GrindEFX is back, w00t! Over at Techdirt, Michael Masnick highlights an interesting development in machine-generated music: a company claims to have created software that can recreate musical performances by famous musicians, living or dead.

As described on the blog, “Zenph Studio’s approach is to work out how the musician and the instrument acts and responds, then get a computer to play that track again as a real-time, real-life performance, which in turn can be recorded using modern techniques.”

It’s essentially MIDI on steroids. Zenph claims that through its software process, it can capture the nuances of any performer’s style and translate that into an algorithm to generate new recordings of old songs – or make entirely new songs that sound like they were performed by a famous musician.

Leaving aside whether this is a good idea in the first place – how long before we have Kurt Cobain hawking deodorant? - Masnick concludes with what I can only describe as an excellent law school final exam question -

So, now, take this software that supposedly can perfectly mimic a certain musician’s playing, and have it record a song. Say it’s a new song. Who owns the copyright? What if it’s adding John Lennon to a Rolling Stone’s song? Who owns the copyright? What if it’s an old song, updated in some slight way? Who owns the copyright? What if it’s just the same song but “remastered”? Who owns the copyright? The legal questions raised by this kind of software are going to keep copyright lawyers busy for a long, long time.

Being the slightly sadomasochistic law student I am, I couldn’t resist analyzing the issues raised in this situation. I am not a lawyer, and this article is only for general informational purposes; nothing here constitutes legal advice.

Who owns the copyright in a new song created by this software?

So, there’s this girl you like, named Ann Tates. You, being a musician, want to write a song for her (”She makes me pancakes!”) Her favorite artists are Jerry Lee Lewis, Jimi Hendrix, and Yo Yo Ma. Let’s say (assuming the software eventually does this type of thing) that you create your new song with this software.

The song itself is entirely new, including all music, lyrics, and backing parts. But the piano part sounds like it’s being banged out by Lewis, the guitar sounds like something Jimi would play, and the cello part has the characteristics of a Yo Yo Ma performance.

As far as ownership of copyright is concerned, nothing in this situation changes the fact that you, as the musician, wrote and composed the song, so you would own the copyright. But let’s make it more interesting and say the computer program is more like Jammer or Microsoft Songsmith. Instead of actually writing the song yourself, all you have to do is pick the performers you want to emulate, select a music style, and hit ‘go’ – the program does the rest of the work.

Who owns the copyright now? Copyright protection does require only the barest “modicum of creativity“, but here all you’re doing is pressing a couple buttons – theoretically you could do this all day and generate millions of songs.

Intellectual Property attorney William T. Ralston explores the answer to this question in his 2005 article “Copyright in Computer-Composed Music: Hal Meets Handel.” (52 Journal of the Copyright Society of the USA 281). Noting the struggle that copyright law has had with new technologies since the very first Copyright Act, he points out that “no direct legal challenge to the status of copyright in a machine-generated musical work has been raised” to date. He comes to the conclusion that yes, a computer-composed musical work would be protected by copyright, and the user of the program (not the programmer) would typically be the owner of that copyright.

What if it’s adding John Lennon to a Rolling Stone’s song?

Remember that when you’re talking about recorded music, you’re dealing with two entirely separate copyrights – a copyright on the underlying music composition, and a copyright on the sound recording itself. While both copyrights might be held by the same author (for example, an independent artist who records her own songs), it’s important to note that copyright protection in one of the copyrights doesn’t extend to the other.

That is, you’re free to record yourself playing a song in the public domain – Beethoven’s 5th perhaps – and you would receive copyright protection on the sound recording, but that doesn’t stop anyone from recording their own version of Beethoven’s 5th. Your copyright protection on the recording doesn’t give you any exclusive rights to the underlying composition. The same is true for cover versions of songs – anyone and everyone can make their own recordings of a track. None of them have any claim to the underlying musical composition though. And because of the scope of copyright protection on sound recordings, none of them can sue someone else who made a recording of the same song for copyright infringement, no matter how similar the two recordings turned out.

Just like Sir Mix-a-lot, copyright law likes big buts. The ‘big but’ here is that while you get a copyright on a sound recording of someone else’s musical composition, along with the exclusive rights copyright gives you, you still need permission from the composition’s owner to reproduce, distribute, publicly perform, etc, (I’ve truncated the ‘etc’ in this list for simplicity purposes) your sound recording, since you are simultaneously reproducing, distributing, or publicly performing the songwriter’s copyrighted work.

Getting back to the original question, the answer is clear. Since the software is generating its own sound recording (rather than ’sampling’ the sounds from any existing sound recording), you would own the copyright on a sound recording of John Lennon playing on a Rolling Stone’s song. You would not, however, be able to do anything with that recording without the permission of John Lennon or the Rolling Stones (or whoever happens to own the copyright on the musical composition you’ve used).

What if it’s an old song, updated in some slight way? What if it’s just the same song but “remastered”?

The same answer for the previous question holds true here. Again, so long as you’re not actually using the sounds from the original sound recording itself, you would own the copyright on a new sound recording you create from an old song, but the owner of the copyright to the musical composition still retains his or her rights to the song itself. You would need permission from them before distributing, reproducing, or publicly performing your sound recording (or not, if you qualify for a statutory compulsory license).

