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CLASSICAL  June 2005

CLASSICAL June 2005

Subject:

Re: Hyperion Loses

From:

Karl Miller <[log in to unmask]>

Date:

Sat, 4 Jun 2005 18:27:26 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (89 lines)

Anne Ozorio wrote:

>It's nice to speculate and discuss related issues but unless the actual
>judgement in this case are examined for themselves, the debate will go
>further and further from the facts.  Here's the actual judgement:
>
> http://www.bailii.org/ew/cases/EWCA/Civ/2005/565.html

Thanks so much for sharing that citation.  I find it curious that Hyperion
paid an amount, equivalent to the cost of pressing 1,000, for the use
of the rental score and parts.  While the summary suggests that Sawkins
had registered his work with the appropriate agencies, one wonders if
there was a copyright notice on the performance materials.

Continuing to play devil's advocate...

Supplying a viola part is often something that is done by a member of
the performing group...filling in harmony or doubling another line.
On the other hand, they did choose to use Sawkins' realization.

As for the figured bass...if a particular recording features a realization
of that bass done by the performer and another performer hearing that
recording, chooses to use that realization, one wonders if that could
be seen as a copyright violation.

As to the amount of work, I have a problem with the statement of 3,000
editorial interventions.  I wonder about "correcting" notes...was he
correcting the composer's notes?  correcting from previous editions?

However...

Even without the original and the edition in hand, based upon the summary,
the court's decision seems appropriate.  Yet it does give me pause to
consider some similar situations...

I wonder, if someone used, for example, the Schnabel edition of the
Beethoven Sonatas (possibly still copyrighted) should the musican be
required to pay mechanical rights?  Schnabel would suggest how to perform
a specific ornament...then what if a musician consulted several editions
in preparing their recording?

>detail in the transcripot of the first case).  What can be heard on the
>Hyperion CD would not be heard, as such, had Sawkins not put it together
>in that way.  Money is not the issue at all - the amount of time that
>went into the work would come to zilch per hour.  The underlying principle
>is that good work deserves to be acknowledged.

Since, it would appear, Sawkins's work was the sole source, indeed it
would seem he was not given adequate recognition.

It does make one think about things...suppose, looking at the manscript
of some major piece in the literature, a scholar finds a dozen notes
that were "wrong" in the printed edition.  Should that entitle the scholar
mechanical rights anytime the piece is played with those corrections?

I guess I wonder, at what point does an edition become a new work...I
guess that is for the courts to decide.  Nobody is getting rich, for
sure.  I wonder if Hyperion predicated their position based upon the
response one can get from any company that is concerned if one claim
could open the door to many other claims.

Even if Hyperion was wrong, perhaps both in their perspective and, I
would assume, their unwillingness to negotiate, there could be a potential,
as we have discussed on this list that the work of scholars like Sawkins
might remain unperformed and unrecorded as a result of this decision.
I am reminded of a story my father (an attorney) told me.  For several
years he handled personal injury cases for UPS.  He told me that when
he was doing work for them...some 50+ years ago the drivers had training
in defensive driving.  One of the illustrations in their course book was
a picture of two graves.  Coming out of one grave was "I had the right
of way," and out of the other, "No, I had the right of way." The point,
while maybe one person was in the right, they both lost.

I hope we don't lose Hyperion and I hope we don't keep scholars from
their research, but then my comments are coming from someone who would
love to have his tax exempt record company make enough money so he could
devote himself full time to it...realizing if we did make enough money
for a salary, I would have to step down from being head of my board...however
I certainly didn't expect the company to put food on the table...that's
why one has a day job.

On a related note...should any of you have interest, you might enjoy (or
get depressed) checking out the URL below.  Even when you know you have
a copyrighted work, trying to find ownership can keep you from using it
legally.

   http://www.copyright.gov/orphan/index.html

Karl

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