subject:"\[Finale\] Editions and Publishing Rights"

On 17 Feb 2006 at 1:24, Johannes Gebauer wrote:

 On 16.02.2006 David W. Fenton wrote:
  Well, I'm not sure that alone has much utility in drawing the 
  distinction. In the de Lalande with the missing viola part, leaving
  it out is going to sound different from having it in, most obviously
  in the parts for strings alone. But whatever one reconstructs is not
  creative, but implied by all the other available information.
 
 I don't see the distinction. The reconstructed viola part might still
 have been different, no? That means Sawkins solution was unique, and
 depended on him. Doesn't that make it creative?

Unique by one note? Two notes? Three? 

There were two editions of the work with the missing viola part, and 
the Paillard and Sawkins reconstructions overlapped in all but a 
handful of notes. Hyperion alleged that Sawkins plagiarized, but 
there was no reason to do that (seems to me that Hyperion didn't have 
very good musicological advice if they didn't make the argument that 
any musicologist conversant in the repertory involved would likely 
have produced a viola part nearly identical to Sawkins's), as it's 
just a natural result of the highly circumscribed nature of the 
process of reconstructing an inner part in a piece of this nature.

I wouldn't call a part differing by 1 note to be original. And my 
argument all along has been that the definition of original in the 
court decision is where things go wrong. They take the literalistic 
brain-dead approach (which you seem to be adocating with your 
question) that any exercise of judgment constitutes creativity 
and/or originality. The court rejected that reading in its decision 
and required something more than that. They then turned around and 
accepted the 5 or 6 notes in the viola part as sufficient (this is 
another example of the court's heads I win, tails you lose approach 
to logic, seems to me).

Again, we are not talking here about what is necessary to gain 
copyright in an edition (a typograhical arrangement). In that 
context, yes, a handful of alterations are sufficient to create a 
unique edition.

In this case, the question was how much original contribution is 
required to create a new work that is eligible for copyright 
independent from the original work. It seems to me that this is a 
distinction you continue to miss, Johannes, one that would be easier 
to grasp if you'd read the decisions (both of which are quite 
entertaining reading, seems to me).

 Bob Levin reconstructed a Mozart concerto for violin and piano (a few
 years ago). What came out was something that was one of millions of
 possible solutions to the problem. Creative? Of course! But still, in
 it's sense, a reconstruction.

Have you been reading my messages to the list the last few days, 
Johannes? If you had been, you would have read me repeatedly giving 
examples of reconstructive work that would be sufficiently original 
(creative was a word the judges rejected as having no legal 
meaning) to merit copyright as an independent work (rather than as a 
mere typographical arrangement). The distinction here that you 
repeatedly seem to miss is that this case was not about the 
typographical arrangement but about when an edition of a work 
includes sufficient original contributions from the editor to merit 
being treated as a work independent from the original for the 
purposes of determining eligibility for royalties from performers and 
recording companies. 

My understanding of all of this from all the reading I've done is 
that prior to this case, UK law had no such accomodations in it for 
editions at all, which were considered to never able to be 
sufficiently original to justify royalties. This case changed all 
that by defining a standard of originality that had to be met to 
merit the copyright in the edition as a work of music (i.e., that the 
piece of music that the printed edition (which has its own copyright 
as a typographical arrangement) conveys is itself copyrightable 
because it is an independent musical expression), which is what is 
required under UK law to be eligible for the performance/recording 
royalties that Sawkins demanded (in contradiction to the standard 
practice and the interpretation of UK copyright law up to the point 
that Sawkins won his lawsuit).

My position is that there are editions that obviously stand as pieces 
of music independent of the sources they are drawn from (most 
especially when those editions include major reconstructive work from 
incomplete sources). I agree that Sawkins edition as described does 
include some reconstruction. But that reconstructive work is so 
highly circumscribed by the other existing musical material (in both 
the case of the viola part and the figures added to the figured bass) 
that it should not qualify as sufficiently original (in the legal 
sense of the term in the UK, as described in the text of the two 
judgments) to merit independent copyright. Sawkins work is entirely

Re: [Finale] Editions and Publishing Rights

On 16 Feb 2006 at 23:36, Andrew Stiller wrote:

 
 On Feb 16, 2006, at 3:46 PM, David W. Fenton wrote:
 
  In the case of the missing cornet parts, my guess is that it's
  pretty clear that your choices are limited to to 2 or 3 different
  notes within any harmonic context, but the figuration and voicing
  need to be determined with no real information on what they should
  have been.
 
 I think that's overly optimistic. A cornet solo could, within the
 style of the  composer and his period, be  quite elaborate and full of
 non-harmonic tones  of all kinds. . . .

Well, I was assuming accompanimental roles for the cornets, and not 
any solos.

 . . . The guidance from the orchestral
 context in such a situation is really very limited, and the variety of
 credible solutions immense. . . .

If nobody in the rest of the orchestra has the leading part, that 
might imply that the cornet had it at that point. But if there were a 
doubling of a cornet solo by another instrument, that could mask the 
solo role of the cornet, so, yes, you're right -- I was overly 
optimistic, because I was thinking of a particular kind of cornet 
part (from my experience with band music, as copyist and arranger).

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

2006-02-17 Thread Johannes Gebauer


On 17.02.2006 David W. Fenton wrote:

As he should have.

Do you really think that the argument against Sawkins has been an 
argument against royalties for all editions, no matter the degree of 
original work included in them?




So where is the line? Two missing viola parts? Three? All the strings? 
Does an oboe part count more than a viola part? Is a bass line more 
valuable in baroque music than in late clssical? This is precisely the 
problem the court faced.


Johannes
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Re: [Finale] Editions and Publishing Rights

2006-02-17 Thread Johannes Gebauer


On 17.02.2006 David W. Fenton wrote:
Unique by one note? Two notes? Three? 



How many notes make it unique enough? 10? 100?

Johannes
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Re: [Finale] Editions and Publishing Rights

2006-02-17 Thread Johannes Gebauer


On 17.02.2006 David W. Fenton wrote:
In this case, the question was how much original contribution is 
required to create a new work that is eligible for copyright 
independent from the original work. It seems to me that this is a 
distinction you continue to miss, Johannes, one that would be easier 
to grasp if you'd read the decisions (both of which are quite 
entertaining reading, seems to me).




Imo this kind of decision is something a court of law simply cannot 
make. One note of originality has to be enough. If the record company 
doesn't like that they have plenty of other options.


Johannes


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Re: [Finale] Editions and Publishing Rights

On 17 Feb 2006 at 21:14, Johannes Gebauer wrote:

 On 17.02.2006 David W. Fenton wrote:
  I don't see how they could have known better, as they were operating
  under the to-then-standard interpretation of the applicable UK
  copyright law.
 
 I am by no means a lawer, but I believe you do not fully understand
 how European law functions. There are aspects of European law which
 are above national law. There are other aspects where national law has
 to be changed to comply with European standards. And there are aspects
 where national law still stands above European law (when it touches
 constitutional aspects, but I believe the UK doesn't have a
 constitution.)

Well, you're right -- I don't know that much about how European law 
operates. I do know that the UK tries to keep itself somewhat 
separate from the rest of Europe. I also know that the law considered 
in the appeals decision was entirely UK law. Indeed, the decision 
explicitly rejects as a basis for its findings a French decision in 
Sawkins's favor. 

That seems to indicate that it's not just me who thinks that European 
law doesn't apply, but also the judges on the UK appeals court who 
heard the case.

But perhaps they were wrong and you, the non-lawyer who lives outside 
the UK, actually understand the applicable law better than sitting UK 
judges.

 Whatever the case, it is becoming a little boring now.

I've found it quite boring to have to repeatedly reiterate the facts 
of the case, yes.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 17 Feb 2006 at 21:16, Johannes Gebauer wrote:

 On 17.02.2006 David W. Fenton wrote:
  As he should have.
  
  Do you really think that the argument against Sawkins has been an
  argument against royalties for all editions, no matter the degree of
  original work included in them?
 
 So where is the line? . . .

Seeing as how we're talking about music here, the answer is that it 
depends entirely on the context and the facts of the individual case. 
That was, in fact, the way the judges in the decision approached it. 
They had to consider the specifics of the particular edition before 
making their determination, so there is no blanket requirement that 
royalties be paid, only when there is sufficient original 
contribution by the editor to justify it.

 . . . Two missing viola parts? Three? All the strings?
 Does an oboe part count more than a viola part? Is a bass line more
 valuable in baroque music than in late clssical? This is precisely the
 problem the court faced.

I addressed this at length in another post.

-- 
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David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 17 Feb 2006 at 21:17, Johannes Gebauer wrote:

 On 17.02.2006 David W. Fenton wrote:
  Unique by one note? Two notes? Three? 
 
 How many notes make it unique enough? 10? 100?

Uniqueness was not one of the points considered by the judges to be 
relevant to their determination. There were 50-odd changes by Sawkins 
in the piece that they threw out as not having sufficient original 
contributions by Sawkins to merit getting separate copyright.

Again, you're discussing the issue in apparent ignorance of the 
facts, and this makes it quite hard to conduct a reasoned discussion.

-- 
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David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 17 Feb 2006 at 21:21, Johannes Gebauer wrote:

 On 17.02.2006 David W. Fenton wrote:
  In this case, the question was how much original contribution is
  required to create a new work that is eligible for copyright
  independent from the original work. It seems to me that this is a
  distinction you continue to miss, Johannes, one that would be easier
  to grasp if you'd read the decisions (both of which are quite
  entertaining reading, seems to me).
 
 Imo this kind of decision is something a court of law simply cannot
 make. One note of originality has to be enough. If the record company
 doesn't like that they have plenty of other options.

Well, that may be the way *you* see it, but the appeals court in 
Britain did not see it that way.

And I think it's absurd to use one note as the basis for creating an 
independent copyright in the work. If that were the case, I could 
take a composition of yours, change one note and get independent 
copyright on the basis of that one note.

