13 July 2004

Six Woodwinds in Search of an Author

How original is "original"? Well, it's obviously different in England than in the US, because there's no constitutional originality requirement in England. And now, let's change the context from written text to music; and the British MCPS, which substitutes for ASCAP and BMI in administering compulsory mechanical licenses. Stir in source work over 300 years old, and you have a greedy lawyer's dream: lots of legal fees and almost nothing in the way of damages.

Many people will shrug their shoulders at this one. An "editor" is an "editor," right? Well, not in the wonderful world of musicology, which has for a century insisted on adopting terms from print publishing and then changing the definitions, possibly just to keep things mysterious. Consider, for example, Beethoven's piano sonatas. I'm no longer a serious player, and a cheapskate, so I "invested" in the Dover reprint of the public-domain Schenker versions for personal use. However, I wouldn't dream of using Schenker for a public performance, particularly of any of the late sonatas; there are considerable differences in some of the manuscripts, resulting in "editorial choices" that print would call "ghosted revisions." And Beethoven's piano works are unusually stable among pre-twentieth-century music that was ever even written down.

The main difficulty is that the Lalande situation in the referenced article is a perfect example of the kind of bad facts that make bad legal theory, and then bad law. It would be easy to take this and claim that the entire music licensing system needs to be scrapped and rethought. (OK, it does, but not for this reason; try antitrust and abuse of WFH instead.) Just be glad that print hasn't gone this far… yet… although the recent poetry-collection case tried.