In recognition of how important all of Lionel's decisions were, in making a critical edition, to the success of the recording, he asked Hyperion to sign an agreement, before the recording began, to give him royalty payments. (The performers reportedly used advance versions of the critical edition before it was even published, in the Lalande complete works, supplied by Hawkins.) An estimate of how much such royalties would have cost Hyperion amounts to a few thousand pounds. The company refused to sign and now is possibly going to pay over a million pounds. It's sad that such a judgment will likely capsize Hyperion, either permanently or temporarily, but Hyperion never should have gone ahead with the recording without legally resolving the issue of royalties for the editor first. What would have happened if Lionel had refused to sign over the rights to his edition if he had to agree in writing that he would not be given royalties? The recording could not have happened as it did without the edition. That is the definition of a creative contribution. I just wish that Lionel could somehow now waive the settlement to himself and his lawyers and receive only the original amount of royalties he wanted. But that's not going to happen, is it?
I have it on good authority that Lionel Sawkins will speak about this case on a special panel, as part of this fall's annual meeting of the American Musicological Society, here in Washington, D.C. I'll let you know what he says.
UPDATE:
Alex responds with some more thoughts (appended to his original post). For the record, I am hard pressed to consider myself a real defender, because I wish that Professor Sawkins had not brought the lawsuit, in view of how his victory may affect early music recording, by dampening or even throttling it through fear of litigation (so, although I did find Alex's words, quoted in the title of this post, to be extreme—even as applied only to figured bass—no huffs will be gotten into here). However, I will try to answer Alex's questions about how I see Lionel's side of the legal argument:
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.Not on any performance of Don Carlos but on one that uses the rediscovered material, I could see how Porter and Rosen could make a claim. The same is true, I suppose, of critical editions of Schubert or any other major composer, for the work an editor does in removing errors that have been wrongly thought part of the piece for years. At the same time, the editing of a work does not prevent anyone else from going to the original sources and making a different edition. In that sense, Sawkins did not compose the works—Lalande did that—but he did make something—a critical edition—that required expertise and creativity and that was indispensable to the recording as it was made. (I'm not sure if that is exactly how the judge saw it, but that's how I would describe the situation.)
That many people, even musicians, do not realize what is involved in making good editions of music (to be clear, I am not talking about Alex Ross here) is evident in what I mentioned in my review of Opera Lafayette's last performance, that the editor of the music they used was not even mentioned in the program (although he transcribed the parts from original notation specifically for that performance and recording: watch out, Opera Lafayette!). As another example, I have recently received a new edition of Moreau's incidental music for one of Racine's tragedies, which I am reviewing. That music is, legally speaking, in the public domain, but that does not do me much good, without the work of the editor. Perhaps what a translator does provides the best analogy: a translator is not the author of the book he translates, but his translation is still his intellectual property while, at the same time, another translator could make his own translation.
If Hyperion did not want to agree to pay Lionel royalties, they could have sent someone else to the libraries in France to get the 18th-century sources and do the work that he did. The judge who made the initial ruling went through the recording in some detail, comparing it to Lionel's edition with the help of an advising expert. Lionel had to reconstruct some of the parts that were missing, and all of that work was used on the recording. In general, I think that most scholars would be willing to waive any such propietary claims in the interest of seeing the music they study revived in performance and recording. However, their work to make it happen is crucial, and just as performers have a right to protect their specific recreation of Lalande's music (Jeffrey Skidmore and his musicians did not compose the music either—as Alex says, Lalande did), the editor apparently also has rights. It will just mean one more legal form that has to be signed before a recording can happen. I'm sure that recording company lawyers have been drawing up the necessary agreements.
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