I would agree, though, that a court of law is an improper forum for 
judging this question. That's why certain musical organizations in 
the UK have suggested setting up their own boards for considering and 
mediating these kinds of disputes, composed of people who know music 
but are also experienced in copyright law. That sounds very sensible 
to me -- let the ASCAPs and other such rights-management 
organizations make these determinations as independent tribunals.

Of course, there's a political aspect to this, too, as can be seen in 
the disputes in Hollywood over credit on film scripts (mediated by 
the screenwriters' guild) and producing credits on films (I forget 
who mediates that, but there was an article in the NY Times recently 
about disputes on this subject), but I think it's better than forcing 
these things directly into a trial court where a judge has to make th 
edecision.

Of course, in the present instance, it had to go to court, because 
Sawkins was asking for a change in the UK copyright law. Once that 
change as been made, such disputes could be mediated by a third party 
organization and go to trial only when the parties refuse to accept 
the mediator's decision.

But, again, I reiterate: this is not about copyright in typographical 
arrangements, but about copyright in the musical work conveyed in the 
edition. Ironically, even the typographical arrangement copyright 
doesn't come from just changing one note -- you can't just reprint an 
edition under copyright and add one change to the musical text. So, I 
would think your one-note rule makes even less sense for the area 
of copyright in the work itself.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

2006-02-16 Thread David W. Fenton

On 16 Feb 2006 at 8:13, Johannes Gebauer wrote:

 On 16.02.2006 David W. Fenton wrote:
  Yes, that is what I said. It's sad for the recording side of
  things.
   It's good for the critical edition side of things. Who has got
   more money?
  
  The logic behind your argument escapes me. If the recordings are
  abandoned because of the fact that the record companies would lose
  money if they paid the editors the royalties, then where is the
  extra money going to come from to line the pockets of the editors?
  If no recordings are made, then there's no recording to sell to
  generate the revenue to pay the royalties. No egg, no chicken.
  
 
 With the same argumentation you could also argue that musicians should
 not be paid because this stops concerts from being put on. Very silly,
 if you asked me. Do you also think that concerts should only be given
 as a hobby for no money? Perhaps the same should apply to composers?
 After all, if they didn't ask for any money they might get performed
 more often.

This is an absolutely ludicrous response to my post. I have never 
said that editors should not be paid. I have only said that they 
should not be paid as the creators of the work. That is, they should 
be compensated for the use of their edition (which is copyrighted), 
but not as though they are an author of the work they edited.

I'm not calling for editors to not be paid, or to be paid less. I'm 
simply calling for them to not be paid *more* than they have been in 
the past, especially when it's justified by a claim that amounts to 
stealing the compositional work of dead composers.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights



On Feb 15, 2006, at 5:08 PM, David W. Fenton wrote:


On 15 Feb 2006 at 10:35, Andrew Stiller wrote:


Editions are  prepared all the time for reasons
irrelevant to or even in direct opposition to the composer's intent.
Simplified versions. Cut or excerpted versions. Modernized versions.
Speculative reconstructions. . . .


Except for the latter, these are not musicological editions.


So, for example, Denis Stevens' edition of Monteverdi's 1610 Vespers, 
which omits more than half of the piece under the theory that this 
material was not part of the work as envisioned by Monteverdi, is not a 
musicological edition? An orchestral edition that substitutes tuba for 
serpent on practical grounds, and says so, is not musicological no 
matter what other standards are applied? You may say they are not, but 
if so the world disagrees with you!




The US experience simply does not bear that out. That edited
versions of old music are entitled to performance and mechanical
royalties is long established here (as, e.g., when Hildegarde Press
about 10 years ago successfully sued recording companies that used
its editions of Hildegarde  von Bingen w.o credit or compensation)
and has put no crimp in performance or recording.


For the gazillionth time, Sawkins was paid a fee for the use of his
edition.


If so, forgive me. However I was under the distinct impression that the 
issue was not about use, but about ownership. The balance of your reply 
to me (snipped) seems to confirm that.


Andrew Stiller
Kallisti Music Press
http://home.netcom.com/~kallisti/

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Re: [Finale] Editions and Publishing Rights



On Feb 15, 2006, at 10:27 PM, David W. Fenton wrote:


 If you're
reconstructing 2 parts of a 4-part texture, it's probably
recomposition (unless it's a strictly contrapuntal style where the
possibilities are highly circumscribed and clearly implied by the
remaining two voices).

If, on the other hand, you're supplying a viola part in a work with
choral parts, basso continuo and two violin parts, then the
reasonable possibilities for the viola are pretty narrow, and in that
case, it would be reconstruction.



Just out of curiosity (no ax to grind): I am working on a 19th-c. 
orchl. score that is missing its cornet and tuba parts (they wouldn't 
fit on the page), Aside from a few verbal cues in the MS (such as 
cornet solo or tuba furthers doubling of basses etc.) I have 
nothing to go on but the composer's general style, including the way he 
handles these instruments in other pieces. Is what I am doing a 
reconstruction or a recomposition?


To me, I think the line should be drawn based on whether the new 
material changes the character of the piece as a whole.


The Baroque ensemble Tempesta di Mare has made a name for itself in 
part through its performances and recordings of reconstructed lute 
concertos by Sylvius Leopold Weiss--concertos for which only the lute 
part actually survives. The entire orchestral part had to be recreated. 
The resulting pieces sound very convincing and realistic, and are 
credited to Weiss, but I can't help but thinking, each time I hear one 
of them, that if Handel had done the exact same thing--taken a Weiss 
lute part and added new orchestral accompaniments--that we would not 
hesitate a moment to ascribe the resulting work to Handel, not Weiss. 
Your thoughts?


Andrew Stiller
Kallisti Music Press
http://home.netcom.com/~kallisti/

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Re: [Finale] Editions and Publishing Rights

2006-02-16 Thread Christopher Smith



On Feb 16, 2006, at 3:13 PM, Andrew Stiller wrote:

The Baroque ensemble Tempesta di Mare has made a name for itself in 
part through its performances and recordings of reconstructed lute 
concertos by Sylvius Leopold Weiss--concertos for which only the lute 
part actually survives. The entire orchestral part had to be 
recreated. The resulting pieces sound very convincing and realistic, 
and are credited to Weiss, but I can't help but thinking, each time I 
hear one of them, that if Handel had done the exact same thing--taken 
a Weiss lute part and added new orchestral accompaniments--that we 
would not hesitate a moment to ascribe the resulting work to Handel, 
not Weiss. Your thoughts?




You are right in pointing out an important modern distinction. If Bach 
had written his Jesu Joy Of Man's Desiring today, he would have been 
credited as arranged by... and been eligible for no royalties at all 
unless the tune (the part with the words) was in the public domain. 
Everything he wrote - all the most interesting parts that make the 
piece good - are just the arrangement, by modern standards.


I can only shrug and suggest that the world is not the same place any 
more. Women can vote, slavery is frowned upon, we have freedom of 
religion (such as it is), and citizens are not routinely imprisoned or 
killed for criticising the government - at least not as much as before. 
And of course, a fine musician can make an unforgettable contribution 
to music and get no proper credit or compensation beyond journeyman's 
fees.


Oh well.

Christopher

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Re: [Finale] Editions and Publishing Rights

2006-02-16 Thread Johannes Gebauer


On 16.02.2006 David W. Fenton wrote:
Well, I'm not sure that alone has much utility in drawing the 
distinction. In the de Lalande with the missing viola part, leaving 
it out is going to sound different from having it in, most obviously 
in the parts for strings alone. But whatever one reconstructs is not 
creative, but implied by all the other available information.




I don't see the distinction. The reconstructed viola part might still 
have been different, no? That means Sawkins solution was unique, and 
depended on him. Doesn't that make it creative?


Bob Levin reconstructed a Mozart concerto for violin and piano (a few 
years ago). What came out was something that was one of millions of 
possible solutions to the problem. Creative? Of course! But still, in 
it's sense, a reconstruction.


Johannes
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Re: [Finale] Editions and Publishing Rights

2006-02-16 Thread Johannes Gebauer


On 16.02.2006 David W. Fenton wrote:
I'm not calling for editors to not be paid, or to be paid less. I'm 
simply calling for them to not be paid *more* than they have been in 
the past, especially when it's justified by a claim that amounts to 
stealing the compositional work of dead composers.




And all I said was the law grants royalties, and Hyperion should have 
known that. Whether you like it or not, Hyperion played with the fire 
and got badly burned. I repeat what I said in my very first post on the 
subject: I am not taking sides on this whole issue (especially as I am 
actually part of all sides, musician, editor, and record company), but I 
do see this decision as being in line with the law, and actually not at 
all surprising. I totally agree that the amount granted by the court is 
well over the top, but Hyperion simply should have known better. I see 
absolutely no reason for them to consider themselves as the victim in 
this case. Then, I don't know many of the details, but so far I have not 
heard a single argument in this whole discussion that would make me 
believe that the court ruling was wrong, or out of line. And I don't 
actually see any impact (other than for Hyperion).


Enough said.
Johannes
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Re: [Finale] Editions and Publishing Rights

2006-02-16 Thread Johannes Gebauer


On 16.02.2006 Andrew Stiller wrote:

The Baroque ensemble Tempesta di Mare has made a name for itself in part 
through its performances and recordings of reconstructed lute concertos by 
Sylvius Leopold Weiss--concertos for which only the lute part actually 
survives. The entire orchestral part had to be recreated. The resulting pieces 
sound very convincing and realistic, and are credited to Weiss, but I can't 
help but thinking, each time I hear one of them, that if Handel had done the 
exact same thing--taken a Weiss lute part and added new orchestral 
accompaniments--that we would not hesitate a moment to ascribe the resulting 
work to Handel, not Weiss. Your thoughts?


