Re: MIDI sequencing -- copyrightable??

On 25 May 2000, Mark Charette <charette[_at_]sneezy.org> wrote:
>
> On Wed, 24 May 2000, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
> >
> > So, for example, a MIDI sequence of a public domain melody,
> > incorporating no original music whatsoever, would on this
> > interpretation be in the public domain, just as a printed sheet
> > of the same music would be: the MIDI sequencing doesn't in and
> > of itself confer originality.
>
> A common misconception; the music (the notes) may be public domain,
> but the printed expression of the music (typography, layout, etc.)
> may be copyrightable. Music is a horribly complex copyright
> situation (at least for the layman, as I am, and I believe even for
> the lawyers and solicitors). There's the copyright on the music,
> the performance, the printing, and the recording. Ech! Add in
> editorial notes on the printing, and you can have a non-copyrighted
> piece of music (staff notation) copyrighted because of editorial
> footnotes -- or copyrightable material because the manuscript or
> first couple of editions that are currently out of copyright had
> errors or omissions, and a corrected copy produced by an editor
> exists. Then the complexities of whether or not the edited version
> can be limied for performance and recording rights ensue.
> As an amateur clarinetist and keeper of a large clarinet Web site,
> <http://www.sneezy.org/clarinet/>, I can point you to 10 or so
> versions of Mozart's Clarinet Concerto, KV 622, and tell you that
> each version is currently under copyright, and in some cases
> performance and recording rights must be granted. Not bad for
> something composed about 250 years ago ...

I don't think Tim's point was a misconception. Granted that there's more than just the music itself to consider in whether the MIDI sequence has any copyrightable features to it, but in the hypothesis the only original material was in the score itself. That is, there was no editing, fingering, etc., added by the MIDI transcription that would have rendered it "original" in the copyright sense. Therefore, I think Tim was right that by itself the rendering of the underlying work as a MIDI file is no more copyrightable than putting it in any other notational system would be.

However, some of this conclusion presupposes that the original being fixed in MIDI was already notated. Suppose, though, that I did a MIDI rendering of a live performance (for the sake of simplicity, let's say of an original work), so that the MIDI file was the first "fixation" of the work -- in that case might I have thereby created *both* a "copy" and a "phonorecording"? If yes, then how does one sort out the rights I have in that file? A possessor of the file can directly perceive both the sounds, through the intervention of a computer and other paraphernalia, and the written "text" of the music. Is there any basis for someone's claiming the right, upon payment of a compulsory license fee, to rerecord that work?

I realize we're getting off the main thrust of the thread here.

Vance

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