Catastophy for record labels
p2pnet.net News:- In a case with major repercussions for the music industry, British Baroque music expert Dr Lionel Sawkins, 75, has successfully claimed copyright infringement against the UK’s Hyperion Records for a recording of 17th century music.
The Sun King by composer Michel-Richard De Lalande was adapted and arranged by Sawkins and released as a CD in 2001.
But a court has ruled that, “while Dr Sawkins had attempted to produce a score as close to the original as possible, he had nevertheless contributed enough to the original work to claim a copyright,” says Britain’s The Times here.
Now, record companies face a “catastrophic” bill for works previously assumed to be out of copyright but which have been “revived or creatively edited by modern musicologists,”
Until now, copyright has been given to the originator of the music for lifetime plus 70 years, says The Times. “The judgment means that Dr Sawkins must be paid thousands of pounds of royalties from the sales of a CD, Music for the Sun King, of the Lalande music that he revived.
“He and other musicologists have long argued that they should be credited with a copyright of such revivals of lost compositions, but many record companies have refused,” says The Times. “The record industry now faces having to pay many millions of pounds for past and future sales of works that have been edited.”
Hyperion argued Sawkins wasn’t the author of a musical work within the meaning of the 1988 Copyright, Designs and Patents Act, says The Scotsman here.
“Its policy was never to pay copyright royalties in respect of musical works which were deemed to be out of copyright because of their age.”
The Times quotes Sawkins as saying, “For many years many musicologists and editors have been ripped off by record companies. I think there’s been widespread discontent for a long time and widespread dissatisfaction with the attempts by record companies to avoid paying royalties.”
The judge also agreed the acknowledgement given to Sawkins in the CD booklet “for his preparation of performance materials for this recording” was inadequate, adds The Scotsman.
“Although Dr Sawkins is named, he is not identified as the author of the copyright work. The sleeve has to clearly convey Dr Sawkins’ authorship to all possible readers and not simply to those who might have some inside or particular knowledge of what to infer from the words that have been used. The fact is that there was no intention of identifying Dr Sawkins as the author of the musical work and the sleeve notes do not do so. This part of the claim also succeeds.”
Sam Moore
Long dead composers are not, however, the only subjects of royalty claims the music industry routinely tries to brush aside.
In the ’90s, after selling millions of records for Warner Bros’ Atlantic Records, Sam Moore decided to retire. But instead of finding “a comfortable nest egg,” he found, “barely a goose egg”.
He and other music industry veterans are suing Sony, Universal, BMG, Warner and EMI for failure to make or report royalties to their retirement funds.
Following a two-year investigation by New York state Attorney General Eliot Spitzer’s office, the Big Five record labels must now return $50 million to musicians they’ve had under contract.
And in future, SONY Music Entertainment, Sony ATV Music Publishing, Warner Music Group, UMG Recordings, Universal Music, EMI Music Publishing, BMG Songs, Careers-BMG Music Publishing, BMG Music and the Harry Fox Agency must, “ensure that the artists and their descendants will receive the compensation to which they are entitled,” said Spitzer in a statement.
The news came after Spitzer’s office found many artists and writers weren’t being paid royalties because record companies “had failed to maintain contact with the performers and had stopped making required payments,” says a statement here.
In the meanwhile, BMI, the music industry performing rights organization which represents Britney Spears, Eminem, Mariah Carey and Sheryl Crow, among others, says the dollars are rolling in.
July 6th, 2004 at 9:20 pm
Good on ya doc!
July 7th, 2004 at 4:53 am
AND they Call US PIRATES!!!!!!
June 18th, 2005 at 7:31 am
Anybody who wants to know the actual facts of the Sawkins v Hyperion dispute, instead of just swallowing the Hyperion propaganda and the hysteria suggesting that catastrophe for the CD industry is just around the corner should look at http://www.lionelsawkins.co.uk or read the judgment of the Appeal Court (see below).
Dr Lionel Sawkins spent a total of 2.5 years trying to get Hyperion to talk, repeatedly offering to negotiate a single sum in lieu of royalties, without any response. In an interview with the Los Angeles Times last March, Simon Perry (Hyperion’s owner) admitted that this was so but he let the matter go to Court because he wanted to find out whether he was ‘right or wrong’ in his stance about copyright. Then he went further and appealed the judgment. Thus the legal bill he has incurred is entirely self-inflicted. He has also inflicted a long period of stress on Sawkins â as have Jeffrey Skidmore and the Chairman of Ex Cathedra whose conduct contributed to this dispute in the first place, and who were criticised by the Judge for ‘playing both sides off in order to secure the recording’. Sawkins prepared these editions without any written contract believing that previous practice would obtain (he had prepared editions for an earlier recording of Lalande motets by Ex Cathedra for the ASV Label, and have been receiving royalties on that CD) and not until a few days before the Hyperion recording sessions did Skidmore inform him of the stance Hyperion were taking. Sawkins never asked for any commissioning fees from the record company or from Ex Cathedra, assuming, as the Judge said, that matters would follow ‘an honourable and decent course’. He was tricked!
Nor was Sawkins ever paid any editing fee, despite Hyperion’s assertions they did so. The only payment ever made was for the hire of the actual music copies (charged at about 40% of the commercial rate charged for Lalande motets material by, say, Novello or Faber) as, in addition to having prepared the editions, he also self-published them (computer-engraved to the highest standard, printed and bound – almost 300 copies in all). (See below for the MPA and the legal view of the distinction between hire fees and royalties.) If he had worked at an hourly rate equal to the UK statutory minimum wage, (which studio producer, composer, or anyone else in the CD industry would do so?), the editing fee alone would exceed £6,000. If a more appropriate rate was calculated, it would be much more, but apparently, editors should do it all for the honour and glory, according to Hyperion.
It was also open to Hyperion to seek out lawyers to act on a conditional fee basis. The CFA arrangement mainly exists of course to enable individuals like Sawkins (a retired teacher living on a pension; his editing and hiring just breaks even, and he doesn’t pay himself anything) to stand up to powerful, multimillion-pound companies with large advertising (and propaganda) budgets.
Sawkins has spent more than 30 years making available for the first time more than 40 major works, which have been performed by more than 60 organisations worldwide and some of which have been recorded on several other major labels (paying the very modest royalties permitted by the Copyright Tribunal). What is Hyperion’s unique problem?
Sawkins has twice been honoured by the French Government for his work and his ‘contribution to the diffusion of French music in the world’.
In the actual Appeal Court judgment, Lord Justice Mummery very lucidly deals with what this case was about and equally what it was not about; this can be seen at http://www.bailii.org/ew/cases/EWCA/Civ/2005/565.html. The Original judgment of Mr Justice Patten can be found at http://www.bailii.org/ew/cases/EWHC/Ch/2004/1530.html
and includes at para. 49 both the point ‘There is a clear distinction between the charge made for the hire of sheet music and the royalties (if any) payable to the copyright owner for the right to perform or reproduce the musical work’ ⦒made very clearly’ by the CEO of the MPA and the clear admission by Perry ‘that negotiations about the hire fee have nothing to do with copyright royalties’.