tag:blogger.com,1999:blog-12505562.post8204030772297433500..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Dead Musicians, New PerformancesWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-12505562.post-11747572820434834292007-09-25T12:00:00.000-04:002007-09-25T12:00:00.000-04:00heady and creepy...With respect to WKRP and Easy R...heady and creepy...<BR/><BR/>With respect to WKRP and Easy Rider, I get that. Sometimes we want to recreate our experiences with certain sound recordings and 114 gets us there. <BR/><BR/>However, "sometimes, dead is better." Do we trust what comes reverberating out of the Shrine Auditorium represents things as they were? What, exactly, are we preserving? Mark Katz's book, Capturing Sound: How Recording Changed Music, documents how recording changed audience expectations and performance styles when performances were altered to accommodate the recording process. The late Dwight Conquergood of Northwestern University also argued that certain fixations ("texts" to Conquergood) are used as "decoys" by some groups to lure away prying eyes of outsiders. Obviously, Conquergood wasn't exactly coming from any music scene. His concerns were ethnographic. Still, I think both these examples highlight a certain unreliability of any fixation no matter what its legal status. As a result, I agree that any attempt to protect style is problematic; because any protection based on fixation or use wouldn't be the kind of protection that fosters learning and sharing. I suppose one might argue this kind of protection encourages the production of new works (decoys?) but I think it would be for the wrong reasons. The Zenph technology is very interesting but I think it's important to know what we get out of it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-52752385531743823532007-09-24T22:21:00.000-04:002007-09-24T22:21:00.000-04:00Thanks, Dean, I wish I had the money to still be a...Thanks, Dean, I wish I had the money to still be a vinyl guy. I have never heard even a SACD on a great system ($100,000 +) that replicated the space and warmth of vinyl on a very good system I heard 30 years ago. Reports that recordings of music are now being dumbed down from the beginning to take into account the fact that they will be listened to as an MP3 file, makes me happy I do remember what recorded music used to sound like.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-52836966138553873992007-09-24T21:51:00.000-04:002007-09-24T21:51:00.000-04:00The Sony triple disk Gould set is a gem, but so is...The Sony triple disk Gould set is a gem, but so is the original vinyl. I have a fundamental problem with proponents of technology purportedly allowing one "to reproduce the experience of hearing the original recording live," but it's part of a larger audiophile rant I won't pursue. But keep those tizzy Tatums. You are no doubt aware of the remarkable <A HREF="http://www.marstonrecords.com/" REL="nofollow">Ward Marston</A>, who transcribes old vocal recordings to CD. He has little concern for reducing surface noise, yet his work wonderfully delivers the glory of these old performances.<BR/><BR/>But if you gotta have Eddie Van Halen--that is, a superb parody of EVH--see <A HREF="http://www.youtube.com/watch?v=CXbCt_1mrak" REL="nofollow">this</A>! The fellow who created this series of mash-ups is a comic genius.Dean C. Rowanhttps://www.blogger.com/profile/11846388304210211279noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-44213776503281771502007-09-24T20:33:00.000-04:002007-09-24T20:33:00.000-04:00Chris, creating sheet music of someone else's comp...Chris, creating sheet music of someone else's composition or performance does not result in a copyrightable composition; it is merely one form of fixation.<BR/><BR/>Joe, I may misunderstand the technology, but at bottom, my view of the Gould situation is that because they are starting with the original actual sounds, any manipulation of them is not an independent fixation.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-71920953471111562792007-09-24T20:22:00.000-04:002007-09-24T20:22:00.000-04:00Setting aside the musical-work question, why would...Setting aside the musical-work question, why wouldn't the Gould re-performance be an independent fixation that merely simulates the sound of the original recording? My understanding of the process used by Zenph is that they use a computer (and their own skills) to reduce the Gould recording to a stream of notes (MIDI data), which is then played back by a player piano and recorded. This is markedly different from the usual case of a sound recording "restored" by technological means, in which the actual audio from the original is copied, in cleaned-up form, on the new recording. It would seem to be more analogous to asking a talented keyboard mimic to listen to the Gould recording her playing it on the piano. Does your opinion depend on the fact that the intermediate copy here -- the MIDI data -- is itself a phonorecord?Joseph Gratzhttps://www.blogger.com/profile/10780282710379893036noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-17874285898558548822007-09-24T19:32:00.000-04:002007-09-24T19:32:00.000-04:00If Tom Waits' gravely voice is protected why not T...If Tom Waits' gravely voice is protected why not Tatum's stride? It's just a language thing. A jury can easily understand the attempt to copy the distinctive voice of Waits but is far less likely to understand a distinctive piano playing style unless heavily educated in music composition, performance, practice and theory over the course of a couple of weeks.