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Friday, 2 July 2004

"ILS ONT CHANGE MA CHANSON ...": THE TUNE MAY BE FRENCH, BUT AN ENGLISH SCHOLAR OWNS THE COPYRIGHT


Mr Justice Patten delivered his judgment yesterday in Sawkins v Hyperion Records, [2004] EWHC 1530 (Ch). Sawkins, acknowledged expert on the baroque composer Michel-Richard de Lalande, entered into discussions with the conductor of a choral and orchestral ensemble. These discussions culminated in an agreement that Sawkins would prepare new editions of three Lalande compositions for recording, as well as a previously prepared edition of a fourth composition. Sawkins registered each of the new editions with the Performing Rights Society and the Mechanical Copyright Protection Society Ltd. Hyperion, the recording company, refused to pay Sawkins any royalties. They remained in dispute up to the recording date, during which time the musicians were provided with copies of the sheet music for which Sawkins received a hire charge. After Hyperion recorded the four compositions and brought them out on a CD, Sawkins sued for copyright infringement and sought, among other things, injunctive relief. Hyperion denied that Sawkins was the author of a copyright work within the meaning of the Copyright, Designs and Patents Act 1988, but also alleged that it had a licence from the ensemble to record the compositions.

Patten J was required to determine, as a primary issue, whether the production of a new edition of the score of an existing composition was capable of vesting in the editor copyright in the musical work as recorded in the score produced. Holding for Sawkins, he explained that the appropriate question, where a claimant's work was based on an existing score, was whether the new work was sufficiently original in terms of the skill and labour used to produce it. A claim to copyright in a new version of a musical work could not be rejected just because the editorial composer had made no significant changes to the notes. That would be too rigid a test, which did not properly respect the reality of what music was: since there was no legal requirement that an original work be unique, an arrangement of an earlier work could give rise to a copyright. As the judge commented:

"There can be no doubt that Dr Sawkins has applied to the task of editing the four editions under consideration considerable skill and labour based on his own expertise in respect of Lalande. The work was laborious and painstaking and extended over a considerable period of time".
In this case Sawkins could establish copyright in three compositions and, on the evidence, it was clear that his copyright had been infringed. As for the fourth composition, in which Sawkins also owned the copyright, an insufficient portion of it had been taken to constitute infringement.

The IPKat is surprised that this case got to court. The principles involved are fairly well-established and have been thought to be uncontroversial, as the judge's citations of authority demonstrate.

Other Lalandes here and here ...
... not to be confused with the Lalondes here, here and here

1 comment:

Paul Geller said...

I do not think that the issues in the _de Lalande_ case - or in cases like the Israeli _Dead Sea Scrolls_ case - can be disentangled using traditional copyright analysis - whether of the Anglo-Israeli or the Continental/U.S. sort. The court in the _de Lalande_ case approaches an analysis which I have proposed for infringement analysis - asking at points: Does the elaboration of the prior work result from more than rote procedures? Note that the response is critical, not so much for determining whether there is protection _vel non_, but rather for the scope of protection. See my _Hiroshige vs. Van Gogh : Resolving the Dilemma of Copyright Scope in Remedying Infringement_, published in the Journal of the Copyright Society of the USA, vol. 46, p. 39 (Fall, 1998), and posted in short form at: http://www-rcf.usc.edu/~pgeller/dilemma.htm

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