Hans Pizka wrote: > > Sorry, Amy, if Scott uses the scores available on the > market (edited by Edmond Leloir - former KaWe or the > other score from Musica Rara) instead of any score from > complete Haydn Works (I do not know it yet), he is > breaching the copyright law, as he is using copyrighted > materal. If he travels to Germany to see the set of > parts from the Oettingen Wallerstein Collection, > writing his own score & making his own piano reduction > from material he prepared himself, well, no objection > at all. But the two scores mentioned above, are protected, > as Leloir & von Pringsheim invested a lot of work to > eliminate writing errors, set better clear phrasings etc. >
There is some overstatement in this, although the law of copyright is complicated and varies somewhat from country to country. A basic point is the distinction between the subjective and the objective aspect of a work: the objective, or "factual," cannot be copyrighted and is available freely to all, but the subjective, or "creative," can be protected as a monopoly of its author. In the particular case, to the extent that Leloir studied and discovered the facts of Haydn's intentions, or discovered and corrected errors, his results cannot be protected by copyright (whether he is right or wrong). However, to the extent that he added something of his own creation, such as a choice of voicing or fingering or phrasing that is his own and not Haydn's, his work can be protected by copyright. The typesetting and the appearance of the printed page can also be protected. Access is a different point; Mr. Pappal said he was unaware of the Leloir transcription and therefore could not have copied it. If, by coincidence, there are some points of similarity between the Leloir transcription and the Pappal transcription, that does not constitute a violation of copyright. (If there are a great many points of similarity, the court is not likely to believe the claim that he never saw the Leloir transcription.) One of the greatest American judges, Learned Hand, put it this way: "Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an 'author'; but if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), aff'd, 309 U.S. 390 (1940). If -- contrary to the facts of Mr. Pappal's case -- the second transcriber has access to the work of the first, he can still make and copyright his own transcription, freely making use of the objective or "factual" information in the first transcription. However, in that case, coincidences in the subjective or "creative" aspects are more likely to be treated as copyright violations by the court. Peter W. Schroth _______________________________________________ post: [EMAIL PROTECTED] unsubscribe or set options at http://music.memphis.edu/mailman/options/horn/archive%40jab.org
