Minkus's Reconstructed Score -- Copyright issues

[sejacko]

I'm in the process of reading Letellier's "The Ballets of Ludwig Minkus". Fascinating!

Regarding the Mariinsky reconstruction, he states that the reconstructed score is "Copyright of the Mariinsky". I'm wondering if that's legal (apart from being unconscionable). As we understand it, the music was re-assembled from a handwritten score in Minkus's own hand. Presumably small editorial decisions had to be made for practical reasons, but since the basis of the reconstruction was the 1900 revival, those would already mostly have been made in 1900. Copyright surely cannot exist on material composed (and edited) more than 100 years ago.

I can understand that from a staging point of view (choreography, direction, etc.) more modern input was required. For instance male variations are obviously more virtuosic than they were in 1900; indeed some later additions were retained in that regard. Ballet technique itself has changed/evolved dramatically over the last 100 years and no-one can pretend that what we see (only on YouTube as the case may be!) is what the ballet would have been danced like in 1900. But the score itself, as a piece of intellectual property, I don't think can be owned/copyrighted by Mariinsky. Or am I wrong?

As a revival of the reconstruction now seems out of the question, at least they should make the score available to the outside world. Hopefully one day a full studio recording of the score will be forthcoming.

Jack

[rg]

i know little or nothing of copyright law and related procedures.

i suppose the Maryinsky can file copyright on the work it's done on the long lost act 4.

if someone, i suppose, could get hold of the materials with which Maryinsky worked to put this act back together, such persons could make their own version of this Minkus act, but if one wanted to use the precise work done by the Maryinsky musicologists, from their sheet music, etc., one might have to pay the Maryinsky royalties?

one point on which Letellier seems vague is his mention of Nureyev's acquisition of the "lost" last act on his last trip to Soviet Russia. if i read him correctly, Letellier assumes Nureyev's Paris staging made use of this find, but we know that due to his increasingly ill health Nureyev never got to work w/ the music he acquired in Russia and that, in the end, his production concluded with the Shades scene. So perhaps Nureyev's copy of the last act's score, if Letellier's data is correct, is somewhere in the Nureyev archives? or Paris archives? or was it sold at one of the two? Nureyev auctions after his death?

[leonid17]

I'm in the process of reading Letellier's "The Ballets of Ludwig Minkus". Fascinating!

Regarding the Mariinsky reconstruction, he states that the reconstructed score is "Copyright of the Mariinsky". I'm wondering if that's legal (apart from being unconscionable). As we understand it, the music was re-assembled from a handwritten score in Minkus's own hand. Presumably small editorial decisions had to be made for practical reasons, but since the basis of the reconstruction was the 1900 revival, those would already mostly have been made in 1900. Copyright surely cannot exist on material composed (and edited) more than 100 years ago.

I can understand that from a staging point of view (choreography, direction, etc.) more modern input was required. For instance male variations are obviously more virtuosic than they were in 1900; indeed some later additions were retained in that regard. Ballet technique itself has changed/evolved dramatically over the last 100 years and no-one can pretend that what we see (only on YouTube as the case may be!) is what the ballet would have been danced like in 1900. But the score itself, as a piece of intellectual property, I don't think can be owned/copyrighted by Mariinsky. Or am I wrong?

As a revival of the reconstruction now seems out of the question, at least they should make the score available to the outside world. Hopefully one day a full studio recording of the score will be forthcoming.

Jack

I am no expert in this particular matter but I would offer my minor Knowledge in this matter.

If a modern publisher of an old score can absolutely prove that the original Minkus score was never published before, in some countries it would appear that the first published (modern) version may/can be the legitimate copyright. It would appear despite the international conventions on such matters, what is technically in copyright in one country may in the USA be considered according present copyright laws be outside of a copyright if it was published before 1923.

