On 14 Feb 2006 at 16:11, Kim Patrick Clow wrote: [quoting me throughout, without attribution] > >>Perhaps, but the original decision itself was musicological > nonsensical.... > > There is NO perhaps in this matter. Had Hyperion simply given Dr. > Sawkins a residual for each CD sold, as he asked at the start of the > project, none of this would have gone to court. No bad decisions would > have been issued.
You mean Hyperion should have acquiesced to blackmail, i.e., pay me now or I'm going to sue you? Sawkins didn't deserve performance royalties. No musicologist acting as an editor as Sawkins was deserves performance royalties. > And this wasn't an outlandish request: ASV Records had paid such > royalities before. . .. I'm not sure why Hyperion or any record company should be bound by the policies of another record company. They could certainly choose to pay Sawkins for whatever they liked, but they chose not to, and were on quite firm ground, musicologically speaking, when considered in light of any reasonable definition of "original composition." > . . . What's different in this circumstance, is that a > court agreed with the editor, that he IS entitled and REQUIRED to be > paid royalities. . . . The court's reasoning was entirely specious, based on invalid determinations of what constitutes originality in the field of editing. The judge didn't understand the highly circumscribed nature of what Sawkins was doing, the fact that there were virtually no actual choices to be made in regard to the contributions he made to the edition -- the original work of de Lalande controlled the very small number of possible reailizations because de Lalande is the author and composer of the work in question. > . . . The issue isn't that Dr Sawkins is making himself to > be the composer, he simply wants compensation for the intellectual > property he created, i.e. his performing edition. . . . He received the standard editing fee from Hyperion, which never ever tried to deny him that. What Sawkins sued for was something that editors do not get, except in the rarest of circumstances, which is performance royalties. > . . . Without his > contributions, the piece could not have been published or performed. > It's that simple. Without the contributions of the janitor who sweeps the floors in the recording studio the recording could not have been made. Should we thus pay him performance royalties, too? The work of a large number of people is required to get works performed and recorded, but that doesn't give them a claim to authorship in the work being performed. That is de facto what Sawkins was claiming, that he is the author of the work that was performed. > Dr. Sawkins has over 12,000 manhours invested in his editions. > Hyperion owed $3,000.00 in royalities from CD sales), that nets him > an hourly wage of about $4.00. When Hyperion was producing the CD, Dr. > Sawkins states that he "repeatedly [offered] to negotiate a single sum > in lieu of royalties, without any response." Instead, Hyperion stood > by its principles, and recorded without Sawkin's approval. Hyperion > was the one being unreasonable in this case, not Dr. Sawkins. Sawkins was compensated for the preparation of his edition in the usual fashion, by being paid an editing fee. This is a fact that many people defending Sawkins seem to be completely unaware of. SAWKINS GOT PAID FOR HIS EDITING. What he sued for was something beyond that. > >>>The Hyperion decision is a Pyrrhic victory that will ultimately be > >>>a > disaster for recording companies, performing groups and editors. > > Maybe. Maybe not. > > "Marc Perlman imagines that royalties for musicologists could make > some projects more feasible. A company could tell a musicologist that > in exchange for higher royalties, the musicologist will share more of > the risk of the project. The upfront editing fee will be treated as an > advance on royalties, not a payment. . . . Oh, great, so musicologists could end up along with all the other people involved in the project waiting in line for the royalties after all the creative accounting tricks that are used by music publishers to avoid paying royalties. I know of an author of a Norton Critical Score that was published in the 1980s who has not yet received one penny in actual royalties from his work because Norton continues to bill the fees paid for reprinting sections from other works that are part of the structure of Norton Scores (the material at the back). > . . . The risk is moved away from the > company and to the musicologist. . . . Given the history of how record companies have behaved in the past with those who get performance royalties, the exchange of hard money for the promise of royalties seems to me to be no improvement at all, and probably quite the opposite. Of course, Sawkins is receiving both, because he was greedy and wasn't happy with the editing fee that he was paid. I could understand an agreement between two parties to share the risk in the form of paying part of the editing fee out of royalties (with the up- front fee being an advance against those royalties). But that's if BOTH parties agreed to it. Sawkins has used the legal system to have his cake and eat it, too. > . . . Reducing the upfront cost of the > project could in this case lead to more projects being undertaken. Or > perhaps it would leave the recording schedules pretty much the same, > merely changing the ways in which musicologists receive what will > still be a pittance." I have no problem with the concept of anyone making such an agreement with a recording company. What I object to is the idea that recording companies should be required to compensate editors as though they are the composers of the pieces they've edited. That is simply wrong. And the decision was musicicological nonsense in the way in which it arrived at its conclusion. It may be law now, but it's bad law, since the reasoning behind it makes a hash of the subject it is applied to. > I throughly disagree with your view that none of this has importance > for an editor creating a modern PERFORMING edition; and then > publishing it. There's no case that clearly illustrates the thorny > nature of all this. Editing fees are fine. Sawkins received one. An editor may negotiate a fee that is determined in part by sales if the recording company would like to share risk with editor -- I've no objection to that. But reading the law to require that the work that Sawkins did merits performance royalties is wrong because it treats the editing process as equivalent to composition, when it is nothing of the sort. It is far less creative than the process of arranging. Editing means being the slave of the composer's original intentions, if the editing is done according to modern musicological standards. Reconstructing missing parts, while requiring quite a bit of cleverness, is, nonetheless a process of choosing from a severely limited number of choices. If Sawkins was aiming to recover from imperfect sources as much as possible of what de Lalande intended, then he can't possibly be intellectually honest in claiming any significant independent creating input into the result. Either he was restoring de Lalande's intent or he wasn't. If he was, then he is profiting from the work of a dead man. -- David W. Fenton http://dfenton.com David Fenton Associates http://dfenton.com/DFA/ _______________________________________________ Finale mailing list Finale@shsu.edu http://lists.shsu.edu/mailman/listinfo/finale
