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
derivative of de Lalande's original composition. The 5 or 6 notes in
the 120-odd measures of the viola part in one work are hardly
sufficient to justify independent copyright for the edition as a
whole, seems to me.
To me, this one isn't even a hard choice to make -- it's very clearly
just standard musicological editing, the kind that any 2nd-year grad
student in musicology should be able to do most of.
The hard choices are when there is more reconstruction, but still
highly circumscribed by the existing source material. I've given
several types of examples, such as a piece for 4-part viol consort
reconstructed from a lute part that omitted the top line (i.e., the
lute part had only 3 of the 4 lines), and have said that I couldn't
say on principle where to draw the line. Somewhere along the
continuum, reconstructive work becomes largely compositional, when
the source material is sufficiently absent that it ceases to provide
a clear framework limiting the musical choices. Where that line is
drawn will depend on:
1. the number of parts missing
2. where they fall in the texture
3. the degree of doubling
4. where the missing part falls in the musical structure (in the
middle or at one of the extremes)
5. the musical style, contrapuntal/imitative/strict or free or
homophonic
6. the ranges of the istruments that would have played the missing
parts
7. the appropriate historical playing styles and figuration of the
instruments that played the missing parts
and probably others that I haven't thought of.
It's conceivable that other pieces where the viola was reconstructed
would have been quite extensively compositional and not clearly
dictated by the rest of the musical fabric. I doubt there'd be many
Baroque pieces where this would be the case, but it's possible. It
could also be that pieces with two or three reconstructed parts would
not really be compositional but simple reconstruction, e.g., in a
piece that is strictly contrapuntal and imitative.
My position is that the judges in the Sawkins case misread the
evidence because they don't understand the process they were being
asked to evaluate and had no contribution of how little leeway
Sawkins actually had in making his choices in his edition. That
doesn't make the change of law wrong in principle, but it makes the
judgment wrong in the specific instance.
Johannes, I think you are tending to argue the general case and
ignoring the specifics of Sawkins's editions (as outlined in the
decisions, which you seem to say you haven't read), while I'm
criticising the decisions for being based on a particular case that
doesn't exhibit sufficient originality to merit copyright beyond the
typographical arrangement.
--
David W. Fenton http://dfenton.com
David Fenton Associates http://dfenton.com/DFA/
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