Incidentally, the extremely popular disc of Heinichen concerti with 
Musica Antiqua Cologne is the exact same situation (for the same 
reasons), where Reinhard Goebel reconstructed the orchestral parts, 
and some argue that it is more in the style of Reinhard Goebel than in 
the style of Heinichen. I am sure Goebel got a good royalty compensation 
for it...;-)


Johannes
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Re: [Finale] Editions and Publishing Rights



On Feb 16, 2006, at 3:30 PM, Christopher Smith wrote:

 If Bach had written his Jesu Joy Of Man's Desiring today, he would 
have been credited as arranged by... and been eligible for no 
royalties at all unless the tune (the part with the words) was in the 
public domain.


 Everything he wrote - all the most interesting parts that make the 
piece good - are just the arrangement, by modern standards.


Not really true. He would have had to obtain permission from the 
copyright owner, but could then have copyrighted his own contribution 
as an original work. Form PA has a  place for the creator to designate 
exactly what aspect of the work is claimed as copyrightable, and 
another where original and derived portions of the work are clearly 
distinguished. Berio's _Sinfonia_ is but one example of a work full of 
qotations of copyrighted material, but considered, both legally and 
artistically, to be a fully original composition in its own right. 
Similarly, any composer's  Variations on [X] is not deemed an 
arrangement, whether [X] be copyrighted or not.


Andrew Stiller
Kallisti Music Press
http://home.netcom.com/~kallisti/

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Re: [Finale] Editions and Publishing Rights



On Feb 16, 2006, at 3:46 PM, David W. Fenton wrote:


In the case of the missing cornet parts, my guess is that it's pretty
clear that your choices are limited to to 2 or 3 different notes
within any harmonic context, but the figuration and voicing need to
be determined with no real information on what they should have been.



I think that's overly optimistic. A cornet solo could, within the 
style of the  composer and his period, be  quite elaborate and full of 
non-harmonic tones  of all kinds. The guidance from the orchestral 
context in such a situation is really very limited, and the variety of 
credible solutions immense. The  tuba part is much less problematic, 
because this composer always used the tuba very sparingly (his main 
brass bass was the ophicleide).




There's also the question of whether the parts were left out of the
score because of no room, or because the work was originally intended
not to include them.


In this case, the composer helpfully says as much (no room) at the head 
of the score, and refers the reader/conductor to the accompanying 
separate parts--which are now missing.



Andrew Stiller
Kallisti Music Press
http://home.netcom.com/~kallisti/

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Re: [Finale] Editions and Publishing Rights

2006-02-15 Thread dhbailey


Kim Patrick Clow wrote:

[snip]
I am just curious why is it the profit model is ok for publishers, or 
orchestras,
or record labels, or video productions, or the record chains, that make 
profits

from music that's in the public domain is somehow OK. But when an editor
makes his case in court (and wins), he's seen as the Antichrist for 
doing it?



[snip]

Not by me -- if some people can make money from the recording, then 
others who had a hand in making the music available for the recording 
should also be able to make money from it.


After all, they didn't have to use his edition, did they?  They could 
have hired some work-for-hire scholar to prepare the music for recording 
in an edition that Hyperion then would control the rights to.






--
David H. Bailey
[EMAIL PROTECTED]
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Re: [Finale] Editions and Publishing Rights


On 15.02.2006 David W. Fenton wrote:
Sawkins didn't deserve performance royalties. No musicologist acting 
as an editor as Sawkins was deserves performance royalties.



David,

that may perhaps be your personal opinion, but it is certainly not what 
the law is in Europe.


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Re: [Finale] Editions and Publishing Rights

2006-02-15 Thread John Howell


At 8:15 AM +0100 2/15/06, Johannes Gebauer wrote:


The point is that a critical edition can receive royalties.


Actually that isn't quite true under U.S. law, and I suspect (but 
certainly do not know) that the same might hold true for EU law.


A *copyrighted* edition can receive royalties.  It does not have to 
be critical (i.e. a complete scholarly study).  It can simply be a 
performing edition.  (That is happening yearly in the U.S. as the 
marches and other works by John Phillip Sousa come into the public 
domain, and some idiot obtained a new copyright on Gershwin's 
Rhapsody in Blue simply by putting back in the measures that 
Gershwin himself had cut out!  I can't wait for the fights to break 
out over the new edition of Porgy  Bess that incorporates the 
changes Gershwin made AFTER the score had been published.)


The point is that in order to earn a new copyright, the editorial 
work must be sufficient in and of itself to be considered 
copyrightable intellectual property, since once in the public domain 
the original music may never be recopyrighted (at least under U.S. 
law).  In the Sawkins case, that seems to be the point of contention: 
what did he do that constitutes copyrightable new intellectual 
property.


John


--
John  Susie Howell
Virginia Tech Department of Music
Blacksburg, Virginia, U.S.A 24061-0240
Vox (540) 231-8411  Fax (540) 231-5034
(mailto:[EMAIL PROTECTED])
http://www.music.vt.edu/faculty/howell/howell.html
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Re: [Finale] Editions and Publishing Rights

2006-02-15 Thread Andrew Stiller



On Feb 14, 2006, at 3:03 PM, David W. Fenton wrote:


The musicological endeavor by definition is *not* compositional. The
editor of an edition is BY DEFINITION a slave to the original
composer's intentions.


As a composer, I would certainly like it if this were so, but it very 
plainly is not. Editions are  prepared all the time for reasons 
irrelevant to or even in direct opposition to the composer's intent. 
Simplified versions. Cut or excerpted versions. Modernized versions. 
Speculative reconstructions. I could go on and on. The line between 
editing and arrangement is an extremely blurry one, and in US copyright 
law it is not and as far as I know never has been drawn.



Finding that this act is worthy of performance royalties will have
only one result: fewer new editions will be prepared for recordings,
or the editions will be prepared by performers instead of scholars.
Or, the recordings won't happen at all if a performance royalty must
be paid to the editor.

The Hyperion decision is a Pyrrhic victory that will ultimately be a
disaster for recording companies, performing groups and editors.



The US experience simply does not bear that out. That edited versions 
of old music are entitled to performance and mechanical royalties is 
long established here (as, e.g., when Hildegarde Press about 10 years 
ago successfully sued recording companies that used its editions of 
Hildegarde  von Bingen w.o credit or compensation) and has put no crimp 
in performance or recording.


The notion that composers and scholars should be good socialists while  
everybody else has  their hand out is deeply ingrained in the classical 
community--but that don't make it right.


Andrew Stiller
Kallisti Music Press
http://home.netcom.com/~kallisti/

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Re: [Finale] Editions and Publishing Rights

On 15.02.2006 John Howell wrote:

The point is that a critical edition can receive royalties.

Actually that isn't quite true under U.S. law, and I suspect (but certainly do
not know) that the same might hold true for EU law.

I thought we had already agreed that European law is not the same as US
law in this respect.

A *copyrighted* edition can receive royalties. It does not have to be critical (i.e. a complete scholarly
study). It can simply be a performing edition. (That is happening yearly in the U.S. as the marches and other
works by John Phillip Sousa come into the public domain, and some idiot obtained a new copyright on Gershwin's
Rhapsody in Blue simply by putting back in the measures that Gershwin himself had cut out! I can't
wait for the fights to break out over the new edition of Porgy Bess that
incorporates the changes Gershwin made AFTER the score had been published.)

The situation is definitely more complicated than that in Germany. A
performing edition can only receive royalties, if it is more than just
fingerings, ie if it qualifies as an arrangement of some sort, or if it
is the very first edition of the work (including any print in the pieces
history, even a printed edition from 1500, or in special cases a widely
available manuscript will count as the first edition). A critical
edition _can_ receive royalties anyway, as there are _special_
regulations. However, in practice I believe this is rarely the case,
because for most pieces where the critical edition qualification has any
impact there exist older editions, which are not even under normal
copyright any longer.

Why do you think Gardiner made his own performing edition for the Bach
cantatas? I am convinced the reason was _not_ that NBA was not accurate
enough (this may perhaps be the case for some cantatas, but is complete
nonsense for others), but that the recording company would have had to
pay a substancial amount in royalties to NBA. It worked out cheaper to
get some cheap musicologists hired and prepare a performing edition.
And for the uninformed it added some marketing hype, as well. Gardiner
is such a responsible scholar, he even had his own edition prepared for
the cantatas, correcting all the mistakes in the existing editions.
Bach like he has never been performed before. Not.

I have taken part in many recordings where either we had to play from
ancient, out-of-copyright parts, or where a performing edition was
especially prepared. All because of royalties to the publishers/editors.

It is also true that sometimes recordings are not being made, when the
company finds out how much the royalties would be to the editor. I
certainly know of one particular instance where this happened (in the
UK, btw), and it is a sad case. But such is the law.

