From: owner-loud-fans-digest@smoe.org (loud-fans-digest) To: loud-fans-digest@smoe.org Subject: loud-fans-digest V4 #69 Reply-To: loud-fans@smoe.org Sender: owner-loud-fans-digest@smoe.org Errors-To: owner-loud-fans-digest@smoe.org Precedence: bulk loud-fans-digest Sunday, March 7 2004 Volume 04 : Number 069 Today's Subjects: ----------------- [loud-fans] first it was a cover, then not a cover, then it was ["Fortiss] Re: [loud-fans] first it was a cover, then not a cover, then it was [Stew] Re: [loud-fans] first it was a cover, then not a cover, then it was [dmw ] Re: [loud-fans] first it was a cover, then not a cover, then it was ["For] ---------------------------------------------------------------------- Date: Sat, 06 Mar 2004 17:14:29 -0600 From: "Fortissimo" Subject: [loud-fans] first it was a cover, then not a cover, then it was Listening to a best-of mix that featured both Go Home Productions and DJ Dangermouse (thanks Steve!), I got to thinking about what exactly constitutes a cover of a song and how credit is apportioned for same. The basic structure I sort of get: there are rights (and compensation...in theory) for the song itself (to the writers) and for the recording. Presumably, if a CD has, say, ten tracks, one of which is a cover, 1/10 of the songwriting royalties accruing on sales of that CD go to the writers of that cover, right? What I'm curious about is the situation in which a cover is only partly a cover - such as when the covering artist changes the lyrics (Pavement's version of R.E.M.'s "Camera", for example, or the Residents' version of "(I Can't Get No) Satisfaction"). I don't think the EP that song is on has credits, but did Malkmus (assuming he wrote the new words) append his name so the credit reads "Berry-Buck-Mills-Stipe-Malkmus"? If not, why not? Shouldn't Malkmus receive compensation for his lyrics? Or, the opposite situation: when the music would not, without assistance of the lyrics, be recognizable as a cover at all (say, Red House Painters' version of "The Star-Spangled Banner" - really, more a re-setting of the lyric than a cover per se - or Aretha Franklin's version of "Eleanor Rigby"). Shouldn't whoever composed the new music receive credit as well? (This also raises the whole vexed question, in rock, of the difference between arranging and composing - since so much of the impact of a rock song rests on its arrangement rather than strictly its chord sequence or melody, the last two of which I'm taking as the components of "composition") I'm imagining now the cover that isn't a cover, or rather, the double-cover that is no cover: someone putting the Residents' singing on "Satisfaction" (which doesn't even use the melody of the original - or, uh, any melody) atop the music of Franklin's "Eleanor Rigby": the song theoretically would be covering two songs, but of course would sound like no cover at all to anyone not familiar with both original covers. "I can't get no popcorn..." - ------------------------------- ...Jeff J e f f r e y N o r m a n The Architectural Dance Society http://spanghew.blogspot.com/ :: Some days, you just can't get rid of a bomb :: --Batman ------------------------------ Date: Sat, 06 Mar 2004 18:57:57 -0500 From: Stewart Mason Subject: Re: [loud-fans] first it was a cover, then not a cover, then it was At 05:14 PM 3/6/2004 -0600, Fortissimo wrote: >What I'm curious about is the situation in which a cover is only partly a >cover - such as when the covering artist changes the lyrics (Pavement's >version of R.E.M.'s "Camera", for example, or the Residents' version of >"(I Can't Get No) Satisfaction"). I don't think the EP that song is on >has credits, but did Malkmus (assuming he wrote the new words) append his >name so the credit reads "Berry-Buck-Mills-Stipe-Malkmus"? If not, why >not? Shouldn't Malkmus receive compensation for his lyrics? I looked at my copy, and the credits do indeed list only the four lads from R.E.M. -- my assumption is that it has something exceedingly complicated to do with the Harry Fox Agency, who don't like to see ANY changes to the title or authorship credits of a song. (I had a hell of a time getting clearance to release R. Stevie Moore's PHONOGRAPHY without changing the title of the song "Theme From AG" to what the song's actual title is, "The Fishin' Hole" by Earle Hagen and...another dude whose name I forget. Something Spencer. It wasn't even a matter of songwriting credit in that case, as they were properly credited and paid, just the HFA didn't like that the song was given a new title. My assumption based on what I learned in the course of that experience and what I've seen on other adapted songs is that the new credit would have to read something like "Written by Bill Berry/Peter Buck/Mike Mills/Michael Stipe, additional lyrics by Stephen Malkmus" and that the royalty structure would be insanely complicated and require the services of at least a couple of lawyers. Given that the lawyers would charge more than any potential royalties -- from the flip side of a single that wasn't a chart hit -- it was undoubtedly simpler just not to mess with it. >Or, the >opposite situation: when the music would not, without assistance of the >lyrics, be recognizable as a cover at all (say, Red House Painters' >version of "The Star-Spangled Banner" - really, more a re-setting of the >lyric than a cover per se - or Aretha Franklin's version of "Eleanor >Rigby"). Shouldn't whoever composed the new music receive credit as well? >(This