Sunday, May 22, 2005

Superb classical label crippled by musicologist

Hyperion Records is a small but superlative classical record label, based in the UK. Discerning classical mag Gramophone regularly gives its releases the honour of a review or an “Editor’s Choice” and it has a superb catalogue spanning an extremely wide variety of repertoire. I have taken particular delight in its Renaissance output, as well as the complete Bach organ works, and the Organ Fireworks series.

From their news page:

Hyperion Records is very sorry to announce that it has lost its defence of the copyright case brought against it by Dr Lionel Sawkins.

Dr Sawkins claimed musical copyright in four editions of the musical works of Lalande. He lost at first instance in relation to the recording of one of the pieces of music but won on the other three. Hyperion appealed with the leave of the trial judge.

Hyperion’s principal objection to the claim made by Dr Sawkins was its contention that a performing edition does not amount to a new and substantive musical work in its own right unless the performing edition is original, in the sense that it amounts to a new musical work. Thus, Hyperion contended that if an edition is an arrangement or interpretation of an existing musical work then it may obtain copyright as an original musical work. Dr Sawkins expressly made clear that he was not contending that his editions were arrangements of Lalande’s music.

Instead, Dr Sawkins made it clear that his intention was to faithfully produce the music of Lalande in a modern performing edition. Hyperion argued that an edition of Lalande’s music that is a faithful reproduction of Lalande’s music cannot itself be an original musical work.

Hyperion contended that Dr Sawkins had produced a modern performing edition and that the skill and labour that he had exerted in doing so gave him a literary copyright in the text. It did not give Dr Sawkins a musical copyright, as the sound was Lalande’s.

Basically, they lost their appeal on a technicality and the judgement has far-reaching consequences. It means that when a record label wishes to record a work where the manuscript or edition is out of copyright, they will still have to seek and pay for a licence before performing from an edition. Performers might also be able to claim musical copyright in a work they have performed, as well as performing rights.

For Hyperion, the consequences are severe. It will have to pay its own legal costs, as well as those of the grasping Dr. Sawkins, and the total liability will be around one million pounds. For a company which employs only 12 people, it’s a crippling blow at worst and will force massive and catastrophic cutbacks at best.

Sawkins is an utter bastard for not seeing the bigger picture and letting his case go when he still could, and the Court (as another blogger agrees) has made profoundly the wrong judgment and clamped down on copyright yet further, in a way which the Judge must have known would have a damaging effect on the classical recording industry. If there is any justice to be had elsewhere, I hope that Hyperion will pursue it. This is simply too dangerous a judgment to be allowed to rest.

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