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CLASSICAL  May 2005

CLASSICAL May 2005

Subject:

Re: Hyperion Loses

From:

Karl Miller <[log in to unmask]>

Date:

Tue, 31 May 2005 09:43:20 -0500

Content-Type:

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Parts/Attachments:

Parts/Attachments

text/plain (110 lines)

Anne Ozorio wrote:

>The three High Court Judges ruled "In the judgment now handed down by
>the Court of Appeal, Lord Justice Mummery summarised Dr Sawkins' argument
>that his editions were original musical works, entitled to copyright
>protection, as follows: (a) he originated the performing editions by his
>own expert and scholarly exertions, (b) the editions did not previously
>exist in that form, (c) the contents of his editions affected the
>combination of sounds produced by the performers and (d) the resulting
>combination of sounds embodied in the CD was music."

Again, for me, I would need to see what his source was and what his
edition looked like.  On the ARSC mailing list, the only other list I
subscribe to, some of the transcript of the testimony was included, and
I still don't know what was meant by some of the language...unfortunately,
I could not cross examine.

The one point that I find odd is (c) as listed above.  A published
recording is an edition of its own.  What about the situation where one
musician listens to a recording by another musician and that recorded
interpretation "affects the combination of sounds produced by" another
performer who then records their version which is influenced by the other
performers published (recorded interpretation).  While this is not stated
in the court's decision, it does seem to be a curious notion.

>I don't know how often the situation arises that a work can only be
>made performable only by the knowledge and artistric judgement as was
>needed in this case, where the work existed only in fragment and a
>certain amount of creative originality was needed to put it together.

I remember my second semester of notation when we became so immersed
in mensural notion that we would sight sing madrigals from the original
notation.  For me, it would be an unrealistic expectation for even a
performer of early music to read the original manuscript for performance.
The transcription of mensural notation or a work from the Italian trecento
into modern notation is very time consuming, and deserves some ownership.
Completing a fragmentary work, or, in the case of the Mahler 10th, filling
out the missing lines...and doing so in Mahler's style, is a monumental
task, even if Mahler did have the main thematic material sketched out
to the last measure...by the way, look at a facsimile of that work is
fascinating...I still remember (it has been many years, so my memory
might not be accurate) looking at those last measures where he was down
to writing out only the single line.  It had a profound impact on me.

Again, I do not know how much was contributed to the preparation of the
Lalande performing edition, but from what I read, it would appear that
not a single note was changed.

>It is good that there scholarly people prepared to do this kind of
>research - it's never compensated for enough.  It's good too, that some
>people care enough about music to appreciate what they do.  A company
>that cares enough would want to give its customers state of the art
>expertise.  And listeners too could realise that it's in their best
>interests, to get good quality, even if it costs.

I agree with you on all counts.  On the other hand, based upon my own
experience with my label...I think of the Welte transfers we have issued.
Some rolls will require 20-30 takes before we get it right.  Sometimes
the old rolls, some dating back to 1904, require repair, the take up
roller will slip, causing a jump in the playback.  The man who works on
these transcriptions will compare several different published rolls of
the same performance...especially needed when one copy has problems in
one place and another someplace else.  He brings to this process over
40 years of experience, coupled with his machine which he maintains, and
most of his waking hours.  To date, we have been able to pay for some
of his piano tunings.  Nobody in our company gets paid a penny. We don't
sell enough for that.  We all donate our time and are a tax-exempt
organization.  Artists get paid a percentage of the net.  In short,
nobody, from musicologist to record company is going to get rich.  Should
they be paid...yes...but then the market place in general won't support
a return which will make the enterprise profitable, unless you own the
distribution system, like Naxos.  In their case, they pay musicians
upfront, no percentage.  Musicians are happy to have the opportunity to
record and to have their work available world wide.  Is it fair that
they don't get a percentage?  Well, if they did, there probably wouldn't
be a Naxos.

I wish I knew how this suit came about. I wonder if the musicologist
approached Hyperion and tried to work something out, or if Hyperion
rejected the notion from the beginning.  There is so much of the story
I don't know.  But it does seem to me, that even based upon my limited
knowledge of the situation, nobody has won much of anything.  I guess
if I were to place "blame," it would be on the system that requires such
expense to resolve disagreements of this sort.  For me, I reflect on the
continuing saga of Capitol vs Naxos.  Naxos could have just thrown in
the towel, but they continue to fight it.  I don't believe any other
company would either have the resources, or the interest in doing this.
In many ways Naxos is doing all of those who love the historic performances
a favor...and, in a sense, helping all of the small labels (who would
have probably just had to close up shop under the threat of a lawsuit
from Capitol) that would like to release historic recordings, a favor.
In that instance, I am amazed that as disorganized as Capitol is, that
they even saw the possibility of a lawsuit and then went after it.  As
my father the lawyer used to say,"you don't often find any company suing
on principal, they sue when they think there is money in it." For Capitol,
it was, in my mind, clearly, all about money, in the Hyperion situation,
it would seem to be a great deal about principal.  In both instances, I
see that the music lover stands to lose the most.  Using the business
model of a Capitol records, and their lack of expertise in things
classical, I doubt they would ever consider issuing the very old
performances since they could not turn a profit on them.  Naxos, with
their expertise and business model, probably can, but not if they have
to pay a high reuse fee, assuming they could identify the company that
has the rights.

All I know is that, even with great reviews in the major record journals
and places like the NY and LA Times, our label has yet to make enough
money to pay anyone a salary.

Karl

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