From London's Appeal Court today comes a deeply disturbing ruling. The Court has passed down its judgement in the protracted legal dispute between Hyperion and an Early Music editor. And the ruling looks like very bad news for fans of Hyperion's recordings, and all purchasers of classical CD's.
The CD that could change the face of classical recording for the worse
The dispute centred around a performing edition of works by the 17th century French composer Michel-Richard De Lalande edited by French Baroque expert Lionel Sawkins. The performing edition was used in Hyperion's CD Music for the Sun King. Hyperion took the position that the revised text for the works including the grand motets Te Deum Laudamus and Venite Exultemus were the intellectual property of Lionel Sawkins; but the edited music itself which was neither an arrangement or adaption (the tests previously established for copyright to apply), so royalties were not applicable on the music. A High Cout ruling last year found in favour of the music editor, and established that Sawkins edition was in fact an original and legally protectable music work. Hyperion took the case to the Appeal Court, and that Court today upheld that copyright was applicable. The Court judgement used the precedent of a ruling in a dispute over copyright between the Tyco toy company and the maker of Lego bricks. Clearly the English legal system sees important connections between toy bricks and music composed for Louis XlV.
There are two deeply disturbing aspects to this decision. First, the work of editing, as opposed to arranging or adapting, will make the edited edition the intellectual property of the editor. A payment for use of copyrighted material will be generated, thereby forcing already marginal recording projects deeply into the red. (It is normal practice for the editor to receive an editing fee, as happened in the case of the Hyperion recording).
Secondly the legal firm of Carter-Ruck representing Lionel Sawkins acted on a conditional fee. This means no win, no fee. But it also means in the event of a win there is a big fee. Unconfirmed reports indicate the legal costs to Hyperion may be in the region of £1million, and that may jeopardise the financial position of this innovative champion of serious music. (Follow the links on this page to Hyperion's version of this case)
Lionel Sawkins has been confirmed by the High Court as having a copyright on his edition of Lalande's music. But it is a pity he didn't stop to consider that his victory would be pyrrhic. If this ruling prevents the recording of similar music, or in the doomsday scenario if Hyperion are forced to the wall, there will be no work for editors of music such as Sawkins. So who is the winner, other than the lawyers?
Here is part of Hyperion's statement today...
Hyperion now is forced to reconsider its general recorded output and will be reducing dramatically its commitment to many new recordings over the next year or two to concentrate on fund-raising activities to help with the legal costs and to keep a limited number of new recordings in its diary. The collateral damage caused by this decision not only will affect the prosperity of the company but also the dozens of artists and groups, producers, engineers, composers, music publishers and musical editors but most importantly the record buying public whose access to rare and collectable repertoire served by Hyperion, and perhaps many of the other record labels, will be severely diminished.
A good definition of lose/lose for the music industry if ever there was one.
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