Johannes
--
http://www.musikmanufaktur.com
http://www.camerata-berolinensis.de

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Re: [Finale] Editions and Publishing Rights

2006-02-15 Thread Kim Patrick Clow

Ton Koopman when he was performing the Mozart Symphonies (complete cycle that alas was not ever recorded on CD or DVD) in Japan many years ago, mentioned in the notes, that he was unable to order copies of the NMA. They had to resort to finding copies in libaries and Xeroxing them. I wonder if he still paid the fees to Barenreiter? ;)

On 2/15/06, Johannes Gebauer [EMAIL PROTECTED] wrote:
On 15.02.2006 John Howell wrote: The point is that a critical edition can receive royalties.
Actually that isn't quite true under U.S. law, and I suspect (but certainly do not know) that the same might hold true for EU law.I thought we had already agreed that European law is not the same as US
law in this respect. A *copyrighted* edition can receive royalties.It does not have to be critical (i.e. a complete scholarly study).It can simply be a performing edition.(That is happening yearly in the
U.S. as the marches and other works by John Phillip Sousa come into the public domain, and some idiot obtained a new copyright on Gershwin's Rhapsody in Blue simply by putting back in the measures that Gershwin himself had cut out!I can't wait for the fights to break out over the new edition of Porgy Bess that incorporates the changes Gershwin made AFTER the score had been published.)
The situation is definitely more complicated than that in Germany. Aperforming edition can only receive royalties, if it is more than justfingerings, ie if it qualifies as an arrangement of some sort, or if it
is the very first edition of the work (including any print in the pieceshistory, even a printed edition from 1500, or in special cases a widelyavailable manuscript will count as the first edition). A critical
edition _can_ receive royalties anyway, as there are _special_regulations. However, in practice I believe this is rarely the case,because for most pieces where the critical edition qualification has anyimpact there exist older editions, which are not even under normal
copyright any longer.Why do you think Gardiner made his own performing edition for the Bachcantatas? I am convinced the reason was _not_ that NBA was not accurateenough (this may perhaps be the case for some cantatas, but is complete
nonsense for others), but that the recording company would have had topay a substancial amount in royalties to NBA. It worked out cheaper toget some cheap musicologists hired and prepare a performing edition.
And for the uninformed it added some marketing hype, as well. Gardineris such a responsible scholar, he even had his own edition prepared forthe cantatas, correcting all the mistakes in the existing editions.
Bach like he has never been performed before. Not.I have taken part in many recordings where either we had to play fromancient, out-of-copyright parts, or where a performing edition wasespecially prepared. All because of royalties to the publishers/editors.
It is also true that sometimes recordings are not being made, when thecompany finds out how much the royalties would be to the editor. Icertainly know of one particular instance where this happened (in the
UK, btw), and it is a sad case. But such is the law.Johannes--http://www.musikmanufaktur.comhttp://www.camerata-berolinensis.de
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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 8:15, Johannes Gebauer wrote:

 On 15.02.2006 David W. Fenton wrote:
  The issue of published critical editions is not involved --
  Sawkins made a private edition for the use of the performing group
  that Hyperion was recording.
 
 I really am not an expert on the law side of all this, but in which
 way is Sawkins edition so clearly not a critical one? . . .

I expect that it was basically a critical edition. The distinction I
was trying to make was between an edition prepared for an individual
and an edition published in a large-scale critical edition, like the
NBA or NMA, for instance. The cost basis for these productions is
completely different, so I would expect the fees involved for using
the editions to be completely different.

 . . . I don't think
 the law differentiates between private or public in this matter. And
 from that point of view the court decision may be in line with
 European law, and could have been similar in any other European
 country.

Sawkins was compensated for the use of his printed edition by being
paid an editing fee.

 The point is that a critical edition can receive royalties. A one
 off fee may not be enough. In that sense Sawkins may only have sued
 them for something which he is indeed guaranteed by law, and which
 he would have been guaranteed by law in any other EU member state.

I think it's quite obviously the case that what he was asking for was 
*not* guaranteed him by law. If it had been then there would have 
been no point in Hyperion's disputing it. My understand is that the 
judgment in this case has *changed* the law in this regard, by re- 
interpreting it to include the kind of work Sawkins did in the group 
of people who are entitled to performance royalties.  

 For those interested and reading German, here is the web page with
 the relevant information:
 
 http://www.vg-musikedition.de/
 
 They also keep a list of music, for which they deal with perfomance
 rights. Interestingly, NBA does not seem to be part of it (perhaps
 they simply haven't bothered?). But the Beethoven complete edition,
 Haydn complete edition etc.

Performance rights are not the same thing as performance royalties. 
You might pay a flat fee for the rights to record an edition, but my 
understanding is that performance royalties on recordings are paid 
proportional to the number of copies sold. My understanding was the 
the editing fee paid to Sawkins entitled Hyperion to record using his 
edition, and that Sawkins was asking for something more than the 
usual edition hire fee.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 8:19, Johannes Gebauer wrote:

 On 15.02.2006 David W. Fenton wrote:
  2. the legal reasoning behind the decision is specious. Sawkins
  cannot be both a musicological editor and a co-composer of the
  works, 
 
 Of course he can: I am working on a piece where the middle parts are
 missing. They need to be recomposed. (Not by me though, but by the
 editor).

Recomposed or reconstructed?

Sawkins constructed one viola part in one piece, and supplied figures
to an incompletely figured bass in another case. He also supplied
corrections of erroneous notes.

Reconstructing multiple missing parts does, in fact, seem to me like
recomposing.

But reconstructing a single inner part and supplying figures for a 
bass line seem to me to not be composing at all, because the choices 
are very highly circumscribed, and in the case of the figured bass, 
not in any way creative (you need only look at the harmonies in the 
other parts to decide the exact figures, and very frequently, missing 
figures were understood in context without needing to be figured at 
all; adding figures to the bass line is no more composing than 
adding roman numerals on a harmonic analysis exercise for a  theory 
class). The case even considered a different edition of the piece 
with the reconstructed viola part and observed that the two 
reconstructed parts were identical in almost all respects. But rather 
than concluding the obvious (that this was natural, since both 
editors were acting in service of de Lalande's original inspiration), 
the judge instead took the very few differences between the two 
reconstructed parts as evidence of compositional creativity and 
declared that the half dozen or so different notes entitled Sawkins 
to be considered as de facto co-composer of the work.  

If the editor's goal is to reconstruct the composer's original, how
can the editor be anything but the slave of the original composer?

The case of reconstructing several missing parts is quite different,
though, especially in Baroque music where the outer voices might be
missing. 

With a viola part in an orchestral and choral work with continuo,
there really isn't any composing going on at all, seems to me.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 11:59, Johannes Gebauer wrote:

 On 15.02.2006 David W. Fenton wrote:
  Sawkins didn't deserve performance royalties. No musicologist
  acting as an editor as Sawkins was deserves performance royalties.
 
 that may perhaps be your personal opinion, but it is certainly not
 what the law is in Europe.

Perhaps I'm using the wrong term. 

Sawkins was paid a fee for the use of his edition.

What he sued for was royalties form the recording based on the 
assertion that the original contributions he made in his edition were
similar to those of a composer, who would automatically receive
royalties from the recordings.

This is quite different.

Hyperion was not trying to cheat Sawkins of compensation for his work
or for the use of his edition -- they paid him for that.

Sawkins wanted more than that.

And, he got it -- unfortunately in my opinion.

I don't know the exact magnitude of the royalty he demanded, but it 
means that Hyperion has to sell more copies of this recording in 
order to break even, or they have to pay less to the other parties 
involved in it.  

One of the incentives for recording early music is that the music is 
public domain and that one doesn't have to pay for rights or pay 
royalties to the composer. One may pay fees to the owners of the 
editions used, but that's not the same thing as the kinds of fees 
that non-public domain projects require.  

This decision basically takes all such editions out of the public
domain, for purposes of recording royalties, and adds a cost to the
business model of recording companies that put out lots of early
music. The result will be either more expensive recordings or fewer
recordings, or the elimination of anything unusual from the catalogs
of these labels that do so much to record early music.

And it's based on a musicologically fraudulent claim -- Sawkins was
not the composer. All his actions in editing the work were in slavish
service of de Lalande's original intentions.

In short, Sawkins is collecting de Lalande's royalties.

And that's just WRONG.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 8:25, Johannes Gebauer wrote:

 On 15.02.2006 David W. Fenton wrote:
  Sawkins has broken the code of scholarship, in my estimation. He's
  transgressed the ground rules of the musical economy. He may have
  badly broken the system in doing so -- a valuable record label may
  go under entirely because of his actions. Others may have to scale
  back their production as a result of Hyperion's failed defense of
  the present system.
 
 What you are saying is, the record companies can make lots of money,

What evidence do you have that record companies like Hyperion that 
record early music are making lots of money? I strongly doubt it -- 
they don't sell enough recordings to be rolling in dough. Hyperion 
has 12 employees (or had them at the time the appeals court found in 
Sawkins's favor) -- that doesn't exactly sound like a huge rich media 
company to me. It sounds like a small business, one that we know was 
operating on relatively small margins, margins that may not be large 
enough to compensate the editors with performance royalties.  

 partly from your work as musicologist, but musicologists (that
 includes me) have to do that work for nothing. . . .

How many times does this have to be repeated? Sawkins was PAID a fee
for his EDITION. It may not have been a very big fee, but he wasn't
providing his edition for nothing -- he was compensated for it.

 . . . In my opinion that's
 ridiculous. In fact, the more I think about it the more I think that
 Sawkins has a point.

Your argument here makes sense only if Hyperion had no intention of 
paying Sawkins anything at all. Sawkins had already been paid his 
editing fee (my memory is that it was £1,300 or so, clearly not a 
very high hourly rate, but still probably a decent portion of the 
recording project's budget) for his work.  

The choice for Sawkins was not between having his work used for no
compensation and suing, the choice was between having his work used
for an agreed-upon editing fee and suing for more money than the
original agreed-upon fee.

 It is not as though the money he was asking for came from his
 publisher. So your point about if you asked for more money it
 wouldn't get published is completely irrelevant. Hyperion obviously
 needed Sawkins work to do the recording. . . .

I am very annoyed when people engage in discussions like this without
having acquainted themselves with the facts. Sawkins was compensated
for his edition with an editing fee. Sawkins asked for something
beyond the usual and customary fee -- he asked for performance
royalties on the grounds that his editing constituted a contribution
to the work that was substantially original. His contributions were
*not* original at all -- they were completely circumscribed in almost
all details by the framework of de Lalande's composition.

 . . . They should then keep to the law in
 compensating him. . . .

They did.

Sawkins sued for something to which the law did *not* entitle him, as 
it had been previously interpreted. The decision that was handed down 
has changed the interpretation of that law so that now editors get 
editing fees *and* performance royalties (though it's not clear to me 
if this means that all editors can now demand performance royalties, 
or if it only applies to editors who've reconstructed or recomposed 
parts of the work; I actually don't have a problem with a case of 
real recomposing, where there is not enough of the original work in 
the sources to clearly circumscribe the reconstruction of the lost 
part; I would certainly allow someone who finished the Mozart Requiem 
to get performance royalties).  

