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mightybaldking said on March 14th, 2008 at 12:56 pm

That is just about the coolest piece of software I have ever seen.

I’m going to make a version of “My Heart Will Go On” out of C.C. DeVille guitar solos.

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Sage Freehaven said on March 14th, 2008 at 1:23 pm

Does this mean making mashups will be easier? Or, at the very least, making karaoke versions of songs?

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mightybaldking said on March 14th, 2008 at 3:50 pm

Sage Freehaven:

I suppose mash ups would be easier. If you want to mix “Unskinny Bop” (e-minor) with “We Built This City” (f major) you could use this to bring them both into the same key (although I don’t know if it can actually separate a song into 24 tracks and isolate the instruments.) — Note: I haven’t a clue what key these songs are in, so I made them up.

A better example as to what could be done would be taking the guitar solo from “Comfortably Numb” (one of the nicest guitar sounds ever recorded) and re-arrange it into the solo from “Freebird” (or even better, replace the lead riff in the entire song) All of a sudden, we’d have a listenable Lynyrd Skynyrd song.

How about taking Garth Hudson’s organ solo in “Chest Fever” and making “Light My Fire” sound a little less like it was played on a toy?

This is the simple stuff that can be done. The options are even better when you have access to studio tapes and can rejigger an entire part instead of making the musician record it again. — Say you recorded a song and you decide that it would be better in a minor key. This involves changing the chords from a C-E-G structure to a C-Eb-G. The problem is, that the guitar player ran off with the drummer’s wife, and isn’t coming back. No problem. Run the track through this software and fix it in post.

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I really don’t think this changes the legal situation for mashups, unfortunately. It might put the ridiculousness of the current rules into sharper relief, but they’re already so far beyond the pale that I don’t see why this would be the straw that breaks the camel’s back. In the U.S., at least, there’s no de minimis defense for samples: “the Copyright Act bars application of the de minimis doctrine in this class of works, with the result that even the copying of a single note could constitute infringement.Bridgeport Music, Inc. v. Dimension Films, (6th Cir. 2005)

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This software will not actually be of much use to the average person, because, as impressive as it is, it does not magically turn a stereo audio file into a multitrack file. And unless you have access to the original multitrack recording, where each instrument is isolated, most of the edits shown in the video will be impossible.

Also — I could write a minor-key arrangement of “Hot In Here” right now, without any technological tools, and without sampling any audio frames from the original recording, either. And it wouldn’t really matter what harmonic tweaks I made — so long as it was still called “Hot In Here” and had a melody that was recognizably similar to Nelly’s version, the copyright would not rest with me.

John Coltrane’s version of My Favorite Things is pretty damn transformative, but the estate of Rogers & Hammerstein are still the ones collecting all the royalties.

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Actually, DJA, that’s not entirely accurate, at least not in the United States. Sound recordings are differentiated from musical compositions under the Copyright Act. You can pay a statutory fee for a “cover license” on any song to record your own version of it; you just can’t perform it in public without negotiating a separate license.

Transformative adaptations of musical compositions have significantly more leeway than sound recordings, where the Bridgeport rule means zero tolerance. Jazz compositions in particular get more latitude in this regard (see, e.g., Newton v. Diamond, concerning a jazz flute sample in the beginning of a Beastie Boys song, I believe).

That’s not to say that you’d be allowed to write a minor-key version of a Nelly song and market it, but you wouldn’t be barred from doing so because your work was copyrighted or found to be an infringing copy, as you would if you’d sampled it; the court would probably just find that it was a derivative work that displaced the market for the original.

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You can pay a statutory fee for a “cover license” on any song to record your own version of it

Yes, I understand all that. But my point is that no matter how many liberties I take with my arrangement of an existing work — no matter how transformative it is — I don’t own any of that creative work, because arrangements of non-public domain works aren’t copyrightable.

So yeah, Nelly can’t stop me from releasing a 12-tone deconstruction of “Hot in Herre” — but he and his publisher get all of the mechanicals and performance royalties from my no doubt copious sales. Additionally, my understanding is that they also own the copyright to the arrangement I wrote. So if Nelly wants to record his own version of “Hot in Herre — The 12-Tone Remix,” he can do so without paying me a dime or giving me any credit. (At least, that is my understanding of current copyright law as it pertains to arrangements of existing works, but I’m a musician, not a lawyer.)

To go back to the “My Favorite Things” example, if someone samples a snippet of John Coltrane playing the melody to “My Favorite Things,” they would have to clear it with Atlantic Records (e.g., Warner), and they would have to clear it with the estate of Rogers & Hammerstein. But my understanding is that they would not have to clear it with Coltrane’s estate, even if the snippet in question was Coltrane’s improvisation and had nothing to do with the melody to “My Favorite Things.”

