Lionel Sawkins, a scholar of French Baroque music, recently took the Hyperion record label to court with the claim that his editions of the works of Michel-Richard de Lalande entitled him to royalities from Hyperion's recordings of same. The label lost the case and has now lost an appeal. The company is expected to pay not only royalties but also Sawkins' lawyers' fees.
It's a peculiar turn of events. No doubt Sawkins put a lot of work into his Lalande publications, but so too has every editor who has ever prepared editions of canonical works. Sawkins is claiming "originality" in this case, and thus the right to royalties, because, according to his lawyers' statement, he did the work of "resolving ambiguities in the source material and adding items such as figuring, ornamentation and performance directions." Huh? Writing out figured bass from instrumental parts is drudgery that requires no imaginative power. The court's confusion comes from the fact that before 1800 the notion of a completely notated, sacrosanct "work" did not exist; performers were expected to fill in the gaps themselves. Sawkins has somehow convinced the court that pro-forma elaborations of period style reveal his own individual genius, and Hyperion is consequently in deep trouble. The label is one of the best small companies in the business, long celebrated for its early-music recordings. If every scholar makes the same claim, then such recordings will become financially impossible. How's that for beautifully self-defeating logic?
Update: Charles T. Downey of ionarts speaks in Sawkins' defense. He makes a good point: Hyperion knew going into this recording that Sawkins was expecting to receive royalties, and so they can't claim to have been blindsided by his lawsuit. But I don't follow the rest. Downey writes: "The recording could not have happened as it did without the edition. That is the definition of a creative contribution." The restoration of Verdi's Don Carlos could not have happened without Andrew Porter and David Rosen's rediscovery of the material of the Fontainebleau act. Do they deserve royalties on performances of Don Carlos around the world? Pianists are in debt to Walther Dürr for his immaculate editions of Schubert sonatas in the Neue Schubert-Ausgabe. Does Dürr deserve a reward every time one of his editions is played? Pandora's Box begins to open. I just don't accept "lots of work" as grounds for assuming authorship. Either the piece was composed by Lalande or it was composed by Sawkins. The court has concluded that it was composed by Sawkins, setting a weird, Borgesian precedent.
Before someone gets into a huff, I want to make clear that my phrase "drudgery that requires no imaginative power," which Downey takes as the headline for his post, applies only to the particular issue of writing out figured bass, and not to Sawkins' entire project. This kind of scholarship can be intensely imaginative. But "creative," in the legal sense? Does Sawkins possess, in Justice Patten's approving words, a "moral right to be identified as the author of the work"?
Sawkins' lawyers, Carter-Ruck, are not to be messed with, by the way. They have, according to a review of recent activities, prevented the exile Russian tycoon Boris Berezovsky from being deported; won damages from Boy George after he tried to explain why he broke the nose of a nightclub employee (the guy deserved to be smacked, Boy told Boyz magazine); and successfully represented Exclusive Ballooning Ltd. against apparently wrongful allegations that an Exclusive Balloon had crash-landed on a farm, killing two thousand chickens.
More at On An Overgrown Path.