 . . . If that includes royalties, . . .

Before this lawsuit, it did not.

. . . then I am all for it,
 for the benefit of the editor, because otherwise the editor will
 always be the greatest loser in the chain of music publishing.

Does it change your mind to know the *fact* that Sawkins *was* 
actually compensated for the use of his edition, before the lawsuite
was even filed?

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/


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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 10:32, John Howell wrote:

 The point is that in order to earn a new copyright, the editorial
 work must be sufficient in and of itself to be considered
 copyrightable intellectual property, since once in the public domain
 the original music may never be recopyrighted (at least under U.S.
 law).  In the Sawkins case, that seems to be the point of
 contention: what did he do that constitutes copyrightable new
 intellectual property.

No, that issue is completely orthogonal to the Sawkins/Hyperion 
dispute.

No one disputed Sawkins copyright in his edition. Hyperion paid him 
an editing fee for the use of his edition.  

The dispute is whether the edition he created constitutes the 
equivalent of a newly composed work from the standpoint of whether or
not the editor should be paid recording royalties.

For instance, it seems clear to me that someone who turns his hand to
writing a new completion Mozart's Requiem has a clear claim to co-
authorship, and recording and performance royalties. Likewise with a
completion of Mahler's 10th.

But Sawkins's contributions to his editions of de Lalande were orders 
of magnitude less significant than either of those cases. He made no 
choices about instrumentation, no choices about voicing, he added no 
new material nor new measures to the work. All he did was reconstruct 
an inner part (viola) in one piece and supply figures in the figured 
bass where there were none in the original (and there probably didn't 
need to be, but even if there did, there's nothing creative in 
looking at the string and voice parts and deciding what figures 
belong in the figured bass) and in correcting certain obvious 
erroneous notes. He also collated readings from multiple sources into 
his performing edition. He also realized the figured bass, but since 
the organist for the recording used his own realization and not 
Sawkins's, this was not found by the judge to qualify for royalties.  


These activities of Sawkins are the bread and butter of the editor of
critical editions. While it takes a certain level of cleverness and
knowledge to do these things well, and certainly has its creative
aspects, the results are not original contributions to the work, but
simply reconstructions of what was in the original, imperfect 
sources.

And he was already compensated for making his edition, which is more
than can be said for an awful lot of editors.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 10:35, Andrew Stiller wrote:

 On Feb 14, 2006, at 3:03 PM, David W. Fenton wrote:
 
  The musicological endeavor by definition is *not* compositional.
  The editor of an edition is BY DEFINITION a slave to the original
  composer's intentions.
 
 As a composer, I would certainly like it if this were so, but it
 very plainly is not. Editions are  prepared all the time for reasons
 irrelevant to or even in direct opposition to the composer's intent.
 Simplified versions. Cut or excerpted versions. Modernized versions.
 Speculative reconstructions. . . .

Except for the latter, these are not musicological editions.

And the latter, as in the case of, say, a reconstruction of Mahler's
10th, should be deserving of the recording royalties, in my opinion.

But what Sawkins was doing was the purely musicological type of 
edition where you're trying to reconstruct the best text from 
imperfect sources, in an effort to recover the original intention of
the composer.

 . . . I could go on and on. The line between
 editing and arrangement is an extremely blurry one, and in US
 copyright law it is not and as far as I know never has been drawn.

It may be as a general issue. But in the case of Sawkins's editions, 
as outlined in detail in the judgment from the original case (I can't 
find the appeal decision), it's quite clear that Sawkins was not 
doing anything creative or original at all.  

  Finding that this act is worthy of performance royalties will have
  only one result: fewer new editions will be prepared for
  recordings, or the editions will be prepared by performers instead
  of scholars. Or, the recordings won't happen at all if a
  performance royalty must be paid to the editor.
 
  The Hyperion decision is a Pyrrhic victory that will ultimately be
  a disaster for recording companies, performing groups and editors.
 
 The US experience simply does not bear that out. That edited
 versions of old music are entitled to performance and mechanical
 royalties is long established here (as, e.g., when Hildegarde Press
 about 10 years ago successfully sued recording companies that used
 its editions of Hildegarde  von Bingen w.o credit or compensation)
 and has put no crimp in performance or recording.

For the gazillionth time, Sawkins was paid a fee for the use of his
edition.

 The notion that composers and scholars should be good socialists
 while
  everybody else has  their hand out is deeply ingrained in the
 classical community--but that don't make it right.

He was compensated for his editorial work in an amount that was 
within the realm of the customary and usual fees for use of an 
edition (indeed, I'd say he was fairly well compensated in comparison
to a lot of editors who never get one red cent).

The issue here is not about copyright in his edition, or performance
rights for his edition.

It's whether or not the construction of the edition included 
sufficient original material to justify paying him royalties on the
recording. His work in editing was *not* original -- it was almost
entirely circumscribed by the existing materials composed by de
Lalande.

If de Lalande were alive, he'd deserve the royalties that Sawkins is 
getting. That's the crucial difference that it seems to me most of 
you who are commenting in this thread are completely missing -- that 
this is not about Sawkins edition, but about the concept of 
authorship and how its defined as related to the payment of recording 
royalties.  

Sawkins has gotten himself a judgment that de facto declares him co-
composer of de Lalande's works. While I can conceive of musicological
reconstructive work that would merit that determination, the work
described in the judicial decision clearly doesn't come close to
meriting that at all.

Read the decision and decide for yourself whether or not the judge's
reasoning is musicologically specious or not:

http://www.hmcourts-service.gov.uk/judgmentsfiles/j2636/sawkins-v-
hyperion.htm

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 17:14, Johannes Gebauer wrote:

 It is also true that sometimes recordings are not being made, when
 the company finds out how much the royalties would be to the editor.
 I certainly know of one particular instance where this happened (in
 the UK, btw), and it is a sad case. But such is the law.

Sawkins as paid this fee by Hyperion.

But he was asking to be paid more still for his work.

Now, if you know that projects are not being recording because of
editing fees, don't you think that adding in performance royalties to
editors is going to cause even more projects to be abandoned?

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights


On 15.02.2006 David W. Fenton wrote:
One of the incentives for recording early music is that the music is 
public domain and that one doesn't have to pay for rights or pay 
royalties to the composer. One may pay fees to the owners of the 
editions used, but that's not the same thing as the kinds of fees 
that non-public domain projects require.  



In Europe the law does actually guarantee royalties to editors of, in 
particular, critical editions. It makes no difference whether the music 
is in the public domain, since what is to be compensated is not the 
composition itself, but the work which the editor invested in it. I 
realize that you think this work should be done as a sort of social 
donation, but personally I sympathize with the editors.


If the recording label doesn't want to pay royalties they can always go 
and find the original print or ms themselves. They may still get into 
trouble if no printed edition other than the one which demands royalties 
exists, since it is almost 100% sure that the publisher (or even the 
individual) holds the publication license, which also grants royalties, 
and can even prevent recordings or performances. This is actually a 
great thing for us performers, because when we find a previously 
unpublished piece of music, we can secure the performance and 
publication rights for us, and take our time doing the work without 
fearing that someone else might beat us at it. This has just recently 
been relevant again, with the recently discovered, previously unknown, 
aria by Bach. You cannot stage a performance or recording of this piece 
at this time - at least in Europe, because the library, who owns the 
publication and performance rights for the next few years, has decided 
that Gardiner will record it (? at least if I remember correctly).


Imagine you find Beethoven's 10th symphony. You want to bring out the 
first edition of it, conduct the first performance, and make the first 
CD. It's your lottery tickey. But it requires some investment and time. 
Without protection someone with more resources will undoubtedly beat you 
at it. Leaving you nothing. Under German (and I assume European law) you 
can get protection by securing the rights for, I believe, 2 or 3 years.



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Re: [Finale] Editions and Publishing Rights


On 15.02.2006 David W. Fenton wrote:

It is also true that sometimes recordings are not being made, when
 the company finds out how much the royalties would be to the editor.
 I certainly know of one particular instance where this happened (in
 the UK, btw), and it is a sad case. But such is the law.


Sawkins as paid this fee by Hyperion.


Yes, a fee, but not the royalties. There is a difference.


But he was asking to be paid more still for his work.

Now, if you know that projects are not being recording because of
editing fees, don't you think that adding in performance royalties to
editors is going to cause even more projects to be abandoned?



Yes, that is what I said. It's sad for the recording side of things. 
It's good for the critical edition side of things. Who has got more money?


Actually, the recording side of things it hardly going to suffer, since 
there are so many loopholes to take. All of which Hyperion obviously 
missed. But it does mean that if someone really does find Beethoven's 
10th symphony, and publishes it, the labels recording it will have to 
pay the editor, too, and that, imo, is a very good thing.


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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 23:21, Johannes Gebauer wrote:

 On 15.02.2006 David W. Fenton wrote:
  Of course he can: I am working on a piece where the middle parts
  are
   missing. They need to be recomposed. (Not by me though, but by
   the editor).
  
  Recomposed or reconstructed?
 
 Well, in this case, what is the difference? Since it is not there,
 there isn't much you can reconstruct. All you can do is guess what it
 looked like and recompose it.

It depends entirely on how much you have to go on. If you're 
reconstructing 2 parts of a 4-part texture, it's probably 
recomposition (unless it's a strictly contrapuntal style where the 
possibilities are highly circumscribed and clearly implied by the 
remaining two voices).

If, on the other hand, you're supplying a viola part in a work with 
choral parts, basso continuo and two violin parts, then the 
reasonable possibilities for the viola are pretty narrow, and in that 
case, it would be reconstruction.

My viol consort spent some time recently playing a 4-part piece with 
a reconstructed top part, but it was imitative and in a strict style 
contrapuntally, so my guess is that the added top part was probably 
80% accurate or better (in terms of recreating what the original 
was). That would probably fall somewhere in between Sawkins's 
reconstructed viola part and the recomposed 2 parts of the 4-part 
piece.