In terms of the copyright for a reconstructed score I think Robert makes an important point when he states, "i suppose the Maryinsky can file copyright on the work it's done on the long lost act 4.

if someone, i suppose, could get hold of the materials with which Maryinsky worked to put this act back together, such persons could make their own version of this Minkus act, but if one wanted to use the precise work done by the Maryinsky musicologists, from their sheet music, etc., one might have to pay the Maryinsky royalties? "

Copyright law is a growth industry.

[sejacko]

i suppose the Maryinsky can file copyright on the work it's done on the long lost act 4.

But if the "lost act" was jettisoned in toto (circa 1923?) the only "work" they had to do was to re-assemble it (ie. finding all the pages and figuring out which page follows the next), as they've made in known that this was a *fully orchestrated* (?) complete score which was discovered in the Mariinsky archives. (Even if it had to be re-assembled from orchestral parts, that's not really that big a deal.) I'm no copyright expert either, but that kind of rudimentary musicological process is surely not enough to claim full legal copyright on the music itself.

if i read him correctly, Letellier assumes Nureyev's Paris staging made use of this find, but we know that due to his increasingly ill health Nureyev never got to work w/ the music he acquired in Russia and that, in the end, his production concluded with the Shades scene.

I was always under the impression that Nureyev had used the the old standard Chabukiani (cut) version as a starting point for his production. He seemed to be more concerned with the orchestrations than with the "lost" act. I think that, if he had indeed had access to the same material as what was used for the reconstruction, there would have been some indication (even one little dance which which was "new" -- how could he possibly resist?). As it stands, his version is pretty similar in most respects to Chubukiani in terms of the structure of the ballet. Perhaps Mr. Letellier muddled the issue. As enjoyable as his book is, it's certainly not without errors!

[rg]

my 'sense' remains one understanding that Nureyev intended to have a final temple-destruction act, but that only as his health weakened did it become apparent he was in no condition to take on staging this - thus, if mem. serves, N. Kurgapkina set to work 'finishing' whatever was then done, all along 'standard' (i.e. ponomarev, chabukiani, etc.) kirov lines.

maybe Kavanagh has something to say on this?

or, any BT members who follow POB info carefully and who might have read the publicity surrounding the '92 Paris premiere of LA BAYADERE?

[sejacko]

I've been doing a bit of reading about Russian copyright law. (Ok so it's only on Wikipedia..)

Here's what it says about unpublished works:

"Among the true novelties introduced by the new legislation in the area of copyrights were a publication right (a copyright granted to the publisher of a previously unpublished, uncopyrighted work with a period of 25 years from the publication), and the definition of two kinds of contracts: one for copyright transfers, and licenses for granting usage rights. Newly, gratis licences were explicitly allowed (article 1235). A subtle change concerned the calculation of the copyright term for posthumously published works, which began newly from the disclosure instead of from the publication. (See above for the difference.)"

...and crucially :

"For a work that was disclosed during the author's lifetime, the copyright term of 70 years thus runs from the year the author the author died (or was rehabilitated, if the rehabilitation was posthumous), even if the work is published only later."

As for what they mean by "disclosure"...

" "Disclosure" is a concept newly introduced in the copyright law of 1993 to put an end to the ambiguities surrounding the term "publication" in the old Soviet copyright law. In Soviet copyright, publication included ephemerally making available a work, such as through a performance, a speech, or a broadcast. However, for foreign works protected under Soviet law indirectly through international agreements (in particular the UCC), the definition of "publication" laid down by these agreements (typically the "making available of copies", which excluded ephemeral reproduction and required the physical fixation of a work) was used. The new law tried to resolve this confusion by using "disclosure" for the broader sense (making accessible of a work to the general public through publication, performance, broadcast, or any other means), and using "publication" generally only in the sense of distribution of copies of a work to the general public."

In broad terms this is all in line with international copyright law. Thus (if I'm interpreting this correctly), copyright on La Bayadere (1900 version), because it had been "disclosed" (ie. performed) during the composer's lifetime, extended to 70 years after his death (in 1917) -- thus to 1987.

