By Marc Perlman
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.
© Marc Perlman. August 2005. All rights reserved.
