured bass, restore missing parts and make the works playable may contribute original material. The claimant’s editions involved substantial scholarly and musical work.
3. The added viola parts in La Grande Pièce Royale were independently created and were not copied from the Paillard edition. They were sufficient to support copyright. The corrections, recompositions and figured-bass work in the Te Deum and Venite Exultemus also contributed to original copyright works.
4. The isolated Panis Angelicus movement contained too few editorial interventions to attract a separate copyright when considered alone. Although the claimant was inclined to have copyright in the Sacris Solemniis as a whole, use of that movement alone did not take a substantial part of the whole work.
5. Infringement was established for the three editions in which copyright subsisted. The recording used the claimant’s scores, including nearly all the relevant corrected notes and figured bass. Under sections 16 and 17, the relevant inquiry was appropriation of a substantial part of the claimant’s original editorial contribution, not merely historical material reproduced unaltered.
6. No licence, consent or acquiescence authorised the production and sale of the CD. The claimant’s allowing the recording session to proceed, while expressly disputing the copyright position and reserving his rights, could not establish consent. The claim therefore succeeded for the three editions.
7. The sleeve wording thanking the claimant for preparing performance materials did not identify him as author of the copyright works. The moral-right claim under sections 77 and 78 therefore succeeded.

Not stated in the judgment.