I can only re-iterate that IMHO whatever "work" was required to make this version performable (if it's as "authentic" as they claim it to be), was not enough to give them full and legal copyright on the work, and thus the work is for all intents and purposes in the public domain.

But they do own the original score (in the physical ink-on-paper sense). So apart from physically keeping the scores and their orchestral parts under lock and key, I don't think that, if anyone decided to do a "reverse engineering" job (ie. use what is out on YouTube etc.) and re-assemble (as-close-as-is-possible) a full score (including lost act) that way, the Mariinsky would not have any recourse to copyright protection.

Morally, however, it shouldn't have to come to that. The "moral rights" (as defined in the same article), remains with the composer. And thus the Mariinsky (as the owners of the score) have a moral responsibility to further Minkus's reputation by making the score as widely available as possible (ie. by GETTING IT PUBLISHED).

(If you've gotten this far, for sticking with me!)

[rg]

it's not reading through the end of such texts, it's comprehending it that would be remarkable for me.

in any case, i note that re: the 'missing musical parts' of the score that Nureyev had 'smuggled out' of soviet russia in hopes of using them for his POB staging were most likely those of the long-excised last act.

so these are somewhere still i imagine.

maybe 'copyright' is the wrong the word for the wraps the Maryinsky hopes to keep on its work with this music.

it perhaps hopes to claim fees for use of the score as it was put together by the reconstruction team.

i noted in a 2003 book focussed on 300 years of Petersburg ballet and opera history the publication had copyrights noted to all the historic photos used to illustrate its text. since there isn't likely any way to claim 21st c. copyright for c. 19th century photos i assume the publication means to copyright the 'prints' the various St. P. museums and archives own.

in any case, re: the Bayadere's last act, Kavanagh records that when Nureyev asked Frigerio asked how much the act's 'earthquake' would cost and was told 'a million dollars' Nureyev said: Then skip it.

it would seem however, that whatever pp. Nureyev brought out of Leningard, they were the ones that remained of the final act, minus those that were earlier, presumably in the 1940s, removed to piece together the pas d'action of the betrothal sc. for the Ponomarev/Chabukiani staging.

another potential motivation for the Maryinsky's decision to keep its score to itself was to be the first to record it, in it's 'original' form. but given the current lack of interest in the production that came from all this work, maybe those plans have been scuttled.

it's a gray area all around i suppose but so long as the Maryinsky keeps the score locked up the outside world will be at the theater's mercy to gain access to it.

[leonid17]

"I can only re-iterate that IMHO whatever "work" was required to make this version performable (if it's as "authentic" as they claim it to be), was not enough to give them full and legal copyright on the work, and thus the work is for all intents and purposes in the public domain."

The "authenticity" is derived from archive material as described in the Maryinsky Theatre Press Kit which Alexandra posted 02 July 2002 that gave the following information.

"Through a strange misunderstanding, Ludwig Minkus' original score for La Bayadère was believed lost until now. The Mariinsky Theatre Music Library, however, has two volumes of Ludwig Minkus' hand-written score, as well as three manuscript repetiteurs (arrangement for two violins) with many notes for ballet masters and performers. The order of the sheet music of the original, hand-written score was changed in 1941 in accordance with Ponomarev and Chabukiani's version. All the music was first brought into line with the original, 1877 version of the score, and then all the necessary cuts made in accordance with the 1900 version. The Mariinsky Theatre is currently the only theatre in the world that has Ludwig Minkus' full, original score for La Bayadère. This score is the property of the Mariinsky Theatre.”

NB

For "strange misunderstanding", read CENSORED not to be discussed as the dramaturgy of the original production did not coincide with Soviet policy of works being performed in Soviet theatres and therefore effectively did not exist.

