Tuesday, May 31, 2005
I Me Mine
I've missed most of the Hyperion/Sawkins flap since I've spent the last few weeks launching a $250 Million capital campaign. (Keep your shirt on, boys and girls -- it's for medicine not music.) Sounds and Fury and Charles Downey have thorough discussions of the matter, and of course Alex Ross has been composing up a storm over at The Rest is Noise, as well as making his own case. Late as I am to the party, I still intend to make my own case.
It seems to me that the court made the right decision on the merits, but muddied the waters in not making one crucial semantic distinction clear: Sawkins has not been declared the owner of the copyright to a work of art, but to a work of scholarship. Hyperion's infringement is not in the performance of Lalande's work of musical art, but their performance of Sawkins's work of musical scholarship. Alex's jokes, while hilarious, are based on the false premise that the court declared Sawkins to be owner of the copyright to the art -- but if tonight I sit down with the manuscripts that Sawkins used and put together my own edition of the score I will hold copyright to that edition, Sawkins will hold copyright to his edition, and performers can choose which edition to use -- and thus, incidentally,which one of us they want to pay royalties to.
Hyperion's problem is that since Sawkins is the only scholar to have recreated the score to the public-domain works in question, Hyperion only has access to the unprotected material via a scholarly work which is protected by intellectual property law. Because of the nature of this protected scholarship, it is inextricably woven in with the unprotected art, and Hyperion can not claim that Ex Cathedra did not perform the scholarship in the recording.
We can illustrate this issue of "access" with a somewhat analogous scenario around paintings. Suppose that I own an original Monet. This painting is not protected by copyright, but I own the artifact itself, so I can control access to it -- and that means that I can dictate the terms under which the painting is photographed. So I photograph this painting and don't allow anyone else to do so -- The photograph and any poster prints I make from that photograph to sell to the public _are_ protected by copyright, so if you take my photograph and reproduce it for sale you are violating my copyright to my photograph and I can sue for damages. In this scenario the "work of art" is the original Monet artifact, whereas in the Hyperion/Sawkins case the "work of art" is the music itself. In this scenario I am the gatekeeper between the public and private domain, and in the Hyperion/Sawkins case Scholarship is the gatekeeper.
So given that Sawkins is suing Hyperion for making a recording based on his edition of the Lalande piece, why don't the publishing houses who release their own editions of, say, The Well tempered Clavier sue Glenn Gould for performing their editions? First of all, Gould probably played from an Urtext edition, in which case the only protected work is the typesetting itself -- surely not reproduced in his recording. But leaving that aside, I assume that in most cases any editorial adjustments to the work in a given edition are either (a) so minor as to not meet the test of substantially and covered by "fair use" (b) based not in the research of a single editor but in common knowledge and a long tradition of scholarship to which no single person can claim ownership, or (c) footnotes intended for the uneducated performer and ignored by the performer on the recording in question. Note, however, that it would indeed be a violation of copyright for me to reproduce verbatim, without permission, and in substantial amount, the editorial content of any protected edition in my own print edition. My understanding is that the reason the Dover editions of scores are so cheap is that they reprint facsimiles of old editions whose copyright has expired, thus saving the cost of hiring a typesetter and any musicology that might be required.
Anyway, since in most cases the protected scholarship doesn't make it into the recording (incidentally, the recording itself is protected by copyright law) the protection of the scholarship doesn't carry over into the recording, but in this case the scholarship did get carried over. Any argument that the court made the wrong decision must successfully argue that Hyperion's recording could have been made with a different (unprotected) edition of the score or directly from the source material with no substantial effect on the final product.
posted by Galen H. Brown
1:36 AM
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