Summary: In a claim to copyright in musical works the question to ask in any case where the material produced was based on an existing score, was whether the new work was sufficiently original in terms of the skill and labour used to produce it.
Abstract: S claimed that H had infringed his copyright by recording certain musical works. S was a leading expert on the music of a seventeenth century French baroque composer, L. Most of L's original scores had been lost, and S had spent a great deal of his career researching and studying printed manuscripts held in various libraries around the world. In 2000 S started discussions with a conductor with a view to recording four works by L. S prepared new versions of the works. This involved him piecing together the scores from the various sources, including deciding which of the often many different versions of the piece to use; adding missing notes or amending notes where they were incorrect; figuring a bass line; and dividing the full score into parts for the choir and each member of the orchestra. S registered the works with the Performing Rights Society and asserted copyright. The recording was carried out by H but was released on compact disc without acknowledging S as copyright holder. S claimed infringement of copyright but H contended that the only copyright was in the original author, L , and had lapsed due to the passage of time, and that S had done nothing sufficient to assume ownership of the work.
Held, giving judgment for S, that S did have copyright in the work, which had been infringed by H. To establish copyright for work based on an existing piece, the test was whether the new version was "sufficiently original in terms of the skill and labour used to produce it", which involved looking at the piece overall and not merely carrying out "a note for note comparison", Austin v Columbia Gramophone Co (1923) 67 S.J. 790 applied. It was not necessary for the new version to be "unique". The recorded performance of the works could not have been carried out without S's input, which involved far more than simply copying. S, therefore, did have copyright in the works, and their use in the recording without acknowledgement infringed that right.