Legal Updates

Copyright In The Music Industry - Ownership of Copyright in the Production of New Editions of Existing Compositions

In the case of Sawkins v. Hyperion Records Ltd [2004], the courts had to determine an important point namely, whether copyright was capable of subsisting in the production of new editions of existing compositions of musical works. If so, whether the editor of the new editions would own the copyright in the new editions.

The claimant was an acclaimed expert on the baroque composer Lalande. He produced new editions of three Lalande compositions, along with an existing edition of a fourth composition for recording. The claimant's intention was to produce editions of Lalande's work, in full score which would meet modern critical criteria - something that had not been done previously.


The claimant registered the new editions with the Performing Rights Society and the Mechanical Copyright Society Ltd. The defendant, Hyperion Records Ltd, received permission to use the editions in a recording, subject to certain restrictions on use, acknowledgement of the claimant's authorship and also upon signing an agreement provided by the claimant. The defendant agreed to acknowledge authroship, but refused to sign the agreement or to pay any royalties for the use of the new editions.

The dispute over royalties continued up to the recording date, at which point the ensemble was provided with copies of the scores, and the claimant received a hire charge from the defendant for using the new editions.

The claimant did not stop the recording from going ahead in the expectation that the copyright issues would be resolved.

The defendant went on to record the four compositions of the claimant and thereafter produced and marketed a CD containing these compositions. No changes were made to the recordings. The claimant initiated proceedings seeking, amongst other things, an injunction to prevent infringement of copyright.

The defendant argued that the claimant was not the author of a copyright work for the purposes of the Copyright, Designs and Patents Act 1988. Section 9 of the Copyright, Designs and Patents Act 1988 provides that an author of a musical work is "the person by whom the arrangements necessary for the creation of the work are undertaken". Furthermore, the record company claimed that it relied on an alleged licence from the ensemble to record the compositions.

I n dealing with the important point raised in this case, the court confirmed that the appropriate test for ownership of copyright was whether there was sufficient skill, labour and judgement expended in the production of the new work to be afforded copyright protection.

The court held that the claim for copyright in a new version of a musical work could not be rejected purely on the basis that the editorial composer had made no changes to the notes. Furthermore, a work does not have to be unique, thus allowing the arrangement of an earlier work to give rise to copyright protection, where the requisite skill and labour were evident. An important factor which the courts considered here was the absence of most of the original Lalande manuscript, with other materials disseminated amongst libraries all over Europe. The claimant therefore had to work in over fifty libraries worldwide in trying to pull together the materials needed to produce the new editions.

The courts decided that on the facts, the claimant could establish copyright in three compositions because the necessary skill, labour and judgement were expended. The evidence showed that the defendant had infringed the work. In any case, the claimant could establish copyright in the fourth composition, in respect of the whole piece, being an earlier composition of the claimant. However, "the taking of a movement" which had been recorded did not constitute an infringement of the claimant's copyright by the defendant, due to its size.

Email: Dr Rosanna Cooper

© RT COOPERS, 2004. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.