[Alymer]

You are correct rg in assuming that Nureyev's original intention was to restore the final act, and just a day or so after the premiere he actually said how much he regretted being unable to complete the ballet. And yes, because of his illness Kugapkina did much of the staging. Nureyev's production of Kingdom of the Shades was already part of the POB repertoire, but I seem to recall that the version in the full-length staging is far more like the standard Soviet staging - though I can't be sure as it is some years since I've seen the POB production. So presumably music for the last act is somewhere in the Paris Opera archive.

As an aside, Nureyev had wanted to stage the full-length Bayadere for years, even suggesting to de Valois that he could put it on for the Royal Ballet School graduation performance with dancers from the company in the principal roles.

.

[leonid17]

" So presumably music for the last act is somewhere in the Paris Opera archive."

Can any one confirm this?

From what I remember, the score that John Lanchberry worked upon to bring the ballet to the stage was fairly incomplete due to manner in which he had received photo-copes of the so called original score from Mr Nureyev. There were sections missing or incomplete and a pastiche version of the score was produced. Was there enough of the photo-copied score to complete the last act?

I was given to understood that it was considered after long discussion in which Rudolf Nureyev took part, that in giving the violent last act ending was also not quite the thing to send the Paris audience home with and the conventional Soviet ending was adopted.

[rg]

all i suppose that exists, if anything of this still rests in POB archives, is whatever photocopied pages were smuggled out of Soviet Russia for Nureyev's use toward his last staging.

as the 'reconstructors' noted about their work to get the last act back and in shape for the Vikharev staging, the last act was 'in pieces' w/o the pages the 1940s stages removed to enchance the other acts.

so presumably all that Nureyev was given were the scattered pages that existed in the act 4 'folder' before the reconstruction of the last act was done in 2001.

as stated above, according to Kavanagh, Frigerio told her that when he told Nureyev the catyclism would cost 'a million dollars' he said 'then skip it.'

so i don't know if he dropped his plans for lack of the full last act score or for reasons of budget or of his increasingly ill health or a combination of all three.

[4mrdncr]

Sorry if this is a "dumb" question, but...

What about Makarova's reconstruction/creation of a last act?

[sejacko]

Sorry if this is a "dumb" question, but...

What about Makarova's reconstruction/creation of a last act?

The much-maligned Makarova/Lanchbery version has no particular relevance in terms of copyright issues since so much "real work" (orchestrations, reworking and new music) went into it that it would carry its own new copyright, and rightfully so. I happen to think that it's very enjoyable in its own right, but it's one of those love-to-hate-it vs. hate-to-love-it things. At least it did lead to a a splendifirous recording of the music (Decca/Bonynge) which is more than the Russians ever gave us.

But does Makarova not also deserve credit for starting the slow process towards La Bayadere's rehabilitation towards it's original form? It seems to be happening in more-or-less 10 year intervals:

1980 : Makarova/Lanchbery (ABT) - 4th act recreated, heavily reorchestrated

1991 : Nureyev/lanchbery (POB) - 4th act (apparently) considered and abandoned, orchestrations a bit "lighter"

2000/2001: Mariinsky Reconstruction of Petipa's 1900 version with original Minkus score

Perhaps the next few years will yield a further development in this process. We tend to forget that what they found in the Mariinsky archives was not only the score as revived in 1900 but also the rest of the original 1877 score, which was then "brought into line" (changes/cuts) as per the 1900 version. By implication that means there is even more music that we haven't even heard yet!

As I've argued above, in my opinion (by modern copyright laws), the Mariinsky do NOT hold the copyright to this music (much as they'd like to think they do), and they have a moral obbligation to make it available to the outside world. Ideally a facsimile of the 1900 version of the score should be reunited with the materials already held in the Sergeyev collection at Harvard, along with a copy of the full original 1877 score. There they will be accessible to scholars and ballet institutions to be studied, copied, performed and recorded as any other important piece of art in the public domain should be.

Or what, wait another 100 years before reviving the thing?

[RhinoHaggis]

I am trying to get oriented in this area (impossible to obtain scores) and to me the Letellier books raise some concerns.