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And if someone ran the “My Favorite Things” sample through the Melodyne system and arranged it into a new melody, Rogers & Hammerstein might lose their cut, but the sampler would still have to clear it with Atlantic, right? I can’t see how this is much of a seismic shift. I’m a bit ignorant legally, though, so I may be missing some underlying issue or other.

The most significant impact that I see is what this will do to the demand for session musicians. Any company that owns a significant number of studio tapes is going to start leasing snippets to producers and artists. Why pay for studio time and a bass player when you can rejigger a recording Sara Lee made 10 years ago for a fraction of the cost?

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The most significant impact that I see is what this will do to the demand for session musicians. Any company that owns a significant number of studio tapes is going to start leasing snippets to producers and artists. Why pay for studio time and a bass player when you can rejigger a recording Sara Lee made 10 years ago for a fraction of the cost?

That is FUCKING HORRIFYING, but yes, you are probably correct.

I really wish the AFM was a more effective union, because they need to get on this. Instead of hiring Sara Lee for a session, you just buy her basslines from the owner of the studio tapes and re-rhythmize/re-pitch them? And Ms. Lee gets NOTHING for this? Oy.

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So yeah, Nelly can’t stop me from releasing a 12-tone deconstruction of “Hot in Herre” — but he and his publisher get all of the mechanicals and performance royalties from my no doubt copious sales.

No, you’d get all the sales. You just wouldn’t be able to perform it live.

Additionally, my understanding is that they also own the copyright to the arrangement I wrote.

Well… sorta. They own copyright in the portion that you used, certainly. It’s kind of unclear whether the “tainted work” doctrine that applies to most derivative works also applies in the case where there’s de facto no infringement because of a compulsory license. It’s kind of a stupid doctrine to begin with.

Probably, what would happen is that if he created his own version independently, that’d be held to be a derivative work of his original version, not your version. However, what he can’t do is copy your sound recording exactly and market that — that would violate the no-de-minimis holding in Bridgeport. But he probably gets a lot of leeway with pretty much everything else.

To go back to the “My Favorite Things” example, if someone samples a snippet of John Coltrane playing the melody to “My Favorite Things,” they would have to clear it with Atlantic Records (e.g., Warner), and they would have to clear it with the estate of Rogers & Hammerstein. But my understanding is that they would not have to clear it with Coltrane’s estate, even if the snippet in question was Coltrane’s improvisation and had nothing to do with the melody to “My Favorite Things.”

Well, the situaton is confusing because of the weird and somewhat incoherent distinction between recordings and compositions. So much of it depends on whether you’re sampling or playing it yourself, and whether it’s a recording or a public performance, etc.

I actually imagine that you would have to clear it with both. Coltrane’s estate owns the license to the recording. But I don’t know what the baseline sublicensing rights for cover licenses are, so you might have to license the composition rights from Rogers & Hammerstein’s estate. In any case, neither would have to clear it with the other, no.

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See, copyright law is awesome.

To bring things back to turf slightly more appropriate to this blog: should the statues seen in the hotel lobby in Batman Returns be considered sculptural or architectural works? Warner Brothers actually got sued over this.

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No, you’d get all the sales. You just wouldn’t be able to perform it live.

No, no, not album sales. That wasn’t what I was talking about. Obviously, if you self-release a record of covers, you get all the sales — less the mechanicals you (being the “record company,” seeing as you are putting it out yourself) must pay to the original composers at the statutory rate.

My point was that it doesn’t matter if your cover version is a slavish not-for-note recreation or a radical deconstruction, the Harry Fox Agency is still collecting mechanicals on behalf of the original composer. And while if it’s self-released, then you own the copyright on the sound recording itself, my understanding is that the copyright for the musical ideas contained therein always rests with the original composer, no matter how much of a departure your cover version might be.

For example, to revisit Coltrane’s “My Favorite Things” once more, what would happen if the estate of Rogers & Hammerstein were to hire a Coltrane soundalike to recreate Trane’s famous recording note-for-note and release it themselves? My bet is, Warner has no recourse because the original recording itself was not sampled, only recreated. And the Coltrane estate has no recourse either, because Coltrane didn’t write “My Favorite Things,” so he does not own his arrangement of that tune, nor his improvisation over its structure, even though the improvised bits far outweigh the written bits.

And as for ASCAP/BMI purposes, radio airplay counts as a “public performance,” and performers don’t get royalties for public performances — only the composer and lyricist do. This is why Duke Ellington’s first manager, Irving Mills, is listed as a co-composer on many of Duke’s hits — he had nothing to do with creating the music, but that’s how he got his cut.

Coltrane’s estate owns the license to the recording.

No, they don’t. Atlantic Records (i.e., Warner) owns the license to recording. Coltrane’s estate only owns the copyright to Coltrane compositions, not to Coltrane recordings of other people’s compositions. Except under very special cirumstances, albums are made as “work for hire,” which means the record company owns the copyright to the sound recording, not the artist.

