I know I sniggered at Alex Ross’s recent post on the Hyperion saga, but there’s a serious point here that is being overlooked. And I also know that I’ve used words like ‘chilling’, ‘wreckage’, ‘awful’ in relation to the ruling against Hyperion, but I’ve been giving it more thought and revising my first reactions considerably.
First of all, I’m amazed at how many (at last count all but A.C. Douglas and me, although my thoughts have taken some time to crystallise admittedly) of the scholarly, writerly, creative side of the equation are instinctively siding with the record company, and against the scholarly, writerly, creative plaintiff. Personally, I’m pleased in many ways that for once, authorial control has been teased away from the record companies, and restored to those who actually work manuscript-in-hand. This is a Good Thing. Once again, the actual costs of this to the companies on a recording-by-recording basis (given that up until now it was assumed that Early Music was available scot-free) are not going to cripple the industry. Hyperion acknowledge this themselves. The reason they are in deep financial trouble is that they followed bad, and expensive, legal advice to appeal a case they had already comprehensively lost once already. For the sake of not paying Sawkins – and other editors like him – what will surely have been a pretty paltry sum, they’ve gambled and lost to the tune of several hundred thousand pounds (and, lest we forget, this is about paying money – Hyperion were happy to credit Sawkins in respect of authorship, but would not agree to pay him royalties). There are words for that sort of thing – let’s not get misty-eyed about this. I’m sorry that one of the better labels is going to suffer financially – I really am – but they must have had some knowledge of the serious risks they were taking for their relatively small gain.
Not all copyrights are the same. Copyright DOES NOT de facto mean all royalties for the work. Under existing (EU/European) law, as shown by this case, the work of an editor like Sawkins, has value. This is measured – more or less quantitatively if needs be (see a whole string of recent cases about illegally copying database information: Fixtures Marketing v OPAP (referred from Greece), Fixtures Marketing v Oy Veikkaus Ab (referred from Finland), Fixtures Marketing v Svenska Spel Ab (referred from Sweden) and British Horseracing Board v William Hill) – by the amount of work required to complete that work. Sawkins, as a scholarly professional, presumably put a lot of work – intellectual and physical – into preparing his editions of the scores. Just as, for example, Naxos’ engineers put a lot of work into their remastered Menuhin recordings (which, under EU law let’s not forget, are Naxos’ copyright, not ‘bad, evil’ Capitol’s, and we all applauded that decision, even if the specifics of US law have thwarted it for the time being). Sawkins, therefore, can legally claim some rights over the scores that Hyperion recorded: the court is not saying that Sawkins wrote Lalande’s piece: rather that he put a great deal of work into his edition, and it is that work that deserves to be recognised. Were Lalande still alive, or his work still under copyright, he or his estate would be entitled to a share of the rights too. A greater share (assuming that there was no conflict between Sawkins and Lalande himself over authorship of course, but that is an entirely different question). The biggest share, of course, goes to the record company, but let’s not let that get in the way of a good argument… If, on the other hand, Hyperion wanted to record Lalande’s works, and needed an edition (as, for example, has happened with publishers of Shakespeare, say), they would approach someone like Sawkins and commission an edition from him. If they wanted, having bought his work, they could write in their copyright ownership into the contract (they’d be fools not to), but they can not expect to get his work for free. What’s more, his name would be asserted as editor (again, NOT author) of the work in all subsequent performances, reprints and recordings. This is how life is: if you have made something that someone else values, you are entitled to request payment. You are, of course, equally entitled to choose to freely distribute your work in a variety of colours, but that decision must rest with the individual who has put the work in. As a fledgling professional academic myself, I’m cock-a-hoop for my early music colleagues that their endeavours are finally being recognised as valuable to the wider world.
So, Alex (and Marc Geelhoed) are correct on one count: their ‘corrected versions’ of Tristan and Beethoven 5 are, in some small part, copyrighted by them. Should things come to a legal dispute, I’m sure a judge would rule that the changes are protected by copyright only in a small way – and possibly, he would see through the whole thing and rule that a couple of minor tweaks that add neither discernable value nor artistic merit to established repertory pieces that have done very well for a hundred years or more do not constitute work of any value at all. (Sorry Alex and Marc, I’m just picking on you to make a point😉 )
However, there is one essential point being missed here, and it is precisely why Sawkins’ editions warrants legal recognition, and some altered notes in Wagner or Beethoven don’t. Copyright is only meaningful if someone else sees value in that work. Sawkins’ Lalande edition clearly has value – the amount of money Hyperion were prepared to risk in order to retain their exclusive rights to its recording is as clear an indication of this as you will see. Alex’s Tristan refix is – I presume, but apologies Alex if I’m doing your work a grave injustice – of little value to anyone. Since we’re never going to hear that “brief xylophone solo in the King Mark scene” in commercial performance or recording, copyright in that version of the score is to all intents and purposes worthless.
[In the spirit of this whole post, credit where it’s due to milady for links, fact checking, and several of the opinions expressed]