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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Sawkins v Hyperion Records Ltd  EWHC 1530 (Ch) (01 July 2004)
Cite as:  4 All ER 418,  EWHC 1530 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| LIONEL SAWKINS
|- and -
|HYPERION RECORDS LIMITED
Jacqueline Reid (instructed by Wiggin & Co) for the Defendant
Hearing dates: 10th - 17th May 2004
Crown Copyright ©
Mr Justice Patten :
Copyright in a Musical Work?
La Grande Pièce Royale
"a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music."
"sounds in melodic or harmonic combination whether produced by voice or instruments."
Everyone is familiar with Congreve's reference to music having charms to soothe the savage breast, which illustrates that as a matter of language music is the combination of sounds which the performers produce, rather than the notation on the score. This is reflected in the definition of a musical work in s.3 of the Act and its emphasis on the music as the essence of the copyright work. In Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs (3rd edition), at paragraph 3.55, the editors state that:
"Music is primarily intended for appreciation by the ear. Hence whenever a question arises in the field of musical copyright, such as originality or infringement, scholarly analysis may be useful, but the impact on the ear is ultimately more important; what it sounds like matters more than the notes which are written down."
"… in general the product of the mind of a human author which is intended to be performed by the production of a combination of sounds to be appreciated by the ear for reasons other than linguistic content, the originality of the work resulting from the exercise of substantial independent skill, judgment or creative labour expended on its creation as opposed to its mere interpretation."
But the authors a little later make the point that the distinction between interpretation and composition is easier to state than to apply. In Hadley v. Kemp  EMLR 589 the issue was whether three members of the group Spandau Ballet were entitled to be treated as joint authors of the songs in which copyright was claimed. The songs had been composed at home by another member of the group who was a keyboard player and singer, but then played and learned by the claimants, who added their own interpretation to the performance. Park J held that their contribution as performers was not an original contribution to the creation of the songs. This was an application of the dictum of Blackburne J in Godfrey v. Lees  EMLR 307, who described the test of joint authorship in these terms:
"What the claimant to joint authorship of a work must establish is that he has made a significant and original contribution to the creation of the work and that he has done so pursuant to a common design. See, for example, Stuart v. Barrett  E.M.L.R. 448. It is not necessary that his contribution to the work is equal in terms of either quantity, quality or originality to that of his collaborators. Nor, in the case of a song, does it matter that his contribution is to the orchestral arrangement of the song rather than to the song itself."
"… it is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that labour, skill and capital should have been expended sufficiently to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material."
"The word "original" does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of "literary work", with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author. In the present case it was not suggested that any of the papers were copied. Professor Lodge and Mr Jackson proved that they had thought out the questions which they set, and that they made notes or memoranda for future questions and drew on those notes for the purposes of the questions which they set. The papers which they prepared originated from themselves, and were, within the meaning of the Act, original. It was said, however, that they drew upon the stock of knowledge common to mathematicians, and that the time spent in producing the questions was small. These cannot be the tests for determining whether copyright exists. If an author, for the purposes of copyright, must not draw on the stock of knowledge which is common to himself and others who are students of the same branch of learning, only those historians who discovered fresh historical facts could acquire copyright for their works."
In Redwood Music Ltd. v. Chappell & Co. Ltd.  RPC 109 Robert Goff J applied this principle to various arrangements of a popular song, "Zing". It had been submitted to him that an arrangement of an existing work only attracted a separate copyright if it involved great skill and labour. After quoting the passage from the University of London Press Limited case referred to above, he went on as follows (at page 115):
"That passage was cited with approval in the House of Lords in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd  1 W.L.R. 273 at pp. 277-78 per Lord Reid, where he stated that there was no dispute about the meaning of the term "original". It is on this basis, of course, that there may be copyright in works of a comparatively humdrum nature, such as straightforward translations; though of course such copyright may be of little value, because another such work may be produced without difficulty, without recourse to the copyright work. I should add that the decision in Wood v. Boosey, relied on by Mr Bateson, although decided before the Copyright Act 1911 and not therefore decided as a matter of construction of the statutory words "original work", is in my judgement consistent with the test proposed by Peterson J. The case was concerned with the question whether a piano reduction by Brissler of Nicolai's opera The Merry Wives of Windsor attracted a separate copyright in the arrangement, or whether the copyright in the piano reduction belonged to the owner of the copyright in the original opera. In holding that the piano reduction was an independent composition in which the arranger, as author, owned the copyright, the Court of Exchequer Chamber considered the questions whether it was "a new and substantive work in itself" (see p. 229 per Kelly CB.), or whether there was "something in the nature of authorship in Brissler" (at p. 233 per Bramwell B.) – tests at least consistent with that now adopted in relation to the statutory definition under the Acts of 1911 and 1956."
"Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.
There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing. Moreover it must be borne in mind that the Copyright Act 1956 confers protection on an original work for a generous period. The prolongation of the period of statutory protection by periodic reproduction of the original work with minor alterations is an operation which requires to be scrutinised with some caution to ensure that that for which protection is claimed really is an original artistic work."
Consent / Acquiescence
i) that Ex Cathedra were permitted to use the editions for the recording session and were therefore entitled to grant a sub-licence to Hyperion to record the relevant works;
ii) that Dr Sawkins himself granted an implied licence to Hyperion by accepting an editing fee of £1,278; and
iii) that faced with Hyperion's refusal to acknowledge his copyright or to pay a copyright royalty, Dr Sawkins allowed the recording session to go ahead and therefore was to be taken to have consented to the recording and the subsequent issue of the CD.
"I assume that Hyperion are aware that all three editions are registered with PRS and MCPS and will be eligible for the usual royalties unless they wish to make an offer in lieu."
"3. The material is supplied solely for the above-mentioned recording. It must not be used for any other mechanical reproduction whatsoever, including silent or sound films, video, television, or radio transmission unless expressly agreed in writing in advance. Signature of this contract does not authorise Hyperion records or Ex Cathedra to sell on, or pass on the Matrix, nor to reissue such recording at a later date without further negotiation with Lionel Sawkins. All rights in this edition, including publication, performance and subsequent recordings by other parties are retained by Lionel Sawkins.
4. The Recording is notified to the Performing rights organisation of the country of recording, and the name of the copyright owner (Lionel Sawkins) is clearly stated on the recording packaging, the enclosed booklet and the recording itself."
Ex Cathedra was also invoiced for the music hire charges.
"To date, notwithstanding Hyperion's wish to record the Works, no agreement has been reached between our client and Hyperion according to which our client has consented to Hyperion's use of his copyright material. In the circumstances, please be aware that any unauthorised use of our client's Works (and any infringement of his copyright therein) will entitle our client, at his discretion, to seek injunctive relief and/or damages amongst other remedies.
Please accept this letter as notice that should Hyperion proceed on the basis outlined in your letter of 15th October 2001 addressed to our client, a copy of which is attached, we anticipate receiving instructions to fully protect our client's rights. Without prejudice to the foregoing, our client fully and unequivocally reserves his rights."
"Payment of this invoice relates to use for the above-mentioned recording and does not entitle the hirer to use the recording for any other mechanical reproduction whatsoever unless expressly agreed in writing in advance. Payment of this invoice does not entitle the hirer to sell on or pass on the Matrix, nor to reissue such recording at a later date without further negotiation with Lionel Sawkins. All rights in these editions as notified to PRS Ltd and MCPS Ltd including publication, performance and subsequent recordings by other parties are retained by Lionel Sawkins"
"With thanks to Dr Lionel Sawkins for his preparation of performance materials for this recording."
Mr Norris submits that this is inadequate. It does not identify the Claimant as the author of the musical work, as required by s.77(1) of the 1988 Act. The reference to "performance materials" is unclear and considerably understates what Dr Sawkins has in fact done. He also makes the point that where the author, in asserting his right to be identified under s.78, specifies a particular form of identification, then s.77(8) requires that form to be used. In this case the assertion of the right to be identified was made in the letter of 6th February 2002, in which Dr Sawkins said that the sleeve-notes must carry the legend: "© Copyright 2002 by Lionel Sawkins". This has not been observed.