Posted on 08/27/2005 9:18:04 PM PDT by sitetest
An ethnomusicologist considers the Sawkins v. Hyperion case.
With the Sawkins v. Hyperion case, the classical music world has discovered a fact about copyright law that has long bothered folklorists and ethnomusicologists: under certain circumstances, the law allows individuals, in effect, to "privatize" works that are common property.
Anonymous works handed down via oral tradition — the sort that make up the musical heritage of many small-scale societies — have always been vulnerable to legal appropriation. For a recent (and relatively benign) example, consider the Norwegian saxophonist Jan Garbarek's "Pygmy Lullaby" (from the 1996 recording "Visible World"). The title notwithstanding, this is an arrangement of a traditional song from the Solomon Islands. Garbarek didn't have to pay royalties to the composer, since the composer is unknown. Still, he didn't convert all of the song's value to his own A Melanesian tribesman in the Solomon Islands. profit: he only collected half the royalties he would have received had he performed his own tune, since he was just the "arranger" of "Pygmy Lullaby." The other half — the anonymous Melanesian composer's half — went by law into a fund to support Norwegian folk music.
Garbarek did nothing illegal, and he is entitled to the fruits of his labors: the law allows anyone to modify an ownerless (or supposedly ownerless) work and claim ownership in the result. It's not an entirely outrageous idea: Think of it as a sort of Homestead Act, a way to stimulate individuals to do something creative with intellectual property that isn't generating as much income as it might. But many friends of traditional music feel there is something wrong with a legal system that directs all of the profits from "Pygmy Lullaby" to Garbarek (and Hardanger fiddle contests) and none to the Solomon Islands.
Michel-Richard de LalandeSome of the feelings of outrage directed at the Sawkins v. Hyperion verdict seem to reflect a similar unease. Lalande is hardly anonymous (though Alex Ross thinks that his obscurity made things easier for Dr. Sawkins's lawyers). But his motets, so long after his death, were no longer his. They were part of the public domain, along with that Solomon Islands lullaby, where they were legally available to anyone who could profit from them. So despite the many differences between these examples, when Alex Ross decries a legal judgment that (he feels) unfairly vests the credit for Lalande's creative accomplishments in Dr. Sawkins, I feel I recognize the flavor of his indignation. Though the Versailles court composer would probably not have embraced a nameless Melanesian as a colleague, the works of both are equally open to appropriation under our copyright laws. Indeed, in some ways Louis XIV's compositeur de la musique de la chambre is the more vulnerable of the two men.
Technically, this kind of appropriation is not the privatization of a public-domain work: it generates a new version of it, but does not lay claim to the original. (For instance, Garbarek could not extract royalties from mothers in the Solomon Islands crooning to their children.) Yet when the new, privately owned version is much more accessible than the original, the effect can be to build a fence around the work.
This is where the Third World melody is in a stronger position. The original song on which "Pygmy Lullaby" is based, sung by a woman named Afunakwa in Northern Malaita, can be heard on a CD recorded by the French ethnomusicologist Hugo Zemp for UNESCO. But Lalande's grands motets are much less accessible, since for most of them not even a complete manuscript score survives. A performer wishing to consult a reasonably authoritative source would have to order several reels of microfilm from French libraries.
Thus, although, technically speaking, Dr. Sawkins doesn't own the Lalande motets which Hyperion recorded, in practice he owns the only paved road leading to them, and those who wish to drive there (so to speak) will have to pay his tolls. Intrepid backpackers who have the time (and musicological expertise) are free to scramble through the metaphorical brush to make their own performing editions, but few will try. Though if Mr. Ross knows a public-spirited musicologist specializing in the French Baroque, perhaps he can persuade her to make her own edition and post the PDF files on the Web for all to use. I think the domain name "freelalande.org" is still available.
So, if someone found an undiscovered work of Beethoven's, and recorded it, his version would be the only one available. If he didn't make the manuscript generally available, you'd only be able to hear it by listening to his version.
I wonder how this applies to the piece of music recently re-attributed to the Red Priest?
Very early morning before I go to bed ping for the Classical Music Ping list.
Ping!
Is that like a scooter that doesn't work?
LOL.
"Greensleeves", one of the most popular songs of all time, is by an unknown composer. Should we stop playing it? Whom should we send the royalties to?
"Greensleeves" was supposedly written by Henry VIII, so I suppose one COULD send the check to HM Queen Elizabeth I and II...
As John Sebastian of the Lovin Spoonful said, "a bunch of lawyers went into a room and when they came out, I didn't own the rights to my music anymore".
Send the royalties to the Kingston Trio- they seem to have laid claim to most of the folk songs popularized in the 50's.
"Whom should we send the royalties to?"
Me.
"Greensleeves" may be a better song, but not as popular as "Happy Birthday to You".
http://www.snopes.com/music/songs/birthday.asp
And who says the Freep is not a sophisticated, cultured place when we can casually speak of Baroque French motets with offhanded deft finesse and apolmb?
Pas moi!!
I got an idea! How 'bout they make something and sell it, like maybe some kind of objet d'art? Or maybe they could perform for people and sell tickets! Or maybe they could put all their poems or intellectual stuff in a book, and maybe get their friend the artist to draw some pictures for the book, and sell that! Of course that's means work, and we know how much our intellectual proprietors hate work, so maybe not... Let's just give them grants.
There's a Free Republic Classical Music Ping List? I clearly don't spend enough time here.
Please add me to it, if you wouldn't mind. Thanks.
You got it.
Please add me to it, if you wouldn't mind. Thanks.
I thought you folks might be interested in sitetest's new ping list. Just direct your request to be added to sitetest.
I can understand what a struggle that is; I'm an artist and while I occassionally sell a picture, it's hardly enough to cover the paint. I'm almost embarrassed to admit this, in fact I sometimes think revealing it to people is like a blinking neon sign proclaiming: FOOL.
The struggle and the disappointments tend to make one cynical and sometimes that comes out; I hope I didn't offend.
But I do consider the notion of intellectual property a dangerous one that potentially makes us vulnerable to all manner of intrusions. I'm thinking here of the kids who were sued by the recording industry for sharing songs. As I see it the record monguls were simply out-smarted.
I'm not saying that some intellectual property protection isn't legitimate; patents serve an obvious common good. But it's easy to be carried away. If the burdens posed by a law outweigh its benefits, we're better off doing without. We're getting very close to that line, I fear. Whenever possible we should define property in terms of some tangible thing, so that it is a physical object that is protected.
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