How do you claim copyright in a piece of music composed in the early 18th century? Easy, if you're musicologist Lionel Sawkins: you claim copyright in your arrangement of a the piece. Sawkins took incomplete manuscripts and edited them into shape: reconstructing his best guesses at missing viola parts and reconciling differences in different versions of the piece. And now he's suing a recording company that has released CDs based on performances of his arrangements for copyright infringement.
Like many other disputes in copyright policy, this is unfortunately one of those places where the cases at each end of the spectrum are compellingly easy. "Twinkle Twinkle Little Star" may be a public domain tune, but there's no good reason why a set of variations on the tune (like Mozart's ) shouldn't be copyrightable. On the other hand, I shouldn't be able to get a copyright in Beethoven's Fifrth by having the opening phrase played by the brass, rather than by the strings. You have to draw the line somewhere, and that somewhere will involve difficult judgment calls.
As the article points out, this case is even messier because Sawkins's reconstruction bears a close resemblance to an earlier reconstruction from the 1960s. Sawkins claims that the harmony "he harmony severely restricted his options, as they had Paillard's." But this argument cuts against Sawkins, because to the extent that the harmony dictates a result, it means that Sawkins isn't adding any creativity of his own. And if the arrangement doesn't reflect his creativity, he shouldn't get a copyright at all.
According to the article, the dispute involved a CD that sold 3,000 copies, generated £500,000 in legal fees, and "could easily have been avoided." That's copyright for you.
(Link thanks to boingboing.)