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No, no, not album sales. That wasn’t what I was talking about. Obviously, if you self-release a record of covers, you get all the sales — less the mechanicals you (being the “record company,” seeing as you are putting it out yourself) must pay to the original composers at the statutory rate.

Of course, but those aren’t royalty rates — i.e., they’re not percentages. The statutory fee for a cover license to a given work is a one-time flat charge.

For example, to revisit Coltrane’s “My Favorite Things” once more, what would happen if the estate of Rogers & Hammerstein were to hire a Coltrane soundalike to recreate Trane’s famous recording note-for-note and release it themselves? My bet is, Warner has no recourse because the original recording itself was not sampled, only recreated. And the Coltrane estate has no recourse either, because Coltrane didn’t write “My Favorite Things,” so he does not own his arrangement of that tune, nor his improvisation over its structure, even though the improvised bits far outweigh the written bits.

Correct, with regards to Warner — they have no recourse, because they only potentially hold copyright in the recording.

Coltrane’s estate, however does have theoretical recourse, though they wouldn’t get anything in all likelihood, because this is only a de minimis variation from Coltrane’s composition, and — as mentioned — that’s a valid defense for compositions, though it isn’t for recordings. Other factors possibly cutting against them would be that (a) jazz compositions tend to have slightly lest robust coverage because of their supposedly “improvisational” nature (see again Newton v. Diamond — of course, this kind of does make sense) and (b) the interplay between the derivative-works and compulsory-license principles, which as far as I know hasn’t really been tested since this is a pretty out-there situation. That is, in most cases concerning derivative works, the secondary work is “tainted” and gains no protection, which wouldn’t be the case here. Having a license in play — particularly a statutorily-compelled license — would be a novel situation.

That said, Coltrane’s estate would at least have an argument — if the copy was note-for-note, they would be able to prove infringement, and could have a claim on either a statutory-damages theory, or on the theory that it was Coltrane’s composition that made the work so desirable.

And as for ASCAP/BMI purposes, radio airplay counts as a “public performance,” and performers don’t get royalties for public performances — only the composer and lyricist do. This is why Duke Ellington’s first manager, Irving Mills, is listed as a co-composer on many of Duke’s hits — he had nothing to do with creating the music, but that’s how he got his cut.

Actually, copyright in a musical composition obtains in both the music and the lyrics. I believe that the issue here may be that the bifurcation between compositions and recordings didn’t come about until 1972, perhaps in response to this very problem.

This is also not generally true in the era of digital radio — they had to have an exception put in the Copyright Act for broadcast purposes, since reproductions nowadays are often digital instead of “performed” by playing analog records. (Go figure.) §112 and §118(d) of the Copyright Act define these broadcasts as “copies” but exempt them from liability. There is a compulsory license under §118 that charges a royalty rate (not a one-time fee) which is set every five years under the supervision of the Librarian of Congress.

(This — in combination with the work-for-hire problem — is actually still a live issue with regard to termination rights, since the status of recording artists has evolved considerably since the Copyright Act was passed and the assignment status of their works is somewhat unclear. The recording industry tried to sneak in a “fix” to this issue in the Satellite Home Viewer Improvement Act a few years ago as a “technical amendment,” but it was subsequently not determined to be anything remotely like a technical amendment and nullified, so the problem is still up in the air.)

No, they don’t. Atlantic Records (i.e., Warner) owns the license to recording. Coltrane’s estate only owns the copyright to Coltrane compositions, not to Coltrane recordings of other people’s compositions. Except under very special cirumstances, albums are made as “work for hire,” which means the record company owns the copyright to the sound recording, not the artist.

I do have a bit of formal knowledge here and am somewhat familiar with the work-for-hire doctrine. 😉 This is partially correct.

Technically, what you say about works-for-hire is not exactly true — an artist owns the copyright in their compositions and their recordings as a default rule, and the copyright is assigned to their record company ab initio via a contract (or to ASCAP, in the case of the composition, at least as I understand it).

So technically, the assignment is the “special circumstance,” commonplace though it may be in the record industry. In any litigation, the burden is in fact on the assignee to prove that. (This is actually particularly important in this example, because in many cases — especially concerning older works — the artist or their estate retains a termination right that kicks in between thirty-five and forty years after creation that lets them unilaterally terminate and renegotiate the license. There’s been some backfilling here, but it’s also still very much a live issue.)

(Mmm, copyright.)

