Hyperion Records Loses Legal Battle with Musicologist Over Copyright for 300-Year-Old Works
Tuesday, July 13, 2004
By Terry Grimley
Just over 3,000 copies of [choir and period-instrument orchestra] Ex Cathedra's CD of music by Michel-Richard de Lalande, "Music for the Sun King," have been sold ó and one of those was bought by me.
'Music for the Sun King' -- works by Michel-Richard de Lalande, performed by Ex Cathedra under Jeffrey Skidmore (Hyperion). It's worth saying at the outset that it's a stunningly beautiful record. I have no doubt at all that it would have sold many more copies if more people had had a chance to hear it.
But despite having been the favourite composer of one of history's greatest despots, Louis XIV, Lalande is very little known by today's music lovers. I had never even heard of him until Ex Cathedra began performing his music a little over a decade ago, working closely with the specialist scholar Dr. Lionel Sawkins.
It proved a fruitful partnership. Ex Cathedra became the first group ever to perform Lalande at the Proms, there was a prestigious performance in Paris and a fine CD on the ASV label released in 1996.
"Music for the Sun King," Ex Cathedra's debut on Hyperion, was even better ó but it has now led to a court case which has wrecked the relationship between Ex Cathedra and Dr. Sawkins and landed Hyperion, subject to appeal, with a £500,000 bill for legal costs.
The case has brought to a head a simmering dispute in the music industry about the status of scholarly editions. Are they simply tools which enable existing works to be performed, or are they new works in their own right?
The judgment has set a precedent in a notoriously difficult area. How exactly do you draw the distinction between an original composition, an arrangement and a transcription?
Usually copyright in a composer's music lapses 70 years after his death. Once it is in the public domain it can be performed and recorded without paying royalties, though there are likely to be other costs such as hire of parts.
Michel-Richard de Lalande But in the case of early music, some form of editing is often required, particularly in the case of rarely performed music such as Lalande's. Original sources may be scattered around libraries in different countries, they may be incomplete or illegible, or one version may contradict another.
An editor is then needed to prepare what is known as a performing edition from the various sources. He or she must make informed decisions about any ambiguities or contradictions, and in cases where individual parts have gone missing, may even have to compose new ones in the original composer's style.
In the case of the four pieces by Lalande recorded by Ex Cathedra, Dr. Sawkins estimates that he spent 300 hours working on each. In one orchestral piece he had to compose two missing viola parts.
The nub of the dispute with Hyperion is that the record company takes the view that the music it has recorded was written by Lalande, and is in the public domain. Dr. Sawkins is entitled to be paid a fee for the use of his edition, but not to claim copyright.
'We've got 1,500 recordings in our catalogue, and almost every single one needs editorial involvement of some kind. You can't use Bach's manuscripts,' says Hyperion's director Simon Perry.
'When we make a recording we are required to notify MCPS (Mechanical-Copyright Publishing Society) and they tell us whether they think it's in copyright and if so we are required to pay 8.5 per cent of the UK dealer price. If you record the music of a living composer ó say John Tavener, he sells a lot of recordings ó we sell the discs at £8.17, so if we sell 10,000 discs that's £7,000 in royalties.'
It's probably fair to say that most people would be surprised that an editor should be entitled to the same rights as if they had composed an entire piece of music from scratch, rather than realising one that already existed.
However, Dr. Sawkins says: 'It's been copyright law for a long time. I have produced versions of works for which no single source is playable. In the case of the orchestral piece I composed two viola parts. Doesn't that entitle me to copyright?'
The originality of Dr. Sawkins's composition was challenged in court with Hyperion claiming that it bore a very close resemblance to an earlier reconstruction in an existing but stylistically unfashionable edition from the 1960s by Jean-FranÁois Paillard. Dr. Sawkins's explanation, accepted by the judge, was that the harmony severely restricted his options, as they had Paillard's.
In the event, Mr. Justice Patten, who had been required to get to grips with such esoteric Baroque matters as the 'figured bass' and even what was in front of organist David Ponsford at the recording session and whether he actually played it, dismissed this approach.
He said: 'I am not persuaded that one can reject a claim to copyright in a new musical work simply because the editorial composer has made no significant changes to the notes. It seems to me this is too rigid a test and not one which properly respects the reality of what music is.
'The question to ask in any case is whether the new work is sufficiently original in terms of the skill and labour used to produce it.'
Hyperion objected that the judge had 'put aside the views of a whole range of people in the industry and decided that it was not necessary to produce new music to gain a music copyright'. In particular, he had ignored an important precedent in a case from the late 1980s. The company's post-judgment statement said: 'Hyperion has always understood musical copyright to be about originality. We contended that the three editions did not involve any significant composition of new music and therefore were not original musical works.' The drama will now move on to the appeal court, leaving the wreckage of the partnership between Ex Cathedra and Dr. Sawkins in its wake.
The group's second CD for Hyperion, a collection of Latin American Baroque music, proved a big hit and has become a fixture of the Classic FM playlist. Ex Cathedra is also continuing to perform Lalande's music, in editions prepared by its artistic director, Jeffrey Skidmore.
All parties agree that the confrontation could easily have been avoided. But a lack of focus in the Ex Cathedra office at a time when it was changing administrators seems to have caused a breakdown in communication which meant that neither Hyperion nor Dr. Sawkins realised they had a major problem until the recording dates were virtually upon them.
Jeffrey Skidmore, artistic director of Ex Cathedra. (photo: www.ex-cathedra.org) They went ahead without agreement on the copyright issue because at that point everyone wanted the record to be made.
As Jeffrey Skidmore said yesterday: 'We all love Lalande and we want to do more. It's unbelievably tragic.'
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