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-64881743618993817262007-09-24T17:24:00.000-04:002007-09-24T17:24:00.000-04:00Today, we have machines which will take this infor...Today, we have machines which will take this information (or some part of it) as the pianist is playing and create sheet music. Voila, a new musical work. I would argue that if the pianist adds enough creative expression to an existing piece, the new musical work that comes out will be a derivative of the original work. And, if the original was in the public domain, a new copyright springs in the derivative work.<BR/><BR/>So, at some point, there is a computer data file created which contains information about the attack and sustain of each key on Gould's keyboard, when he pushed each pedal and so on. I suggest that these files are even more expressive than the sheet music, as they contain much more information.<BR/><BR/>So, I suggest that there is a new fixation, and Gould's performance is copyrighted as a musical work.<BR/><BR/>By analogy, suppose that a musician performs some free-form jazz, which he records, creating a sound recording. 20 years later, he listens to the recording and transcribes, note-for-note, exactly what he played 20 years earlier. Doesn't he now have a copyright in a musical work? (Or is the musical work fixed at the same time as the original sound recording? This is one of the corners of copyright law I don't recall very well.)Christopher Fulmerhttps://www.blogger.com/profile/16543538534660568711noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-48900710927209269232007-09-24T17:02:00.000-04:002007-09-24T17:02:00.000-04:00"Anon: But what if the label on the recording made..."Anon: But what if the label on the recording made clear there was no sponsorship or association, and that this was someone else's guess of what he would sound like?"<BR/><BR/>Good point...that would certainly diminish the likelihood of confusion. However, a savvy plaintiff might also claim dilution, in which case issues relating to actual confusion would become moot. The question would then be whether labels at the point of sale were adequate to prevent dilution. I think that the potential of radio play would diminish any effect the labeling might have.<BR/><BR/>I do not know whether these issues have been addressed by a court, so forgive me if I am raising mundane issues. In any event, this is certainly an interesting issue to ponder.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-19768838309278771782007-09-24T16:44:00.000-04:002007-09-24T16:44:00.000-04:00Anon: But what if the label on the recording made ...Anon: But what if the label on the recording made clear there was no sponsorship or association, and that this was someone else's guess of what he would sound like?William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-10999335050513259102007-09-24T16:32:00.000-04:002007-09-24T16:32:00.000-04:00In regards to the Van Halen example, I agree that ...In regards to the Van Halen example, I agree that copyright concerns are likely irrelevant, but wouldn't there be some potential trademark issues relating to false endorsement/attribution? It seems to me that use of EVH's distinctive style of guitar would raise the same issues brought up by Tom Waits in his successful suit against Frito-Lays (978 F. 2d 1093).<BR/><BR/>Dilution might also be an issue...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-77954985706455688802007-09-24T15:23:00.000-04:002007-09-24T15:23:00.000-04:00Chris, I am suggesting that the Gould re-performan...Chris, I am suggesting that the Gould re-performance is covered by the first part of 114(b): it is not an independent fixation, but a manipulation of the actual sounds. Whether it is a derivative sound recording of the original sound recording doesn't matter since 114(b) covers both rights in the Gould re-performance situation.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-16523771561626838582007-09-24T14:54:00.000-04:002007-09-24T14:54:00.000-04:00So, are you suggesting that the Zanph recording is...So, are you suggesting that the Zanph recording is an example of the first part of 114(b) (an "indirect recapture of the actual sounds fixed in the recording") or the second part (the "making . . . of another sound recording that consists entirely of an independent fixation of other sounds.")?<BR/><BR/>One view is that you may not actually get there: arguably, the capture of Gould's fingerings, pedal movements, and so creates a new musical work, derivative of the original Bach piece. (Can anybody deny that he added significant creative expression?) <BR/><BR/>So, for example, when a radio station plays the Zanph recording, they are no longer playing a sound recording of Bach (which they could do without a license), but a sound recording of Gould's derivative version of Bach. And, for that, the station would need a license.Christopher Fulmerhttps://www.blogger.com/profile/16543538534660568711noreply@blogger.com