also raises the whole vexed question, in rock, of the difference >between arranging and composing - since so much of the impact of a rock >song rests on its arrangement rather than strictly its chord sequence or >melody, the last two of which I'm taking as the components of >"composition") This subject recently came up on another list, where esteemed writer/producer/crank Al Kooper -- who should know -- was extremely firm on the topic. I'm pretty sure his view would be that Aretha's "Eleanor Rigby" was a re-arrangement of the song's original chord sequence with a different vocal melody (which is certainly what it sounds like to me, although I admit that I'm basing this on playing the song in my mental jukebox because I've temporarily unplugged by turntable as I rearrange my office), and that neither enhancement counts as "songwriting." S ------------------------------ Date: Sat, 6 Mar 2004 20:22:14 -0500 (EST) From: dmw Subject: Re: [loud-fans] first it was a cover, then not a cover, then it was On Sat, 6 Mar 2004, Fortissimo wrote: > theory) for the song itself (to the writers) and for the recording. > Presumably, if a CD has, say, ten tracks, one of which is a cover, 1/10 > of the songwriting royalties accruing on sales of that CD go to the > writers of that cover, right? Nope. Covering artists can either obtain a compulsory license for the composition and pay the statutory rate to the publisher (currently 9 cents for songs under 5 minutes, i think, but due to go up soon) or negotiate directly with the publisher for more favorable terms. That thing about royalties only being paid on the first 10 compositions is not a matter of copyright law, it's a matter of contractual standard practice within the industry, and not related. Also, you need the license whether the work is covered in whole or in part - if you go the compulsory route, you have pay the full statutory rate for EACH composition of which recognizable elemnets are included -- for example, I have sometimes played live an arrangement of "Red Roses for a Blue Lady" which incorporates a verse of "Paper Roses" -- if I ever recorded and released it, I'd have to license both of the original compositions -- so theoretically, one composition that quoted several others could easily exceed the royalties I might earn on the rest of the record. > Rigby"). Shouldn't whoever composed the new music receive credit as well? > (This also raises the whole vexed question, in rock, of the difference > between arranging and composing - since so much of the impact of a rock > song rests on its arrangement rather than strictly its chord sequence or > melody, the last two of which I'm taking as the components of > "composition") I think Stewart handled this quite well, I'll add one thing: Whatever "composition" is pretty fuzzy, because there are court desicions in which things like signature riffs HAVE been ruled as elements of composition. Chord sequence alone is NOT composition (J Fogerty's "Old Man Down the Road" was found not to infringe Fantasy records' "Have You Ever Seen the Rain" despite the fact the two songs were in the same key and used the same chords (I could have the songs wrong ... didn't take the time to look it up.)) But there is no hard-and-fast legal definition, it's generally "melody" + "lyric" (where applicable) but it also may include anything else recongizable as intrinsic to the song. There are some extremely hard-fought battles between producers and sidemen who argue that their contributions are >part< of the song rather than arrangements of it. > I'm imagining now the cover that isn't a cover, or rather, the > double-cover that is no cover: someone putting the Residents' singing on > "Satisfaction" (which doesn't even use the melody of the original - or, > uh, any melody) atop the music of Franklin's "Eleanor Rigby": the song > theoretically would be covering two songs, but of course would sound like > no cover at all to anyone not familiar with both original covers. Over on that music/law list the Dangermouse record has, naturally, generated an enormous amount of discussion. It's a completely different thing, because it doesn't involve covering a composition (circle c copyright) but using previously fixed performances of compositions (circle p copyright). There is currently no equivalent of the compulsory license for sampling; all samples must be licensed with each individual copyright holder (theoretically -- I think it's common practice to use uncredited samples if they are sufficiently transformed to no longer be recognizable -- but the legal status, if any, for "sufficiently transformed" is even murkier). De La Soul had to pay, what, a million? to the holder of the copyright on the Turtles riff they used. If Dangermouse had recorded his own version of the White Album and used that as source material, and recorded his own version of the Jay Z's Black Album, he could have mashed the two, paid the compulsories on each pair of songs and released it legally. As it is, well, it was a helluva publicity stunt. (The Beatles' copyright holders, I'm told, have steadfastly refused to clear any samples ever.) But this is where it gets super murky -- John Oswald (Pluderphonics) has gotten into some legal trouble here and there, but in general I think more folks regard his works as new compositions in their own right, and his use of other compositions as "fair use". Negativland was not so lucky with their U2/Casey Kasem mash. I don't know if