Dead Musicians, New Performances

Zenph Studios is a North Carolina company that specializes in a very special area: what it calls re-performances of previously recorded performances. Its first product, a re-performance of Glen Gould’s famous 1955 Bach Goldberg Variations, is available here. I have had a number of versions of this famous performance: the LP; the original CD release; and, the recent triple CD set which couples the 1981 recording of the variations along with out-takes and commentary by Gould, available here. I highly recommend the triple set for Gould fans. His explanation for the tempi is insightful, and his off-beat humor is much in evidence (for good or ill).

The reviews of the Zenph recording of the 1955 performance on Amazon.com are decidedly mixed and I leave it others to form their own opinion after listening to it. One great advantage of the Zenph recording (aside from not having any of Mr. Gould's humming along) is that (unlike the other Gould releases), it is on the Hybrid SACD format, an amazing format which the record labels strangled on birth (along with DVD Audio).

Zenph, through its software attempts to reproduce the experience of hearing the original recording live. In the case of the Gould Goldberg variations, we are talking about a studio recording in monaural. The advantage then of the Zenph recording is that it attempts to expand the ambience of the sound experience. Some reviewers have applauded Zenph’s effort in this respect, while others deride it as artificial and note the differences between the piano used by Gould and by the Zenph engineers (e.g., a Yamaha Disklavier Pro grand). My own view is that a thousand flowers should bloom: the more the better, with everyone free to choose whatever version(s) they prefer.

Zenph made headlines in at Shrine Auditorium Los Angeles last night with a live recording of its re-performance of late jazz icon Art Tatum’s 1949 epic album "Piano Starts Here." Here is a link to Zenph’s description of the event. Zenph notes: “Jazz pianist Art Tatum was recorded live in Los Angeles on April 2, 1949. That recording is available today on the Sony CD Piano Starts Here. “He was the greatest soloist in jazz history, regardless of instrument,” jazz critic Leonard Feather wrote in the liner notes. It is one of the best loved jazz albums ever, and has been in print for more than fifty years”.

I am among the legions of people who are in awe of Tatum and I possess quite a number of the hissy, compressed Brunswick recordings for the sheer brilliance of Tatum’s playing buried somewhere in the recordings. If Zenph can make Tatum come alive and without the almost fatal defects in the originals, I’ll get down on my knees and praise them. The Tatum event led to an editorial in the Los Angeles Times Sunday by the always excellent Jon Healey, available here. (HT to Mr. Healey for the story, too). Mr. Healey observes:

Zenph, which also revived pianist Glenn Gould's 1955 recording of Bach's Goldberg Variations, has ambitions that stretch beyond re-performed piano works. The company's co-founder, John Q. Walker, says the technology will eventually be extended to other instruments -- and voices. And once enough data are gathered about a performer, living or dead, that person's distinctive playing or singing style could be applied to material he or she never recorded. Imagine adding Eddie van Halen's guitar pyrotechnics to your band's sound, without needing him in the studio. Or paying him. This is heady stuff, and frankly a little creepy. It also suggests a battle to come over who, if anyone, owns a playing style. Lawmakers didn't anticipate technologies such as Zenph's when they wrote the statutes governing copyrights and other intellectual property, so it's not clear how the courts might rule. Nor do we know how these technologies will develop and be used. The only sure thing is that because of Zenph, we have a lot more useful knowledge about how Art Tatum played the piano -- knowledge that could conceivably lead to a panoply of new creative works. As a result, Tatum's signature cascades of sound will reverberate out of the Shrine Auditorium long after his computerized self has left the building.
From a copyright perspective, there are a few points to keep clear. The Gould and Tatum re-performances are being done in conjunction with the labels and (at least in the case of Gould), the artists’ estates. They also involve recapturing the original sounds. The example of Eddie van Halen given by Mr. Healey, by contrast, is both hypothetical and would not involve recapturing the original sounds: instead, it would reflect an educated guess about how Mr. van Halen would perform something he had never performed. In such a case, there are no copyright implications at all. Section 114(b) of the Copyright Act states in relevant part for both the Gould/Tatum and van Halen scenarios:

The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. … The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

Under the final sentence, countless covers of performances have been permitted (such as Smith’s version of the Band’s “The Weight” in the original release of the soundtrack to Easy Rider, after The Band refused to grant permission to use their original. In the van Halen hypothetical there would be no original performance at all, and thus no infringement of a sound recording. Style has never been protected under copyright, and in the case of popular music, insuperable problems would be encountered. As wikipedia's entry on Tatum notes some of the dangers:

Tatum drew inspiration from his contemporaries James P. Johnson and Fats Waller, who exemplified the best stride piano style. Tatum's meteoric rise to the top began with his appearance at a cutting contest in 1933 that included Waller and others. Standard contest pieces included Johnson's "Harlem Strut" and "Carolina Shout," and Fats Waller's "Handful of Keys." Tatum was victorious, presenting his arrangement of "Tiger Rag." This was considered by Harlem musicians to be Tatum's ultimate contribution to stride piano, and taken as the most astonishing and original that would probably ever appear, in many respects, despite being an arrangement. … From the foundation of stride, Tatum made a quantum leap in terms of technique and theory, and honed a new style that would greatly influence later jazz pianists, such as Thelonious Monk, Oscar Peterson, Billy Taylor, Bill Evans, and Chick Corea. Tatum's extensive use of the pentatonic scale, for example, may have inspired later pianists to further mine its possibilities as a device for soloing. Moreover, as long as "new" performances via Zenph in the style of artists who never performed the pieces is marketed accurately, it is doubtful any state laws, such as right of publicity, would be violated, although I confess readily to not being an expert in state laws.