It also depends on which parts are missing. Inner parts are going to 
be more limited in the possibilities than the outer parts. And it 
also depends on how much doubling there is and what's typical of the 
style of the period and of the particular composer.

I'm not at all discounting the possibility that an editor would 
contribute original material sufficient to reasonably assert co-
authorship. I'm only arguing that in the Sawkins case, it wasn't even 
close, and that the evidence presented to the judge made this pretty 
clear to anyone who understands the process.

It was obviously not clear to the judge, which is the criticism of 
the original decision that I've registered all along, that the final 
decision makes a hash of the editing process as practiced by 
musicologists, and as practiced in this case by Sawkins himself.

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Re: [Finale] Editions and Publishing Rights

On 15 Feb 2006 at 23:40, Johannes Gebauer wrote:

 On 15.02.2006 David W. Fenton wrote:
  One of the incentives for recording early music is that the music is
  public domain and that one doesn't have to pay for rights or pay
  royalties to the composer. One may pay fees to the owners of the
  editions used, but that's not the same thing as the kinds of fees
  that non-public domain projects require.  
 
 In Europe the law does actually guarantee royalties to editors of, in
 particular, critical editions. . . .

How many times must I post that this issue is irrelevant to the 
Hyperion decision? Sawkins was paid a fee for use of his edition in 
the recording. The lawsuit was about royalties, not about the 
customary fees paid for the use of editions in performance and in 
recordings.

 . . . It makes no difference whether the
 music is in the public domain, since what is to be compensated is not
 the composition itself, but the work which the editor invested in it.
 I realize that you think this work should be done as a sort of social
 donation, but personally I sympathize with the editors.

No, I don't think anything of the sort, and I've said repeatedly that 
I don't believe that. Editors should be compensated for their work by 
being paid editorial fees.

Sawkins received those fees.

Editors should not be entitled to the kinds of recording or 
performance royalties that are reserved for the authors of the 
performed music. *That* is what the Sawkins lawsuit was about, a 
claim on royalties that editors have historically not been paid.

 If the recording label doesn't want to pay royalties . . .

Keep in mind that hire fees for an edition and editing fees are not 
the same as royalties, which are paid on the volume of sales.

 . . . they can always
 go and find the original print or ms themselves. They may still get
 into trouble if no printed edition other than the one which demands
 royalties exists, since it is almost 100% sure that the publisher (or
 even the individual) holds the publication license, which also grants
 royalties, and can even prevent recordings or performances. . . .

In this case, there was an existing edition of at least some of the 
works that Sawkins edited. If I'm remembering correctly, the 
performers decided that the existing edition was unsatisfactory and 
specifically asked Sawkins to re-edit the music (if I'm remembering 
correctly, the existing edition did not account for all the avaliable 
sources). Sawkins was paid a fee for the use of this edition that 
he'd prepared at the request of the performers. 

 . . . This is
 actually a great thing for us performers, because when we find a
 previously unpublished piece of music, we can secure the performance
 and publication rights for us, and take our time doing the work
 without fearing that someone else might beat us at it. This has just
 recently been relevant again, with the recently discovered, previously
 unknown, aria by Bach. You cannot stage a performance or recording of
 this piece at this time - at least in Europe, because the library, who
 owns the publication and performance rights for the next few years,
 has decided that Gardiner will record it (? at least if I remember
 correctly).

Owning copyright on an edition does give you the right to not allow 
just anyone to have a copy. If the original sources are not available 
for others to create their own editions, yes, that means that the 
work is controlled by its modern publishers, and I think that's 
really a very bad thing.

 Imagine you find Beethoven's 10th symphony. You want to bring out the
 first edition of it, conduct the first performance, and make the first
 CD. It's your lottery tickey. But it requires some investment and
 time. Without protection someone with more resources will undoubtedly
 beat you at it. Leaving you nothing. Under German (and I assume
 European law) you can get protection by securing the rights for, I
 believe, 2 or 3 years.

The owner of the MS controls access to it, and recent US copyright 
law allows them to assert copyright on any unpublished MS, even if 
the author is dead. This, too, is a bad thing, in my opinion.

But you're talking about copyright in editions.

The Sawkins case is about recording and performance royalties, which 
are an entirely different issue, and historically not applicable to 
works in the public domain under any copyright laws, so far as I'm 
aware. That's precisely why the Hyperion case was such a thunderclap, 
in that it changed the rules, allowing editors to take works out of 
the public domain, and thus increase the costs of recordings.

I strongly doubt that the monetary rewards to be had from such 
additional fees for editors is sufficient (assuming recording 
companies would be able to pay them in any case) to entice musical 
editors that would otherwise not be contemplating editing music into 
producing editions. There is no way possible for the amount of work 
it takes to produce a good

Re: [Finale] Editions and Publishing Rights


On 16.02.2006 David W. Fenton wrote:

Yes, that is what I said. It's sad for the recording side of things.
 It's good for the critical edition side of things. Who has got more
 money?


The logic behind your argument escapes me. If the recordings are 
abandoned because of the fact that the record companies would lose 
money if they paid the editors the royalties, then where is the extra 
money going to come from to line the pockets of the editors? If no 
recordings are made, then there's no recording to sell to generate 
the revenue to pay the royalties. No egg, no chicken.




With the same argumentation you could also argue that musicians should 
not be paid because this stops concerts from being put on. Very silly, 
if you asked me. Do you also think that concerts should only be given as 
a hobby for no money? Perhaps the same should apply to composers? After 
all, if they didn't ask for any money they might get performed more often.


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Re: [Finale] Editions and Publishing Rights


On 16.02.2006 David W. Fenton wrote:

In Europe the law does actually guarantee royalties to editors of, in
 particular, critical editions. . . .


How many times must I post that this issue is irrelevant to the 
Hyperion decision? Sawkins was paid a fee for use of his edition in 
the recording. The lawsuit was about royalties, not about the 
customary fees paid for the use of editions in performance and in 
recordings.


 



How many times must I post that it is _royalties_ which are guaranteed, 
regardless of whether a fee was paid or not? The fee he was paid has 
nothing to do with what he is guaranteed by law. You also pay for an 
edition you buy, that doesn't mean you don't have to pay royalties.


Oh well.

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Re: [Finale] Editions and Publishing Rights

2006-02-14 Thread David W. Fenton

On 14 Feb 2006 at 8:36, Kim Patrick Clow wrote:

 Had Hyperion settled with Dr Sawkins at the onset, they would have
 paid him 3000.00 UK Sterling Pounds, versus 3 million they lost after
 going to trial --and then losing on appeal. And the issue isn't a
 single judge's 'bad decision' ( Hyperion lost in the first trial and
 then on appeal). The statue itself needs modification.

Perhaps, but the original decision itself was musicological 
nonsensical, however it may have conformed to the UK copyright law.

 And while I am fearful of what this will do to Hyperion, Dr. Sawkin's
 was hardly a Simon LeGreed in this matter. He was asking for modest
 compensation early on.

Er, he *was* compensated for his editing. That is the main thing 
that, in my experience, most people miss -- they think Sawkins was 
not paid for his edition. But he was already paid an editing fee. He 
was asking for performance royalties, which generally go only to 
performers, arrangers and composers. He basically argued that he was 
a de facto co-composer with de Lalande, which is nonsensical, even if 
the judge did agree with it.

 But this case illustrates exactly the thorny issues involved in
 preparing music editions of older music; and the editor's rights.

No, it involves nothing of the sort. The Sawkins case was *not* about 
copyright in a printed edition. It was about performance/recording 
royalties.

The musicological endeavor by definition is *not* compositional. The 
editor of an edition is BY DEFINITION a slave to the original 
composer's intentions. Sawkins was doing nothing more than trying to 
recover the original intentions of the composer from sources that 
imperfectly conveyed the original work.

Finding that this act is worthy of performance royalties will have 
only one result: fewer new editions will be prepared for recordings, 
or the editions will be prepared by performers instead of scholars. 
Or, the recordings won't happen at all if a performance royalty must 
be paid to the editor.

The Hyperion decision is a Pyrrhic victory that will ultimately be a 
disaster for recording companies, performing groups and editors.

-- 
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David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights

2006-02-14 Thread Kim Patrick Clow

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 CDsold, as he asked at the start of the project,none of this would have gone to court. No bad decisions would have been issued.

And this wasn't an outlandish request: ASV Records had paid such royalities before. 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 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. Without his contributions, the piece could not have been published or performed. It's that simple.

Dr. Sawkins has over 12,000 manhours invested in his editions. Hyperion owed $3,000.00 in royalitiesfrom 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,Hyperionstood by its principles, and recorded without Sawkin's approval. Hyperion was the one being unreasonable in this case, not Dr. Sawkins.

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. The risk is moved away from the company and to the musicologist. 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 throughly disagree with your view thatnone of this has importance for an editor creating a modernPERFORMING edition; and then publishing it.There's no case that clearly illustrates the thorny nature of all this.

