I would not comment again unless I felt like there was something significant
to discuss, so here goes.
The rules about cover versions versus derivative works is based on the concept
of a song that goes back at least 100 years. Songs are more definable by
a set of unambiguous attributes -- lyrics, melody, chord progression. If someone
sang a song, unless they were really terrible singers, the link to the
original work of art is unambiguous to a listener.
The performance of a song only need conform to a high level template for
the song to be a performance of a song. The instrumental arrangement, the
tempo, the phrasing of the singer, etc can vary radically. In fact the
performance itself is protected by a separate legal instrument than the
song.
When you talk about a techno track, this template/performance duality
breaks down. A techno track's performance, sound design and structuring
can be the entire track -- the notes played and basslines may consist of
only one or two notes in a repetitive sequence, too small a fragment to
qualify as unique work of art in isolation. In fact, what happens to
the definition of a song as a protectable entity when a track is comprised
entirely of sequenced percussion sounds? No melody, no chord progression,
no lyrics. Where did the song go?
A prime example of this would be Richie Hawtin's "Spastic" which is basically
a drum tatoo. And not a unique drum pattern either -- the Spastik tatoo
is used in a traditonal african drum piece of which I have a recording.
I doubt that Richie bit the african originators for it either. It's a snare
pattern that anyone with a working knowledge of a 909 could replicate
in under a minute.
Yet "Spastik" is definably unique, if only in the performance. And I suspect
that Spastik is in fact a piece that was performed live to tape. So we're
faced with a situation that copyright control isn't entirely prepared for --
where the unique performance of a piece completely subsumes the actual
authorship of a song that can be presented in different contexts. There
is, effectively, no song there.
Rolando's piece does have a chord progression and melody of sorts, so
Sony could argue that they've made a cover version of the song. At
the same time UR could argue that Rolando's unique performance of the
piece is so much more important than the harmonic template, that any
reconstruction would have to be a derivative work, requiring permission
from the originators. Furthermore, there is a strong argument that the
new version damages the market for the original, and reflects negatively
on the composer by presenting an inferior performance of his track.
kent williams -- kent@avalon.net
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