New Recordings Without the Hum(ming)

by on May 16, 2007 · 20 comments

I subscribe to Stereophile magazine. Every month I take great pleasure in reading the latest product reviews, particularly those involving either of the following:

  1. Unobtainium plated interconnects sheathed in endangered panda skin for optimum voodoo-shielding
  2. Any devices employing any form of magnetic levitation technology

While thumbing through the June issue which arrived yesterday, I came across an ad for a new classical recording. It’s a Zenph Re-Performance™ of Glenn Gould’s 1955 recording of Bach’s Goldberg Variations.

From the ad:

Zenph takes audio recordings and turns them back into live performances, precisely replicating what was originally recorded. The software-based process extracts and encodes the details of how each note was played. The encoding is played back on an acoustic grand piano allowing listeners to experience the performance as if they were in the room when the original recording was made. This re-performance is then recorded afresh using the latest recording techniques. This release features new recordings of that experience specifically designed for surround-sound, stereo or headphone listening.

What are the copyright implications of doing this? A few things to consider:

  1. The Goldberg Variations are obviously in the public domain. Gould’s 1955 recording, as a derivative work, is not.
  2. Nothing you hear on this recording is in any way sampled. No audio from the 1955 recording persists.
  3. The original recording was essentially traced, so the exact timing and velocity of each note matches Gould’s performance perfectly.
  4. It’s being marketed as Gould’s 1955 performance.

Please post any thoughts you might have to the comments.

  • http://www.cato.org/people/harper.html Jim Harper

    I’m going to take a stab at it, just to get the conversation started. The issue is whether the copyright in Gould’s recording is violated – not, obviously, the public domain Goldberg Variations.

    I think the digital “tracing” of it is the creation of a derivative work, something like would be created if you watched a television show and wrote down the movements of the actors to create a “movement script” of the show. The execution of the “tracing” on a piano is a performance of the derivative work, which becomes another copyrightable work when fixed in a tangible medium of expression by recording.

    Given the creation of the derivative “tracing,” I think Zenph owes Gould. I don’t see how fair use would apply to Zenph’s sales of recordings which compete fairly directly with Gould’s recording – though it certainly could apply in other cases.

  • http://pj.doland.org/ PJ Doland

    Would you apply the same standard to another performer’s rendition if it was influenced by Gould’s 1955 recording?

  • http://www.cato.org/people/harper.html Jim Harper

    “Remembering” doesn’t count as fixation in a tangible medium of expression, so a performer who remembers the way the Gould recording sounds has not made a derivative work. This breaks the analogy to the Zenph thing.

    The remaining interesting question is whether the performance of a piece in a way that mimics Gould’s techniques violates Gould’s copyright in the prior recording. I don’t think doing so is a public performance of the earlier recording, which would violate Gould’s rights. It’s a public performance of the public domain work.

    But making a recording of a piece (remember the “fixation” requirement) that mimics Gould techniques – techniques distinctive enough to the Gould recording and not dictated by the score, common fingering techniques, etc. – might violate Gould’s copyright in the prior recording. I think it could be a derivative work.

    (Just going on my faded recollection of copyright law – happy to hear from more people who are more current on the law and more insighgtful.)

  • http://mcgath.blogspot.com Gary McGath

    It’s a high-tech piano roll!

  • http://www.cato.org/people/harper.html Jim Harper

    I’m going to take a stab at it, just to get the conversation started. The issue is whether the copyright in Gould’s recording is violated – not, obviously, the public domain Goldberg Variations.

    I think the digital “tracing” of it is the creation of a derivative work, something like would be created if you watched a television show and wrote down the movements of the actors to create a “movement script” of the show. The execution of the “tracing” on a piano is a performance of the derivative work, which becomes another copyrightable work when fixed in a tangible medium of expression by recording.

    Given the creation of the derivative “tracing,” I think Zenph owes Gould. I don’t see how fair use would apply to Zenph’s sales of recordings which compete fairly directly with Gould’s recording – though it certainly could apply in other cases.