This Bayadère volume is much better documented than his Paquita score, but it is hard not to be troubled by the artful way the scores “from the Soviet era” remain totally unspecified.  This is a familiar frustration for the ballet musician; people with access to manuscripts use it as an opportunity to monetize that access while failing to disclose the location of the materials consulted.

One who browses the Letellier books will find volumes where photographed or scanned copies of someone else’s work are arranged page-for page.  Nevertheless the copyright page claims himself as the sole and exclusive copyright holder.

Now, look. I’m not an expert in copyright law but there seem to be two clear options here:

1) Either there is indeed a valid copyright claim on these scanned works, in which case it will be someone involved in their creation, but obviously not Letellier, or

2) there is no valid copyright claim on them,  and the only plausible copyrights he could assert would be as editor, or Collected Works, and in either case he should have thought about doing some actual editing or collecting rather than simply pasting photographs of another editor’s work, start-to-finish into his book.

In other words -although I am no expert- the copyright claims appear at first sight to be completely specious. It is difficult to construct a scenario in which one could apply such claims to a work in this form.

Moreover Dr. Letellier is a teacher at Cambridge, where a brief look at their research and publication standards make pretty clear that each of the three:

1) reproducing works without proper attribution

2) presenting historic documents without proper references eg location of those materials

3) claiming personal copyright on such materials

fails to meet their research standard.  And lastly, there is the obvious ethical breach: knowing full well the exceptional difficulty of finding and consulting such source materials -and operating as a scholar- rather than immediately make those materials available to a library where they could be freely consulted by the public, and almost certainly injected into the Public Domain…. he kept them for himself and published them on a vanity press as his own.

[RhinoHaggis]

I’m not trying to make a character attack here.  I think these are legitimate concerns about conduct. And in fact, this way of operating is so common in ballet music, there is no reason even to assume he acted in bad faith, which I do not.

 

the fact that you CAN NOT, as a research scholar do either of the following 

a) holding unpublished material you know or believe to be copyrighted, publish it  as your own, or

b) holding such material which you know to be free of copyright and rare, keep it for yourself for monetary gain rather than relinquish it to a library or some other appropriate method

are not minor recommendations.  These are the kind of rules that underpin the very notion of ethical conduct in scholarship. 

i an mot a mind reader;  could be wrong about these volumes and I would happy to be.

Edited September 17 by RhinoHaggis

[RhinoHaggis]

On 4/17/2009 at 1:12 AM, sejacko said:

I've been doing a bit of reading about Russian copyright law. (Ok so it's only on Wikipedia..)

Here's what it says about unpublished works:

"Among the true novelties introduced by the new legislation in the area of copyrights were a publication right (a copyright granted to the publisher of a previously unpublished, uncopyrighted work with a period of 25 years from the publication), and the definition of two kinds of contracts: one for copyright transfers, and licenses for granting usage rights. Newly, gratis licences were explicitly allowed (article 1235). A subtle change concerned the calculation of the copyright term for posthumously published works, which began newly from the disclosure instead of from the publication. (See above for the difference.)"

...and crucially :

"For a work that was disclosed during the author's lifetime, the copyright term of 70 years thus runs from the year the author the author died (or was rehabilitated, if the rehabilitation was posthumous), even if the work is published only later."

As for what they mean by "disclosure"...

" "Disclosure" is a concept newly introduced in the copyright law of 1993 to put an end to the ambiguities surrounding the term "publication" in the old Soviet copyright law. In Soviet copyright, publication included ephemerally making available a work, such as through a performance, a speech, or a broadcast. However, for foreign works protected under Soviet law indirectly through international agreements (in particular the UCC), the definition of "publication" laid down by these agreements (typically the "making available of copies", which excluded ephemeral reproduction and required the physical fixation of a work) was used. The new law tried to resolve this confusion by using "disclosure" for the broader sense (making accessible of a work to the general public through publication, performance, broadcast, or any other means), and using "publication" generally only in the sense of distribution of copies of a work to the general public."

