Fights over rights threaten refound musical treasures
By David Patrick Stearns
Inquirer Music Critic
When great music is silenced by law, who is truly wrong? Such is the nasty issue arising repeatedly in the low-stakes classical recording industry.
So ephemeral is music that passionate minorities who appreciate it can’t believe their luck when lesser-known pieces survive multiple centuries, or when radio broadcasts by great, deceased or retired performers can still be heard – and enjoyed immensely. Yet making such music available to the public can be legally problematic. These are intellectual properties that belong to somebody else, even if that “somebody” might not know they exist or appreciate their value if they did.
Three case histories:
Savvy opera fans secretly rejoiced this year over the sudden availability of Metropolitan Opera radio broadcasts. Roughly 400 titles culled from the last 70 or so years – some of which hadn’t enjoyed even clandestine publication – were sold on the small, independent Bensar label. But, to the distress of listeners, they have recently been pulled off the market.
England’s prestigious Hyperion label (whose artists include Philadelphia-based Marc-André Hamelin) just lost a lawsuit over ownership of music that’s centuries old – a loss that could dampen the label’s future output due to court costs.
If you’ve seen fewer recordings by great Russian pianist Sviatoslav Richter on the market, it’s because someone claiming to be an heir to his estate has been demanding royalties from the small boutique labels that are making available performances that probably wouldn’t reach the public otherwise.
The resolution of this last incident is the only one so far to favor dissemination of the music. Leslie Gerber of the Saugerties, N.Y.-based Parnassus Records challenged the claims for payments made by Dmitri Dorliac, the nephew of Richter’s longtime companion Nina Dorliac. After Gerber challenged Dorliac on whether the two had really been married (thus questioning the legality of the claim), the nephew produced documentation, but failed to follow through on his suit.
Perhaps one could argue that Gerber and others are making money off properties that aren’t legally theirs. But would those who own the properties bother to disseminate them?
Now that the boom years of the compact disc are over, classical music discs often don’t make back their costs. No matter that the discs contain work by some of the century’s great artists – often in live performances never recorded in the studio. Their appeal is often so specialized that purchasers are more likely to find them on specialized international Web sites than in Tower Records.
Gerber’s series of discs titled “Richter in the ’50s,” consisting of unreleased performances during the artist’s best period, aren’t likely to sell more than 2,500 copies over several years. Though the pianist’s hard-core public is thrilled, the chances of Gerber making back his $20,000 in court costs are slim. With such tiny profit margins, it’s no wonder that major labels that could release 1950s Richter recordings legitimately won’t do so.
“It’s fans like me,” said Gerber, “or nobody.”
Some organizations simply can’t issue their great archival performances because of the expense – often the result of electronic media agreements with the musicians unions. The Met does issue one such opera set a year, often a fund-raising tool sold for $50 to $150 – out of reach for many opera lovers.
The clandestine Bensar Met sets sold for $10 or less per disc: gems such as the 1963 broadcast of Anna Moffo singing the title role of Massenet’s Manon. The major source was Berkshire Record Outlet, a popular mail-order business based in Lee, Mass. “Initially, I didn’t want to get involved with this,” said Berkshire president Joe Eckstein. “But I was told that I’d be doing a service to collectors.”
That went on for nearly a year, with shipments that even went to the belly of the beast: employees of the Metropolitan Opera. Soprano Kiri Te Kanawa received one as a gift – and was happy to have it.
Not that sales were gangbusters; no Bensar title sold more than 100 copies, Eckstein said. The problem came when family members of one deceased, second-tier soprano asked for royalties. After receiving them, the family couldn’t believe that the recording in question had sold only 37 copies.
Whether related to that incident or not, Metropolitan Opera management cracked down shortly after, in mid-May. Yet the Met’s manner bordered on apologetic. “They couldn’t have been nicer,” said Eckstein. He stopped selling the discs immediately.
New recordings with pristine production values – in contrast to Bensar’s bare-bones packaging – command a market that’s equally passionate, but with a similarly slim profit margin. The Hyperion catalog is full of great music that hasn’t been performed for five or six centuries. But the difference in the case of motets by French baroque composer Michel-Richard de Lalande that Hyperion made the mistake of recording is this: The scores themselves required so much editing that the usual “hire fee” wasn’t enough for musicologist Lionel Sawkins, whose work rendered the music performable.
Indeed, a British court ruled in May that Sawkins’ work was so extensive that full royalties were in order. That’s no great financial hardship, but court costs are.
“Hyperion now is forced to reconsider its general recorded output,” according to the label’s statement, “and will be reducing dramatically its commitment to many new recordings.”
The court’s ruling is sensible. The effect, however, is mercilessly unbalanced, with a huge impact on a larger population for only short-term gains. Whether it’s a Mass by Jacob Obrecht or a Soviet recital by pianist Richter, this is great art that the world wouldn’t ask for, simply because it doesn’t know of its existence. But how much less rich we’d be without it.
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