  • http://angrydictator.com PJ Doland

    Would you apply the same standard to another performer’s rendition if it was influenced by Gould’s 1955 recording?

  • http://www.cato.org/people/harper.html Jim Harper

    “Remembering” doesn’t count as fixation in a tangible medium of expression, so a performer who remembers the way the Gould recording sounds has not made a derivative work. This breaks the analogy to the Zenph thing.

    The remaining interesting question is whether the performance of a piece in a way that mimics Gould’s techniques violates Gould’s copyright in the prior recording. I don’t think doing so is a public performance of the earlier recording, which would violate Gould’s rights. It’s a public performance of the public domain work.

    But making a recording of a piece (remember the “fixation” requirement) that mimics Gould techniques – techniques distinctive enough to the Gould recording and not dictated by the score, common fingering techniques, etc. – might violate Gould’s copyright in the prior recording. I think it could be a derivative work.

    (Just going on my faded recollection of copyright law – happy to hear from more people who are more current on the law and more insighgtful.)

  • http://mcgath.blogspot.com Gary McGath

    It’s a high-tech piano roll!

  • Brian Moore

    “”Remembering” doesn’t count as fixation in a tangible medium of expression”

    But what if I have a really, really good memory, and flawless, precise fingering technique?

    I guess it would be infringement, especially if they are marketing it as “Gould’s 1955 performance.”

  • Brian Moore

    “”Remembering” doesn’t count as fixation in a tangible medium of expression”

    But what if I have a really, really good memory, and flawless, precise fingering technique?

    I guess it would be infringement, especially if they are marketing it as “Gould’s 1955 performance.”

  • http://www.techliberation.com/ Tim Lee

    I agree with Jim. It seems like a derivative work, and I’m having trouble thinking of a plausible fair use defense.

  • http://www.techliberation.com/ Tim Lee

    I agree with Jim. It seems like a derivative work, and I’m having trouble thinking of a plausible fair use defense.

  • http://www.cato.org/people/harper.html Jim Harper

    @Brian – The concept of “tangible medium of expression” may fall apart as a distinction as the functioning of the brain is better understood, but its the distinction the law currently makes. It’s objectively verifiable that there is a copy made when it’s embodied in a tangible medium of expression. When it’s in the brain, it’s not a copy for purposes of copyright.

  • http://www.cato.org/people/harper.html Jim Harper

    @Brian – The concept of “tangible medium of expression” may fall apart as a distinction as the functioning of the brain is better understood, but its the distinction the law currently makes. It’s objectively verifiable that there is a copy made when it’s embodied in a tangible medium of expression. When it’s in the brain, it’s not a copy for purposes of copyright.

  • http://www.joegratz.net Joe Gratz

    Don’t forget 17 USC 114(b) — a copyright holder’s rights in a sound recording “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”

  • http://www.joegratz.net Joe Gratz

    Don’t forget 17 USC 114(b) — a copyright holder’s rights in a sound recording “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”

  • Yves

    One can not protect his/her creations. Once set free, they are born into our world, and like any other living system in a competitive environment, our art will either thrive or dwindle. Our art does not need our protection. I also does not seek to reward us, creators, not any more than any of our biological offsprings do. Art competes with the creator. Money and property are illusions, and so are the schemes used to attach value to an Art.

  • Yves

    One can not protect his/her creations. Once set free, they are born into our world, and like any other living system in a competitive environment, our art will either thrive or dwindle. Our art does not need our protection. I also does not seek to reward us, creators, not any more than any of our biological offsprings do. Art competes with the creator. Money and property are illusions, and so are the schemes used to attach value to an Art.

  • http://www.weta.org/fm/blog jfl

    Zenph (Senf = Mustard) works on this together with Sony/BMG/RCA and licenses the performances, which either makes this discussion highly theoretical, or answers it.

    jens

  • http://www.weta.org/fm/blog jfl

    Zenph (Senf = Mustard) works on this together with Sony/BMG/RCA and licenses the performances, which either makes this discussion highly theoretical, or answers it.

    jens

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