Why player pianos have a role to play – The Irish Times – Tue, Apr 24, 2012.  This article in the Irish Times talks about the work of American composer Conlon Nancarrow,* the centerpiece of a two-day-long concert event in London last weekend.  Nancarrow wrote about 50 studies for player piano.  Unlike some of the other composers (and instrument inventors) in the field, Nancarrow wasn’t interested in endowing player pianos with a more human-like sound.  Instead, he wanted to explore the complexities that only become possible by removing the ten-fingered primate from the equation.  ”Equation” was often the accurate term: canons and counterpoints were often related by irrational-number ratios.  And yet Nancarrow once said:

“My essential concern, whether you can analyze it or not, is emotional; there’s an impact that I try to achieve by these means.”

Sounds like art, doesn’t it?  Like, oh, a work of authorship or something?  And yet player-piano rolls were initially not treated like other musical compositions under U.S. copyright law.  Every student of copyright law has read White-Smith Music Pub. Co. v. Apollo Co, 209 U.S. 1 (1908) where the Supreme Court held that player-piano rolls did not infringe the copyright of the corresponding sheet music.  This was in line with other cases where music-box and gramophone cylinders were held not to be potentially-infringing “copies” of musical compositions.

The majority opinion, written by Justice Day, states in part:

“[E]ven those skilled in the making of these rolls are unable to read them as musical compositions,** as those in staff notations are read by the performer. It is true that there is some testimony to the effect that great skill and patience might enable the operator to read this record as he could a piece of music written in staff notation. But the weight of the testimony is emphatically the other way, and they are not intended to be read as an ordinary piece of sheet music, which, to those skilled in the art, conveys, by reading, in playing or singing, definite impressions of the melody.”

The upshot was that the Copyright Act, as it existed in 1908, did not mandate composer control of player-piano rolls or any other strictly machine-readable renditions of a musical work. Both the majority and concurring opinions said that yes, the composers probably were losing money on the deal, but if Congress did not intend that effect, it needed to change the language of the statute.  Hint. . . hint. . .

The following year Congress slapped a two-cent-per-copy tax on player-piano rolls***  and revised the Copyright Act  to give composers (and any assignees of their copyrights) the exclusive right  “to make any arrangement or record in which the thought of an author may be recorded and from which it may be read or reproduced.” 35 Stat. 1, §1(e).  With that language, there might have still been arguments that a machine couldn’t really “read” as a human does, but there’s no doubt that player pianos “reproduce” musical compositions that are “recorded” on piano rolls.  Still, Congress tried a lot harder to conclusively close the loopholes in the 1976 Copyright Act, which identifies “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” are copyrightable.

So, a nosy person might wonder, what kind of copyrights persist in Conlon Nancarrow’s compositions?  He continued writing player-piano studies well into the 1990s (including “For Yoko” dedicated to his wife) mainly while living in Mexico.  Everything after 1976 could have been covered in the US or any other Berne Convention country, even if not registered, but what about the earlier stuff?

The Internet was made for nosy people!  Four volumes of “Studies for Player Piano” were registered with the US Copyright Office between 1977 and 1984.  Under current copyright law, his heirs and assigns may control recordings and performances of these and his other works until 70 years after his 1997 death – i.e. until 2067.

_________________

*I played keyboards for a few decades and minored in music at U of I — even got into the Music Honor Society — and I said ‘”Who?” too, so don’t feel bad.

**Now I feel less bad about not quickly warming up to the piano-roll songwriting mode in Apple Garage Band(TM)

***none of which, I’d be willing to bet, the composers ever saw

What this shirt is suggesting, to the legal eagle eye, is celebrity rights for the rest of us. The shirt has no legislative or judicial backing - yet. But, just maybe, this idea’s time has come:

When people think of intellectual property, they think of patents, copyrights, and trademarks. Maybe trade secrets. But celebrity rights – basically the right to control the use of one’s name and likeness, though other things* can get under the umbrella if it rains hard enough – are another type of IP.

Celebrity rights can traditionally only be claimed by celebrities. Because their faces are their fortunes, the law holds that if someone, without their consent, associates them with something that damages their ability to make a living in their accustomed occupation, that someone owes the celebrity money. Possibly the money that the celebrity lost because of his or her distorted reputation. Possibly the money that the wrongdoer made without cutting the celebrity in on the deal. Possibly both plus punitive damages, if the offense was really egregious. There can be exceptions for parodies that no reasonable person would confuse with the truth, as Jerry Falwell learned to his teeth-gnashing frustration.