In broad terms this is all in line with international copyright law. Thus (if I'm interpreting this correctly), copyright on La Bayadere (1900 version), because it had been "disclosed" (ie. performed) during the composer's lifetime, extended to 70 years after his death (in 1917) -- thus to 1987.

I can only re-iterate that IMHO whatever "work" was required to make this version performable (if it's as "authentic" as they claim it to be), was not enough to give them full and legal copyright on the work, and thus the work is for all intents and purposes in the public domain.

But they do own the original score (in the physical ink-on-paper sense). So apart from physically keeping the scores and their orchestral parts under lock and key, I don't think that, if anyone decided to do a "reverse engineering" job (ie. use what is out on YouTube etc.) and re-assemble (as-close-as-is-possible) a full score (including lost act) that way, the Mariinsky would not have any recourse to copyright protection.

Morally, however, it shouldn't have to come to that. The "moral rights" (as defined in the same article), remains with the composer. And thus the Mariinsky (as the owners of the score) have a moral responsibility to further Minkus's reputation by making the score as widely available as possible (ie. by GETTING IT PUBLISHED).

(If you've gotten this far, for sticking with me!)

Wanted to add a couple of things to this.

1. Music, Arrangement, Edition

IMSLP is an online library of public domain sheet music where the copyright status of every submission is checked by an expert. They divide copyright claims neatly into three categories: the Music, the Arrangement, and the Edition.  The order of precedence is straightforward

     MUSIC > ARRANGEMENT > EDITION

The copyright holder of the music has claim over all three: the music, and any arrangements or editions of/based on it.

The arranger has claim on the particular arrangement and editions of/based on it.  The arranger has no claim on the music or other arrangements of it.

A editor has claim over that edition and anything based on it, but no claim on the music, any arrangements, or other editions.

There are a few other odds and ends. Collected Works covers things like anthologies. You have copyright on your own contributions to the volume (introduction, notes, etc), and any editing or arranging you’ve done to the included works, as well as the unique selection of individual pieces. Collected works grants no copyright on the music, arrangements or editions included in the collection.

Lastly, they grant a courtesy period of 25 years to publishers/editors of facsimile  or “urtext” editions without expressly acknowledging any copyright ownership of such editions. 

Edited September 19 by RhinoHaggis

[RhinoHaggis]

This makes it pretty easy to assess the broad outlines of the Kirov claim on la Bayadère, in spite of our lack of expertise.

The Mariinsky surely owns the document as property.

They have no copyright claim on the music. They have no claim on the arrangement, which they have reconstructed, not written themselves. Their claim as editor is tenuous since -again- the purpose of the edits is to reconstruct the music as it existed.  Inasmuch as the reconstructed document itself is original, it is impossible for them to be editors.

If they published a Mariinsky Theater Edition with notes, that might constitute an edition, but they would probably only have actual copyright on thei written text of the volume, any notes, etc.

The most likely status seems to be a compilation of manuscript, facsimile and Urtext… on which (according to IMSLP) there is no enforceable copyright, but it is courteous to respect for some short, fixed period.   IMSLP’s courtesy period of 25 years will pass in the next year or two.

[RhinoHaggis]

2. Licensing to the U.S. or another country.

U.S. copyright law does not recognize broadcast as a means of publication.

The U.S. is also notorious for having an extremely long copyright period, and generous extension options for copyright holders.

I live in the U.S.  The Mariinsky Bayadère poses a dilemma.  Say I went to the a Mariinsky and photographed it.  Would I be allowed to inject the photographes score into the public domain?  If this form is truly the original, and in this original form was never published I would probably have to talk to a copyright expert to find out if the U.S. would recognize this staged Mariinsky unveiling as first publication.  Just the fact of doubt could be all they want: prevent scores from appearing, keep it inaccessible, and either offer access to it and other Bayadère ressources for a fee: “buy the Mariinsky production of La Bayadère for your company”… or try to monetize the exclusivity with a recording deal or a world tour (say)