Kim Patrick Clow

Perhaps, but the original decision itself was musicologicalnonsensical, however it may have conformed to the UK copyright law.
And while I am fearful of what this will do to Hyperion, Dr. Sawkin's was hardly a Simon LeGreed in this matter. He was asking for modest compensation early on.Er, he *was* compensated for his editing. That is the main thing
that, in my experience, most people miss -- they think Sawkins wasnot paid for his edition. But he was already paid an editing fee. Hewas asking for performance royalties, which generally go only toperformers, arrangers and composers. He basically argued that he was
a de facto co-composer with de Lalande, which is nonsensical, even ifthe judge did agree with it. But this case illustrates exactly the thorny issues involved in preparing music editions of older music; and the editor's rights.
No, it involves nothing of the sort. The Sawkins case was *not* aboutcopyright in a printed edition. It was about performance/recordingroyalties.The musicological endeavor by definition is *not* compositional. The
editor of an edition is BY DEFINITION a slave to the originalcomposer's intentions. Sawkins was doing nothing more than trying torecover the original intentions of the composer from sources thatimperfectly conveyed the original work.
Finding that this act is worthy of performance royalties will haveonly one result: fewer new editions will be prepared for recordings,or the editions will be prepared by performers instead of scholars.
Or, the recordings won't happen at all if a performance royalty mustbe paid to the editor.The Hyperion decision is a Pyrrhic victory that will ultimately be adisaster for recording companies, performing groups and editors.
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Re: [Finale] Editions and Publishing Rights

I don't know anything about the Hyperion case, but as a matter of fact, 
there is something similar to royalties for editors in Germany, too, 
which includes performance rights of all sorts. The best example I can 
think of is the recently (well several years ago) found fragment of 
Offenbach's Hoffmann's Tales (or was it something else?) which two 
European Publisher's fought over the publication _and_ performance rights.


But this does not only extend to previously unpublished music, although 
the situation does get a little nebulous. Critical Editions have some 
special protection, and that includes basically all complete editions. 
If you record a Bach cantata, and use the text of NBA, then you would 
have to pay royalties to NBA. However, in reality this hardly ever 
happens, I guess, since you can always use the old Bach edition, and 
correct it yourself from the manuscripts. Even if in reality hardly 
anyone will do this in any detail, they can always claim to do so, and 
Bärenreiter would have a very hard case to fight.


The idea behind this is that critical editions involve a lot of work 
which can not usually be paid for with the income from selling the music 
itself (especially with critical editions of large orchestral works, 
which has a very small market).


Did you know that Schott still owns the copyright, publication and 
performing rights for Carmina Burana (at least they did a few years 
back)? I know first hand from a friend, that not only does the royalty 
fee depend on whether you simply perform in concert of record a CD (in 
this case done by a school, with sales only to people in the close 
circle of the school itself), but it also depends on whether you do the 
orchestral version, or version with piano accompaniment. In the end they 
had to do the piano version for the CD, simply because they couldn't 
afford the orchestral version.


At least a few years ago Schott made a substancial part of their 
turnover only with Carmina Burana.


I am not taking sides on this, but I do actually see some justification 
for editor's royalties. Whether the Hyperion case is somewhat more 
complicated is another matter (and I don't know enough about it).


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Re: [Finale] Editions and Publishing Rights

2006-02-14 Thread David W. Fenton

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

Re: [Finale] Editions and Publishing Rights

2006-02-14 Thread David W. Fenton

On 14 Feb 2006 at 22:30, Johannes Gebauer wrote:

 I am not taking sides on this, but I do actually see some
 justification for editor's royalties. Whether the Hyperion case is
 somewhat more complicated is another matter (and I don't know enough
 about it)

The Orff situation is the case of a publisher having inherited the 
copyright for a work from its original composer, no? Indeed, the work 
is still under copyright, no?

The Hyperion case is about music that is clearly in the public 
domain.

The issue of published critical editions is not involved -- Sawkins 
made a private edition for the use of the performing group that 
Hyperion was recording.

Sawkins was paid a fee for the use of his edition.

He sued for performance royalties in addition to his editing fee.

I really think it's better not to discuss this case without having 
read the decisions involved, because it's a very specific set of 
facts.

I can't see how Sawkins had any claim to original contribution of the 
kind that is usually required to justify the payment of performance 
royalties.

In my experience, most people who get indignant on Sawkins' behalf 
either ignore or are completely unaware that he received the 
customary editing fee up front, and that what he asked for was to be 
treated as equal to a composer. 

It is in the consideration of this latter issue that the judge made a 
complete hash of musical and musicological issues.

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Re: [Finale] Editions and Publishing Rights

2006-02-14 Thread Kim Patrick Clow

Just to refresh here for a moment-- I asked a question about the issue ofcopyrights - legal rights for an editor; and how to procede when his editionsare published in another country. Since my scores could be published in the UK,
I cited the Sawkins case as specific example of the thorny nature of the law in this regard.
I don't think the issue is as simple as Dr. Sawkin's being a greedy monster.He approached Hyperion many times, and they ignored him. He took them to court.That's his right legally. He won the first trial; and he won on appeal. I doubt that there are

that many stupid judges in law in the UK, or that the Hyperion attornies were unable
to give the court the basic explanation of what's involved in preparing a musical edition.
I am just curious why is it the profit model is ok for publishers, or orchestras,or record labels, or video productions, or the record chains, that make profitsfrom music that's in the public domain is somehow OK. But when an editor
makes his case in court (and wins), he's seen as the Antichrist for doing it?
Kim Patrick Clow
On 2/14/06, David W. Fenton [EMAIL PROTECTED] wrote:
On 14 Feb 2006 at 22:30, Johannes Gebauer wrote: I am not taking sides on this, but I do actually see some
justification for editor's royalties. Whether the Hyperion case is somewhat more complicated is another matter (and I don't know enough about it)The Orff situation is the case of a publisher having inherited the
copyright for a work from its original composer, no? Indeed, the workis still under copyright, no?The Hyperion case is about music that is clearly in the publicdomain.The issue of published critical editions is not involved -- Sawkins
made a private edition for the use of the performing group thatHyperion was recording.Sawkins was paid a fee for the use of his edition.He sued for performance royalties in addition to his editing fee.
I really think it's better not to discuss this case without havingread the decisions involved, because it's a very specific set offacts.I can't see how Sawkins had any claim to original contribution of the
kind that is usually required to justify the payment of performanceroyalties.In my experience, most people who get indignant on Sawkins' behalfeither ignore or are completely unaware that he received the
customary editing fee up front, and that what he asked for was to betreated as equal to a composer.It is in the consideration of this latter issue that the judge made acomplete hash of musical and musicological issues.
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Re: [Finale] Editions and Publishing Rights

2006-02-14 Thread Kim Patrick Clow

David W. Fenton wrote: If you're in musicology for the money, then I think you've made abad, bad mistake.

I have two friends, one has her Ph.D. pending. Currently she's doing data entry for an insurance agency. Another friend who has his
Ph.D., is frantically looking for an academic position in the United States; and hisprospects are very slim.

For my part, I have no desire to make any profit from what I do.What I do, I do for the love of the art. Additionally, I plan on donating any money I may gain to either charity, or to the library that holds the source manuscripts I publish from. I asked about the protections editors should look for in copyright law, because I don't want to be taken advantage of. While my intententions are good, I am old enough to know that other's may not share my personal convictions about music.

On 2/14/06, David W. Fenton [EMAIL PROTECTED] wrote:
On 14 Feb 2006 at 19:40, Kim Patrick Clow wrote: I am just curious why is it the profit model is ok for publishers, or
orchestras, or record labels, or video productions, or the record chains, that make profits from music that's in the public domain is somehow OK. But when an editor makes his case in court (and wins),
he's seen as the Antichrist for doing it?1. I have never objected to contracts agreed to by two parties. IfHyperion wants to pay Sawkins, that's fine. If they don't, that'stheir right, too, within the law, which has not been changed by
Sawkins's lawsuit.2. the legal reasoning behind the decision is specious. Sawkinscannot be both a musicological editor and a co-composer of the works,which is de facto what he asked to be considered. It is bad for legal
precedents to be set on grounds that are nonsensical for the area ofreal life on which they impinge.3, I'm a musicologist. I make editions. I'd love to see thempublished. But I don't expect to ever gain any fair compensation for
the time it has taken me to prepare them, because if I were paid thatmuch, then the publisher could never make any money. But I wouldstill be thrilled to see my editions published and performed.Why?
Because they contribute to a community of musicians and scholars.They provide information that allows the music to live again.In the open source software world, they have the idea of the gifteconomy, where individuals do a huge amount of work for no
compensation and then share the fruits of that labor with others. Isee my role as an editor in the musical world as similar. My gift isnot performing and my reward is not monetary -- my reward is havingdone something that gets the music performed.
If you're in musicology for the money, then I think you've made abad, bad mistake.Sawkins has broken the code of scholarship, in my estimation. He'stransgressed the ground rules of the musical economy. He may have
badly broken the system in doing so -- a valuable record label may gounder entirely because of his actions. Others may have to scale backtheir production as a result of Hyperion's failed defense of thepresent system.
Somehow, I doubt that Sawkins was ultimately motivated by greed,though. I think it's much more likely that his motivation wasentirely ego-driven, that he felt he'd done something so incrediblyimportant and significant that it deserved recognition beyond what he
was getting in the liner notes, the apprecation of the people forwhom he prepared the editions, and the editing fee.And worst of all, he's a hypocrite for asking to be considered co-composer while doing nothing more than every musicologist does every
day when they prepare editions from flawed sources. The task of themusicologist in editing is to recover as much of the intended musicaltext from the flawed and incomplete sources available. If that is the
goal, it is one that cannot be reconciled with being paid fororiginality in that process, as the controlling conception is thatof the composer, who is long dead.Sawkins is being paid for being de Lalande's centuries-removed
secretary.And all the disastrous results of this for the early music worldaside, that is what most disgusts me -- he's stealing credit forconceptions that are someone else's.It's cheating.
And to me as an academic, misrepresenting someone else's work as yourown is perhaps the highest crime.--David W. Fentonhttp://dfenton.comDavid Fenton Associates
http://dfenton.com/DFA/___Finale mailing listFinale@shsu.edu
http://lists.shsu.edu/mailman/listinfo/finale-- Kim Patrick ClowThere's really only two types of music: good and bad. ~ Rossini
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Re: [Finale] Editions and Publishing Rights

2006-02-14 Thread John Howell


At 3:03 PM -0500 2/14/06, David W. Fenton wrote:


Er, he *was* compensated for his editing. That is the main thing
that, in my experience, most people miss -- they think Sawkins was
not paid for his edition. But he was already paid an editing fee. He
was asking for performance royalties, which generally go only to
performers, arrangers and composers.


