New Copyrights for Old Tunes
28 May 2005
Some years ago I was
consulted by a small pottery that had received a letter from the legal
advisors to a much larger pottery complaining of infringement of copyright
in the designs of one of their product ranges. My solicitors showed me
samples of the complainant’s products. The back of each item bore words
stating that the product was a genuine 18th century design. The
letter of response that I settled for my clients alluded to that stamp. I
never heard anything more about that case. It may well be that my draft did
the trick and threw the complainant’s advisors off the scent. Equally, it
may be that the complainant replied that the response was missing the point,
that sufficient artistic work had been done in the late 20th
century to reset the 18th design to constitute a separate
copyright and that my clients prudently acknowledged the point. Whatever
happened, it highlighted one of the more interesting questions of copyright
law, namely what is the right kind of skill and labour to create a copyright
work.
Copyright
Recycling
The issue probably arises most frequently with artistic works in the context
of a change of medium. It has been recognized at least since Graves Case
(1869) LR 4 QB 715 that a photograph of another artistic work such as
engraving can create a separate copyright. The issue also occurs in literary
copyright where, for example, one work, such as a film script, incorporates
material from another, such as the transcript of a trial as in Warwick
Film Productions Ltd. v Eisinger [1969] 1 Ch 508. The issue came before
the Court of Appeal in the context of musical copyright in
Sawkins v Hyperion Records Ltd. [2005] EWCA
Civ 565. The case concerned the subsistence of copyright in
the performing edition of long out-of-copyright musical works. Although, as
Lord Justice Mummery observed, cases of that kind are infrequent and rarely
come to trial let alone appeal, the decision is an important one. The
judgment contains insight from Lord Justice Jacob as well as from Lord
Justice Mummery on the nature of musical copyright and originality. Given
the vigour with which the music publishing and sound recording industries
have defended their markets in this country and America recently, this case
is likely to be cited in many different contexts.
The Issues in Hyperion
At trial, Mr Justice Patten had held that Hyperion Records had infringed the
copyright in the performing editions of three works of the 17th
and early 18th century French composer Lalonde made by the
well-known musicologist Dr. Lionel Sawkins and infringed Dr Sawkins moral
rights in failing to identify him as author of those editions (Sawkins
v Hyperion Records Ltd. [2004] EWHC 1530,
[2005] RPC 47). Dr Sawkins had set out to reproduce the
composer’s work as faithfully as possible in his performing editions. He
admitted in cross-examination that, save for one piece, he had not actually
composed anything new. He did not claim copyright in Lalande’s music, an
arrangement, transcription or interpretation of Lalande's music, a
compilation of Lalande's music or any typographical arrangement of Lalande's
music. His case was that he had originated the performing editions by his
own expert and scholarly exertions, the editions did not previously exist in
that form, the contents of his editions affected the combination of sounds
produced by the performers whom Hyperion recorded and the resulting
combination of sounds embodied in the CD was music. Hyperion attacked Mr
Justice Patten’s judgment on the grounds that work that strove to be as
close as possible to Lalonde could not be “original” and that in so
far as it made no difference to what was perceived by the ear it could not
be “musical work.”
Originality
Lord Justice Mummery had no trouble with the first point. If a newspaper
reporter can get copyright in a faithful account of a political speech as in
Walter v. Lane [1900] AC 539 there was no reason why a musicologist
should not claim copyright in a faithful rendering of a classical score. As
for the second, his lordship’s view was that a musical work consists of more
than just notes. It can include the figuring of the bass and performance
directions. On that premises, a fresh copyright is formed of the work as a
whole. In the British (though not perhaps the American version of the common
law) such a work is not to be dissected into copyright and non-copyright
parts. Lord Justice Jacob had more trouble with originality in view of Dr
Sawkins’s admission that he had created no new music but he also came to the
conclusion that Walter v Lane was still good law, even though under
the legislation under which the appeal was decided did not require the work
to be “original”. The Ontario Court of Appeal has recently reached a similar
conclusion through different analysis in
Glen Gould Estate v. Stoddart Publishing
Co. Ltd.,
1998 CanLII 5513 (ON C.A.), (1998), 161 D.L.R. (4th) 321.
Comment
This case reveals much about how copyright works. The right protects value
added. When text is edited, for instance, a new literary copyright springs
into being. The value added is the product of independent skill and labour,
that is to say the input that makes a work “original”. Skill and labour of
itself is not enough. It has to add to the artistic, literary, musical or
other creative value of the work in question. That is what is meant by the
term “the right kind of labour.” In the case before the Court of Appeal Dr
Sawkins editing was the right kind of skill and labour because it rendered
performable Lalande’s work. The consultation, testing, observation and other
assistance to the programmer in
Fylde Microsystems Limited v. Key Radio
Systems Limited
[1998] EWHC Patents 340
was not.