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Lalande and Lego: Record company on hot bricks

(Sawkins, Ex Cathedra and Hyperion)

Most lovers of classical music have heard of a court case as a result of which Hyperion Records was forced to pay (and, more relevantly, pay costs) for an edition from which an early music recording was made.


That's more or less all that most people know, although many have expressed dismay that rare repertoire will become too costly to record, if there's an extra middleman to be paid, the editor.


The truth - as stated in black and white in the court's judgement - is that this was not really a legal argument at all, but was one about failures of communication (to speak diplomatically) between the three different parties, in which the musicians involved had a major part.


Most discussion has focused on what copyright is; that is because the case needed a legal handle.


But the legal case was sufficiently in the favour of the plaintiff (editor Dr Sawkins) that Hyperion's defence rested not on a musical example but, bizarrely, on the technical specification for Lego bricks!


In fact, the case highlighted not an intellectual issue, but a human and artistic problem, the desperate struggle of musicians simply to practise their profession in adverse modern conditions.


The bare bones of Sawkins versus Hyperion are that Dr Sawkins prepared playing editions of De Lalande, was refused royalties for the subsequent recording by a group called Ex Cathedra, took Hyperion to court and won.


The court judgment is not about what authorship is.


No-one claims that by editing Mozart, you're as good as Mozart. The extremely few people capable of such editing, however, are almost all performers themselves or academics. If the former, fine, they're consulted when their own recordings are negotiated.


An academic's salary includes a research element. In turn, books (including scholarly editions) score points on government funding scales. Academics aren't bothered about royalties; they're already paid as part of their jobs.


Sawkins tells Early Music (XXXIII/3, letters) that he spent c1200 hours on Lalande - 8 months' full-time work; fast for a book. But as he took early retirement in 1985, he was not paid. Had Hyperion paid royalties, or a fee instead, the case would not have arisen.


But royalties from classical recordings are small. Wholesale price is half retail (true in many parts of the retail sector). From that half, the record company must run itself, manufacture CDs and in many cases pay to make the recording. Not much remains unless sales are huge (and a mere 10,000 units would be a smash hit in classical music).


Although academics are badly paid, eight months' salary is far above what an artist expects to earn in royalties off a single recording. Hyperion claimed extra expenses would threaten marginal recordings. Quite right; they would.


Paragraphs 60-61 of the judgment tell you that copyright is about intellectual property; what you get if you do brainwork. Copyright doesn't judge between Mozart and Mantovani, it's there to stop people stealing your work.


Hyperion's case rested on ….. Lego bricks ; literally, on a case about changes in the specification of Lego, too small to confer a new copyright; ditto Sawkins' realisation of Lalande. But the judge said it was indisputable the recording needed the edition, unlike Lego, whereas the old bricks could have carried on being made.


But the judgment also reveals precisely what happened. The musicians, Ex Cathedra (usually ignored by opinion) , had previously financed their own recordings; to be on a premier independent label, and have their recording funded, was a great opportunity.


Sawkins said: ‘Use the editions, on condition you pay me,' Hyperion said ‘We have standard arrangements, if he needs paying, get another editor.' Ex Cathedra said, ‘Don't delay recording; get it done and work out a solution later.'


So Ex Cathedra said separately to both Hyperion and Sawkins: ‘It'll be all right.'


To quote the judge verbatim: Their principal and, in reality, only objective was to get the recording done. The terms agreed with Hyperion were favourable to them and the recording would be important in raising their profile as an ensemble.


As musicians, we cannot have it both ways; the same laws that protect our recordings, compositions and arrangements also protect those whose work we use in performances.


In the end, the notoriety of the case has arisen because Hyperion faced so large a legal bill, enough to fund a hundred recordings. The sad aspect is not that a few recordings will not be made because of editorial complications; it is that a hundred recordings won't be made because Hyperion has had to pay the lawyers.


Ying Chang