Excellent point, David, but I can't agree with your last sentence. 
Under ASCAP (American Society of Composers, Authors and Publishers 
unless I remember wrongly), publishers and composers split 
performance royalties.  Arrangers are working for hire, unless they 
have signed a contract with a publisher that says otherwise.  And 
performers (or their sponsors or producers) PAY performance 
royalties, they don't collect them.  You may be thinking of 
publication royalties, but again that depends on the wording of your 
contract.


John


--
John  Susie Howell
Virginia Tech Department of Music
Blacksburg, Virginia, U.S.A 24061-0240
Vox (540) 231-8411  Fax (540) 231-5034
(mailto:[EMAIL PROTECTED])
http://www.music.vt.edu/faculty/howell/howell.html
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Re: [Finale] Editions and Publishing Rights


On 15.02.2006 David W. Fenton wrote:
The issue of published critical editions is not involved -- Sawkins 
made a private edition for the use of the performing group that 
Hyperion was recording.




I really am not an expert on the law side of all this, but in which way 
is Sawkins edition so clearly not a critical one? I don't think the law 
differentiates between private or public in this matter. And from that 
point of view the court decision may be in line with European law, and 
could have been similar in any other European country.


The point is that a critical edition can receive royalties. A one off 
fee may not be enough. In that sense Sawkins may only have sued them for 
something which he is indeed guaranteed by law, and which he would have 
been guaranteed by law in any other EU member state.


For those interested and reading German, here is the web page with the 
relevant information:


http://www.vg-musikedition.de/

They also keep a list of music, for which they deal with perfomance 
rights. Interestingly, NBA does not seem to be part of it (perhaps they 
simply haven't bothered?). But the Beethoven complete edition, Haydn 
complete edition etc.


Johannes
--
http://www.musikmanufaktur.com
http://www.camerata-berolinensis.de

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Re: [Finale] Editions and Publishing Rights


On 15.02.2006 David W. Fenton wrote:
Sawkins has broken the code of scholarship, in my estimation. He's 
transgressed the ground rules of the musical economy. He may have 
badly broken the system in doing so -- a valuable record label may go 
under entirely because of his actions. Others may have to scale back 
their production as a result of Hyperion's failed defense of the 
present system.




What you are saying is, the record companies can make lots of money, 
partly from your work as musicologist, but musicologists (that includes 
me) have to do that work for nothing. In my opinion that's ridiculous. 
In fact, the more I think about it the more I think that Sawkins has a 
point.


It is not as though the money he was asking for came from his publisher. 
So your point about if you asked for more money it wouldn't get 
published is completely irrelevant. Hyperion obviously needed Sawkins 
work to do the recording. They should then keep to the law in 
compensating him. If that includes royalties, then I am all for it, for 
the benefit of the editor, because otherwise the editor will always be 
the greatest loser in the chain of music publishing.


Johannes
--
http://www.musikmanufaktur.com
http://www.camerata-berolinensis.de

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Re: [Finale] Editions and Publishing Rights


On 15.02.2006 David W. Fenton wrote:
2. the legal reasoning behind the decision is specious. Sawkins 
cannot be both a musicological editor and a co-composer of the works, 



Of course he can: I am working on a piece where the middle parts are 
missing. They need to be recomposed. (Not by me though, but by the editor).


Johannes
--
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http://www.camerata-berolinensis.de

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[Finale] Editions and Publishing Rights

2006-02-13 Thread Kim Patrick Clow

There is a good chance I may have some editions published in the UK; but I am a US citizen.I'm curious if anyone has suggestions or tips about doing this. The Hyperion case illustrates how differently UK laws are versus what we have in the United States. I know to copyright my own editions, I just dash off a copy to the Library of Congress. 


But if you have any pointers or thoughts, please feel free to let me know. I am very green in this area. I would rather learn now than find out painfully at a later date.
Thanks so much!
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Re: [Finale] Editions and Publishing Rights


On 13.02.2006 Kim Patrick Clow wrote:

There is a good chance I may have some editions published in the UK; but I am a 
US citizen.

I'm curious if anyone has suggestions or tips about doing this. The Hyperion 
case illustrates how differently UK laws are versus what we have in the United 
States. I know to copyright my own editions, I just dash off a copy to the 
Library of Congress.
 
But if you have any pointers or thoughts, please feel free to let me know. I am very green in this area. I would rather learn now than find out painfully at a later date.




Are you publishing your own music, or someone else's? If the latter, 
when was the music composed, and has it _ever_ been published before?


Johannes
--
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http://www.camerata-berolinensis.de

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Re: [Finale] Editions and Publishing Rights

2006-02-13 Thread Kim Patrick Clow

I'm publishing my performing edition of 18th century baroque music. None of what I have prepared has never been published.
On 2/13/06, Johannes Gebauer [EMAIL PROTECTED] wrote:
On 13.02.2006 Kim Patrick Clow wrote: There is a good chance I may have some editions published in the UK; but I am a US citizen.
 I'm curious if anyone has suggestions or tips about doing this. The Hyperion case illustrates how differently UK laws are versus what we have in the United States. I know to copyright my own editions, I just dash off a copy to the Library of Congress.
 But if you have any pointers or thoughts, please feel free to let me know. I am very green in this area. I would rather learn now than find out painfully at a later date.Are you publishing your own music, or someone else's? If the latter,
when was the music composed, and has it _ever_ been published before?Johannes--http://www.musikmanufaktur.com
http://www.camerata-berolinensis.de___Finale mailing listFinale@shsu.edu
http://lists.shsu.edu/mailman/listinfo/finale-- Kim Patrick ClowThere's really only two types of music: good and bad. ~ Rossini 
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Re: [Finale] Editions and Publishing Rights


On 13.02.2006 Kim Patrick Clow wrote:

I'm publishing my performing edition of 18th century baroque music. None of 
what I have prepared has never been published.


I can only tell you what is true in Germany, but I assume that Europe is 
very similar: As long as you note the copyright in the edition, there is 
nothing else you have to do. The music itself obviously cannot be 
copyrighted, nor can you (or do you have to) get the sole publication 
rights (since the music had been published before, it makes no 
difference when this was).


Don't take my word for it, I don't know the UK laws, nor am I an expert 
on music copyrights, but I don't think there is anything else you need 
to do.


Johannes
--
http://www.musikmanufaktur.com
http://www.camerata-berolinensis.de

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Re: [Finale] Editions and Publishing Rights


PS:

You may have to send copies to the British Library and other complete 
book archives (I believe the Cambridge University Library may have this 
status, and perhaps also the Bodleian Library in Oxford?


Johannes
--
http://www.musikmanufaktur.com
http://www.camerata-berolinensis.de

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Re: [Finale] Editions and Publishing Rights

2006-02-13 Thread Noel Stoutenburg


Kim Patrick Clow wrote:

There is a good chance I may have some editions published in the UK; 
but I am a US citizen.


If these editions are being published by an entity domiciled in the UK, 
let them handle it.


Also, read circular 38a published by the U.S. copyright office.

I know to copyright my own editions, I just dash off a copy to the 
Library of Congress.


No.  To _claim_ a copyright your own editions, you put them in fixed 
form; to _register_ your copyright in the U.S., you send a copy to the 
Library of Congress, and pay the registration fee.  In the UK, there is 
a typographical copyright, which provides your edition with 25 years 
of protection from duplication of appearance (I may not make a photocopy 
of your edition), but not content (I can take your edition, and hand 
copy the music) without respect to whether your edition contains new 
content, or not.  If your edition corrects numerous errors, updates 
notational conventions, restores omitted sections, etc., then you would 
have a claim of original copyright in the U.S. and based upon the 
findings in the Hyperion case, in the UK.  If you have merely 
re-engraved, correcting a few obvious errors in the process, then you 
might not have enough new material to sustain your copyright in the 
event of a challenge in the U.S. 

Just my informed personal opinion, I am not a lawyer in any 
jurisdiction, either in real life, or on the internet.


ns
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Re: [Finale] Editions and Publishing Rights

2006-02-13 Thread David W. Fenton

On 14 Feb 2006 at 0:01, Johannes Gebauer wrote:

 On 13.02.2006 Kim Patrick Clow wrote:
  I'm publishing my performing edition of 18th century baroque music.
  None of what I have prepared has never been published.
 
 I can only tell you what is true in Germany, but I assume that Europe
 is very similar: As long as you note the copyright in the edition,
 there is nothing else you have to do. The music itself obviously
 cannot be copyrighted, nor can you (or do you have to) get the sole
 publication rights (since the music had been published before, it
 makes no difference when this was).
 
 Don't take my word for it, I don't know the UK laws, nor am I an
 expert on music copyrights, but I don't think there is anything else
 you need to do.

The UK is a different animal after the conclusion of the 
Sawkins/Hyperion case, where an editor was given rights in the 
recording equal to a composer (more or less). I'm not sure how this 
effects printed copyright, but it definitely shows that things in the 
UK are not like elsewhere in regard to copyright law.

Personally, even as a musicologist, I think the Sawkins decision was 
woefully misguided. The judge really didn't understand the issues, 
seems to me, and Sawkins seemed to want to have his cake and eat it, 
too. If his goal was to recover the composer's original (lost) text, 
how could he claim authorship in it? And the judge took evidence 
about a different edition of the same work where the reconstructed 
parts differed from Sawkins's parts by only a few notes, and took 
these tiny differences as evidence of Sawkins's right to authorship! 
The commonsense conclusion from my point of view is that the near-
identical reconstructions demonstrate precisely how much the notes 
were dictated by the original composer's work.

I have a long article posted in a different forum that criticises the 
Sawkins decision in some detail. I'll send it to anyone who's 
interested.

-- 
David W. Fentonhttp://dfenton.com
David Fenton Associates   http://dfenton.com/DFA/

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Re: [Finale] Editions and Publishing Rights