Don’t shoot me; I’m only the player piano

en : A player piano in action performing a piano roll. fr : Un piano mécanique en action. Original uploader was JazzNZ at en.wikipedia  Released into the public domain (by the author).

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.

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*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

Late, Great Jim Thorpe: NAGPRA’s Newest Draft Pick?

His Sauk (Sac & Fox) name was Wa-Ho-Thuk. The world knew him as Jim Thorpe, one of the greatest athletes of the 20th century. He played professional football, baseball, and basketball, and took gold medals in both the pentathlon and the decathlon in the 1912 Olympics. The International Olympic Committee (IOC) took away his medals (amateur-standing issues, having been paid to play semi-pro baseball); the Great Depression took away his career and earnings; a heart attack in 1953 took away his life. At that time, Thorpe’s native Oklahoma appeared singularly uninterested in erecting a monument. Frustrated, widow Patricia cast a wider net for the kind of memorial she felt Jim deserved. She found it in the towns of Mauch Chunk and East Mauch Chunk, Pennsylvania, which proposed to merge into the single town of Jim Thorpe, PA and provide a granite mausoleum to house Jim’s remains. He was posthumously inducted into several athletic halls of fame, and honored with a “Jim Thorpe Day” in 1973. In 1983, after years of stonewalling, the IOC reinstated his Olympic medals.

So now this remarkable personage can rest in peace? Nope, not yet. His three surviving sons are suing the town of Jim Thorpe under the Native American Graves Protection and Repatriation Act (NAGPRA, 25 U.S.C. 3001 et seq.), to have Jim Thorpe’s remains returned to Oklahoma for burial in the family plot near his birthplace (which has a historic marker now). Different facets of the controversy have been presented in the Wall Street Journal and the New York Times.

NAGPRA is a handy legal lever here, but is it really the right tool for the job? In the last half-century, federal statutes that bolster tribal sovereignty and Native cultural identity have seemed especially vulnerable to being crushed – or at least noticeably flattened – under the wheels of justice. One plaintiff tries to push the law just a little too far, and the court severely narrows the scope of the law or strikes it down altogether. Continue reading

Subsection Arrr: Did pirates really have Codes?

Several authors, including an economics professor, are pretty sure they did. Even the snooty-booty New Yorker has noticed, although New York is far more famous for “corporate pirates” who would have been useful to their high-seas counterparts only as ballast or sharkbait. (BTW, many thanks to Keith Nagel, author of highly useful patent-perusal program IPDiscover, for bringing this article to my attention).

These authors are probably right. Piracy is largely an organized crime; pirate chieftains like Blackbeard, Jean Lafitte, Grace O’Malley, and Madame Chiang commanded sizable fleets. Organizations have to have rules if they want to grow and achieve.

Don’t get me wrong; pirates were (and still are) “not very nice persons at all.” They stole ships and their cargo for personal gain, took prisoners for ransom or slave-price (or addition to the crew if sufficiently useful), and killed anyone who got in their way. Not like, for instance, national navies and letters of marque, which confiscated suspected enemy ships and their cargo as prizes shared by the crew, took prisoners for exchange or impressment into service, killed anyone who got in their way, and were sanctioned by governments and mostly financed by taxes.

My point –and I do have one – is that 17th- 18th-century pirate codes reveal a professional culture exhibiting much more democracy, safeguards for dispute resolution, and merit incentives at all levels than could be found in most governments of their age, and far more than can be found in most legitimate business ventures of our own time. They could certainly be a model for contractual relationships among salvagers and others who, albeit within the local law, profit from things that they find (rather than make or buy).

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For US Independence Day: Thanks, Haudenosaunee

This is a Haudenosaunee wampum belt. The Haudenosaunee (“Longhouse Builders,” aka the Six Nations of the Iroquois* Confederacy) used wampum (beads carved from the purple-and-white-striped shell of a quahog clam) for many purposes. Wampum belts weren’t for holding an individual’s trousers up, but for memorializing important agreements, metaphorically minimizing potentially uncomfortable exposure for whole groups, and often their descendants as well.

An elder of the Wisconsin Oneida nation, part of the Haudenosaunee, once told me that every traditional Haudenosaunee prayer is a prayer of gratitude. That’s impressive. Would you rather be in charge of people who say “Thank you” all the time, or people who say “Gimme”?

On this Fourth of July, I feel it’s appropriate to say thank you to the Haudenosaunee for providing a model of federalism for the Founding Fathers – an example of how separate sovereignties (like the newly independent colonies) could function as a nation without losing their separate identities and all of their autonomy.

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For Memorial Day: Cross Purposes in San Diego

This 29-foot, brilliant-white cross is part of a WWI/WWII/Korean War memorial on Mt. Soledad outside San Diego. The federal government took it over from the city as a historic landmark (a type of cultural property) in May of 2006, after repeated federal court orders to remove it from city land as an improper government preference for one religion over another, beginning in 1991.

The cross can be seen from freeways, public beaches, and other vantage points all over the city. Viewed out of context (as it is by any uninformed observer farther away then the parking lot), it may be a reminder of the role of Spanish missions in California history, or it may seem to announce “This is Christian territory” – reassuring to Christians, maybe not-so-much to others. Even in the context of the memorial function, it may compare any soldier’s death in the service of his or her country to Jesus Christ’s ultimate sacrifice of his life so that others could live, or it may look like “This is a memorial to Christian veterans; other veterans should go get their own.” Some atheists (some of whom were veterans, despite Fr. William Thomas Cummings’ 1942 contention that “there are no atheists in foxholes”) took exception to having their tax dollars support what they saw as a religious advertisement, and filed suit in 1989 to compel the city to either remove it or render the land on which it stood “non-public.” And many years of litigation ensued (sic).

The American Legion and Christian legal groups are launching an initiative to protect crosses on public war memorials from “secular attacks.” (You know a religious-freedom law is working when it can make even the most dominant, powerful religion in the land feel persecuted. : )) On the other hand, many of our country’s historic properties have religious connections – those of the people who made the history in the first place. What happens to the San Diego cross may affect what happens to other publicly-owned historic sites and artifacts.

Must government-supported historic preservation be confined to strictly secular subject matter? Let’s think about this. And for a change, let’s try to describe the existing law accurately.
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