anyone ever tried to sue Christian Marclay (who made recordings of things like gluing bits of different records together); I kinda doubt it. Intent counts hugely in fair use cases, and the more academic and the less commercial you are, the better off you're likely to be. > > "I can't get no popcorn..." > ------------------------------- > > ...Jeff > > J e f f r e y N o r m a n > The Architectural Dance Society > http://spanghew.blogspot.com/ > :: Some days, you just can't get rid of a bomb > :: --Batman > - ------------------------------------------------- Mayo-Wells Media Workshop dm-w@ http://www.mwmw.com mwmw.com Web Development * Multimedia Consulting * Hosting ------------------------------ Date: Sat, 06 Mar 2004 21:24:33 -0600 From: "Fortissimo" Subject: Re: [loud-fans] first it was a cover, then not a cover, then it was On Sat, 06 Mar 2004 18:57:57 -0500, "Stewart Mason" said: > At 05:14 PM 3/6/2004 -0600, Fortissimo wrote: > >What I'm curious about is the situation in which a cover is only partly a > >cover - > This subject recently came up on another list, where esteemed > writer/producer/crank Al Kooper -- who should know -- was extremely firm > on > the topic. I'm pretty sure his view would be that Aretha's "Eleanor > Rigby" > was a re-arrangement of the song's original chord sequence with a > different > vocal melody (which is certainly what it sounds like to me, although I > admit that I'm basing this on playing the song in my mental jukebox > because > I've temporarily unplugged by turntable as I rearrange my office), and > that > neither enhancement counts as "songwriting." Ha - except in the case of "Eleanor Rigby," the chord sequence is just sitting on the root chord for most of the time then moving to the IV chord. That description, of course, fits so many songs it's not even funny. What makes the original distinctive, of course, is the string octet arrangement. Even that descending line below "all the lonely people..." doesn't actually change the chords: the song actually has only three chords (the third one being the major chord under the chorus). In other words, without the lyrics, trying to establish the Franklin track as a version of "Eleanor Rigby" would be impossible - esp. since it doesn't even use that third chord. I think it's clearly one of those situations where the legal definitions, evolving in a completely different business and artistic environment, are the roughest possible fit with current practice. It'll be interesting to see how things change (if they do), the more prevalent sampling and other (arguably) "fair use" -type reconfigurations of source material evolve. On Sat, 6 Mar 2004 20:22:14 -0500 (EST), "dmw" said: > > Rigby"). Shouldn't whoever composed the new music receive credit as well? > > (This also raises the whole vexed question, in rock, of the difference > > between arranging and composing - since so much of the impact of a rock > > song rests on its arrangement rather than strictly its chord sequence or > > melody, the last two of which I'm taking as the components of > > "composition") > > I think Stewart handled this quite well, I'll add one thing: > Whatever "composition" is pretty fuzzy, because there are court > desicions in which things like signature riffs HAVE been ruled as > elements of composition. Chord sequence alone is NOT composition > (J Fogerty's "Old Man Down the Road" was found not to infringe > Fantasy records' "Have You Ever Seen the Rain" despite the fact > the two songs were in the same key and used the same chords (I > could have the songs wrong ... didn't take the time to look it > up.)) In other words, if you can get a lawyer to convince people it is(n't) "composition," go with it. The interesting thing is (that I was trying to get at with double-cover/no cover scenario) is that puts the "additional lyrics by the Residents" and "additional music by Dunn/Cropper/et al." things in a weird legal limbo - since the songs are not (let's say - I haven't checked) credited in that way. If you *quoted* (not sampled) those lyrics, or that musical arrangement, how could the Residents establish ownership...since, for the reasons Stewart mentions, the copyright on their recording of the "Satisfaction" still credits only Jagger/Richards - and those lyrics aren't Jagger's? > But this is where it gets super murky -- John Oswald > (Pluderphonics) has gotten into some legal trouble here and there, > but in general I think more folks regard his works as new > compositions in their own right, and his use of other compositions > as "fair use". Negativland was not so lucky with their U2/Casey > Kasem mash. I don't know if anyone ever tried to sue Christian > Marclay (who made recordings of things like gluing bits of > different records together); I kinda doubt it. Intent counts > hugely in fair use cases, and the more academic and the less > commercial you are, the better off you're likely to be. BUt again, it's not as if there's a set standard: it's settled case-by-case, and while intent and non-commerciality are influential, they wouldn't necessarily be the last word: as Oswald, when his records were legally enjoined from distriubtion, found out. Curiouser and curioser... - ------------------------------- ...Jeff J e f f r e y N o r m a n The Architectural Dance Society http://spanghew.blogspot.com/ :: Some days, you just can't get rid of a bomb :: --Batman ------------------------------ End of loud-fans-digest V4 #69 ******************************