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I, being a square blah blah blah, often side with the copyright holders and I am suspicious of loose restrictions on derivative works. That said, most art of this vein that I encounter (collages, mash-ups) are done with no expectation of material gain by the artists, so I think they’re reasonable and in the bounds of fair use. Sampling or appropriation of visual art in commercially-oriented works make me a bit more wary of anti-copyright rants (not accusing Mr. Bird of such things in the least), but I think laws are already set up to govern those. Still, it’s a case of the need for a culture of grace (not from the law, but from the plaintiffs) – many lawsuits over parodies, mash-ups, appropriations, etc. shoot themselves in the foot because they doggedly put commerce over art when they’ve already won the commerce game.

Blah, blah, blah…

But this program is offering more than just allowing folks to mash-up two songs (where it becomes rather unreasonable to think they deserve much for that resulting piece of art, other than credit). This will allow non-musicians (instrumental, that is) to construct songs from the ground up that will have little to no relation to the original works from which their elements were excised. This is exciting, and should require much deliberation from world nations before they penalize small artists seeking no material gain for creating labors of love, as well as penalizing a new field of artists who have created works whose roots are untraceable to the average ear.

Once again, this program doesn’t simply enable mash-ups. It enables you to cut and paste songs beyond recognition, then build new ones. Are you a guitarist and vocalist who can’t play any other instruments? Great, this program will be for you – and no one’s copyright need be infringed.

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Actually, copyright in a musical composition obtains in both the music and the lyrics.

Um, yeah — ain’t that implied what I said? “[P]erformers don’t get royalties for public performances — only the composer and lyricist do.”

Irving Mills did not write lyrics, either. He made no musical contributions whatsoever. He was just Ellington’s manager, but part of his deal with Ellington was that he was to be credited as a co-composer of Duke’s tunes so he could get a slice of Duke’s ASCAP royalties. This kind of arrangement is still not uncommon, although today it normally invovles artists who are, ahem, not really known for their songwriting skills to still get a cut.

Coltrane’s estate, however does have theoretical recourse, though they wouldn’t get anything in all likelihood, because this is only a de minimis variation from Coltrane’s composition

But “My Favorite Things” is not a Coltrane composition. The problem is that his original creative work (the solo improvisation) is taking place within the framework of a piece of music that already belongs to someone else. Seems to me that this would make it much more difficult for the Coltrane estate to argue infringement, because it’s infringement of a derivative work that they don’t own. If the Coltrane soundalike were instead making a recreation of “Giant Steps,” then the estate would be on much firmer ground.

Going back to Melodyne, I think the primary effect is going to be putting a lot of studio musicians out of work. Leaving aside the “buy exisiting multitracks from the studio” scenario discussed above, probably the more like situation goes like this: instead of hiring hotshot studio bassist to come in and lay down tracks on every tune on the record, hire him or her for the minimum call, then use his notes from that one track as the source to build the basslines for all the other tracks. Then never hire them again, because you can always just go back to their notes to build new basslines.

It won’t sound nearly as good, but it will be a LOT cheaper.

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Um, yeah — ain’t that implied what I said? “[P]erformers don’t get royalties for public performances — only the composer and lyricist do.”

I misread :)

But “My Favorite Things” is not a Coltrane composition. The problem is that his original creative work (the solo improvisation) is taking place within the framework of a piece of music that already belongs to someone else. Seems to me that this would make it much more difficult for the Coltrane estate to argue infringement, because it’s infringement of a derivative work that they don’t own.

Yeah, like I said, it’s pretty unclear. In most cases, a derivative work is sort of part and parcel of the original, and the fact that it’s got distinct elements is irrelevant. The fact that it’s an unauthorized derivative work means that the entire thing is subsumed and there’s no right of action against the original copyright holder. This is an aberration from the standard doctrine of copyright which says that all creative works are protected (and to some extent acknowledges that no work is ever entirely original). It’s a bad rule, for reasons I won’t get into, but the point is that there’s some disconnect here.

But the underlying point is that the Coltrane estate could never argue infringement of the portion of the work that he derived under any circumstances. However, the part of the work that he added is his creation and he has copyright on it. (At some level, all works are derivative. The question is always only whether there’s a right of action or a claim.)

In the patent regime, the issue would be resolved differently. The fact that your patent might require another patent in order to function doesn’t prevent you from obtaining a patent for your invention. In that case, neither you nor the other inventor would be able to use your invention without an agreement — it’s called a “blocking patent.” The notion is that there’s a mutual incentive to cross-license, and in combination with declaratory judgments, etc., for the most part it works pretty well.

Personally, I have no idea why the doctrine doesn’t cross-apply to the copyright regime. (Well, that’s not entirely true — the reason is because of Hollywood and the 9th Circuit, but like I said, it’s not worth getting into and it still makes no sense.) Even the “tainted works” doctrine doesn’t seem to account for the situation where the derivative copyright is produced under a valid license and therefore isn’t tainted. Potentially, I guess you could call it a joint work. But as far as I know, there’s no definitive answer to this question.

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