Just plain folks didn’t need this protection, judges and legislators felt, because their foibles aren’t likely to be widely publicized.

In many parts of the world, that isn’t true anymore. The ubiquity of digital cameras and Internet connections, the Schadenfreude** inherent in human nature, and the possibility that any of us may become a schlemiel or schlimazel*** at any time, combine to give the Global Public Humiliation Fairy a much wider range of prey. YOU could be next!

This might not be such a healthy development for individual psyches or for society as a whole. If you want to lead, or create, or innovate, or explore, the first barrier you have to overcome is the fear of mockery. This is a big fear: studies have shown that people, on average, fear public speaking more than death. Well, most of us can manage to shrug off an episode of schlemielery or schlimazelry witnessed by less than ten people. Some can bounce back after a goof in front of up to a hundred people. What the hey, eventually they'll forget, right? Now, suddenly, if anybody nearby has a digital camera (and where I live EVERYBODY’S ^&%*# got them), you run the risk of your faux pas being uploaded to a global audience of millions, and saved in cache indefinitely. Years from now, you could get off a plane halfway around the world, and your business contact’s kid could collapse in hilarity at the sight of you, finally gasping out “Dance, monkey boy, dance!” or whatever name your Shameware went by. This prospect is enough to make even a recidivist extrovert like me want to hide under the bed.

Back in 1963 one non-celebrity, Victor DeCosta, a a part-time rodeo cowboy who billed himself as “Paladin” and handed out business cards that said “Have Gun, Will Travel” beginning in 1947, brought suit for trademark infringement and unfair competition, among other things, against CBS, which aired the “Have Gun, Will Travel” TV series beginning in 1957. He believed that CBS had misappropriated his persona to create its protagonist, and his case was pretty strong. Actor Richard Boone, who played the character “Paladin” on the show, looked and dressed strikingly like the plaintiff. Over the next thirty years, four juries awarded him damages and four appeals courts overturned the decisions because the relevant laws, though they kept changing enough for him to sue on different grounds, just never morphed into anything that fit his situation.

We who aren’t celebrities-for-a-living are now sitting ducks for the dark side of celebrity – having our least-flattering moments captured and displayed to the world like those two-bag-ugly cover photos in checkout-line tabloids. Yet we have no recourse, except for a few measly torts whose coverage is woefully incomplete. If somebody PhotoShops your picture so it looks ike you’re kissing a goat, you’ve got an action for defamation – IF you can prove you’ve never actually kissed one in your life. If a hidden camera films you trying on unflattering bathing suits in a store’s dressing room, you can claim invasion of privacy, but if you’re filmed walking around a public beach in a bathing suit with more “southern exposure” than you thought it had, that won’t work either.

Worse, what lawyers (as opposed to psychologists) call “self-help” – for example, investigating whether cameras have yet gotten small enough to fit up an obnoxious photographer’s nose if sufficient force is applied – isn’t an option either. Unfortunately, that’s battery, even if you take the batteries out first.

On the other hand, once EVERYBODY’s got their 15MB of shame online, the playing field might naturally level out again. Sort of like how polite the Old West was supposed to have gotten once everyone knew that everyone else had a gun. In the meantime (since hardly anybody actually knows what the law is) if you’re going to “be there” and “do that,” “getting the T-shirt” might help! As R Stevens says, “Never again will you have to worry about someone making you look silly on the internet. You’ll have beaten them to the punch by doing it first … in real life.”

* Such as the distinctive voice of Tom Waits and the phrase “Here’s Johnny!” used to identify Johnny Carson.

**The German language includes this specific word that means “delight at another’s misfortune.”
*** The Yiddish language, which may have more words for “fool” than any Arctic language has for “snow,” defines a “schlemiel” as someone who goofs up physically or socially, usually affecting others nearby, and a “schlimazel” as a frequent victim of others’ goof-ups. When the first schlemiel spilled the primordial soup, the first schlimazel was the one he spilled it on. And the bystanders who were out of range got some Schadenfreude. And found they wanted more.