If you have made changes to the original composition’s  ”basic melody or fundamental character,” you may need additional permissions from the composition owner for creating a derivative work. (’Remastering’ or altering the arrangement to the  ’extent necessary to conform it to the style or manner of interpretation of the performance involved’ does not create a derivative work.)

You may be fine under copyright law, but there are other laws too

Masnick was only asking about the copyright issues that come into play with the software described here. Appropriating an artist’s “style” of playing may implicate various state and federal laws concerning right of publicity or unfair competition, to name a few.

Bette Midler, Nancy Sinatra, and Bert Lahr are just a few of the celebrities who have sued after discovering someone else had used a “sound-alike” to create a new work that mimicked their vocal styles. Copyright doesn’t work here – you can’t copyright a vocal style. Instead, they sought remedies through other laws, including those mentioned above.

These types of claims are complex to analyze. Tort law varies from state to state – what might be a valid claim in California may not be in Wisconsin – and the elements required to plead a case under each law differ. And while you can’t copyright a vocal style, you may still find yourself losing your case if the claim you bring clashes with federal copyright law, as Sinatra found out.

Additionally, you have state common law copyright to contend with, as well as First Amendment implications that may protect certain transformative uses of a performer’s right to publicity! Are you getting a headache yet?

In short, recreating the performance styles of famous musicians using this software may not be legal in areas of the law outside of copyright. The same things that hold true for a vocalist’s right to some control over the use of her vocal likeness would hold true for a performer’s right to the use of his musical likeness. In most states, right to publicity extends to the heirs of a deceased celebrity.

If Zenph Studio’s software does what it says it does, it is likely that we will see some kind of legal challenge in the future from one of the performers it adds to its software.

Image courtesy of misterbisson

On September 8th, Apple unveiled its latest ‘innovation’ to help prop up the recorded music industry – the iTunes LP. For only seven bucks more than a regular digital album, you can get some pretty pictures and liner notes. Facepalm!

But the story doesn’t end there.

Last week, Brian McKinney of Chocolate Lab Records told Gizmodo that Apple was charging record labels $10,000 in production costs to release an album in the iTunes LP format – and indie record labels need not apply. Apple later denied that allegation and said it is working on releasing the specs for the LP format and making them available to all, indie and major labels alike.

Regardless of the outcome of this “he said she said” tempest, it amplifies the silliness of the iTunes LP format itself.

Several web developers have dissected the format to find that it is essentially HTML, Javascript, CSS, and multimedia content – a website. For a little more than the cost of an actual physical CD, you get to save files to your hard drive that largely mirror content you can find online, from the artist’s website itself to Wikipedia, YouTube, and others.

I’ve been unable to find sales figures for albums released as iTunes LPs, but I’m curious to see how successful (or unsuccessful) it has been to date. Until then, the question remains whether Apple’s initiative – jacking up prices to include nicely designed text and album art with digital music files – can connect with fans, especially as consumers are shifting away from the album as a default container for music.

Until Apple opens up the specs to the iTunes LP format, indie artists who wish to bundle additional content with their albums can stick with a tried and true format: the zip archive. For years, netlabels and some independent artists have simply added media and documents to zip files of album tracks and offered the complete package to fans.

Bandcamp (one of the best music hosting/distribution sites out there IMHO) recently began offering this feature to artists on their site. Types of content you can include are limited only by your imagination and file-size concerns – videos, images, pdfs, etc. And with a little web development skill, artists can replicate a centralized user interface for interacting with the album’s content just like the iTunes LP.

Radio station to offer web streaming is not news. Web site to offer radio programming is.

CBS Interactive Music Group recently announced that it will begin offering music programming from Last.fm on HD radio stations in New York, Los Angeles, Chicago, and San Francisco beginning October 5th. The stations will effectively hand the broadcasting reins over to the crowd-sourced, music discovery site – bringing listeners “an eclectic mix of music aggregated and influenced by the service’s user-generated weekly charts, combined with live performances and interviews from the Last.fm studios in New York, and event updates.”

According to CBS, this is the “first time a music website has been transformed into its own broadcast entity.”

How to tune in?

Listeners will be able to access the station through multiple outlets including Last.fm and select CBS RADIO station websites; CBS RADIO’s streaming platform including its partnerships with AOL Radio and Yahoo! Music Radio, as well as mobile applications on the iPhone, iPod Touch and select Blackberry devices.  Music fans with HD Radio receivers in New York, Los Angeles, Chicago and San Francisco will also be able to interact with the multicast station broadcast on CBS RADIO’s WWFS-FM (102.7 HD2), KCBS-FM (93.1 HD2), WXRT-FM (93.1 HD3) and KITS-FM (105.3 HD3), respectively.

While this is an exciting and innovative development, the question remains whether HD radio itself can still catch on. Awareness of the format itself is very low; meanwhile, less than 10% of new automobiles come equipped with factory-installed HD receivers. CBS hopes this announcement – along with Microsoft’s soon-to-be-released Zune HD devices – will spur interest in the broadcast format.

Last month we were all very excited when the guys at Spotify told us they had submitted their iPhone app to Apple and gave us a sneak peek [video after the jump]. Well yesterday, news broke out that the app has been approved and is ready to hit the App Store.

There were concerns that Apple may discard the Spotify app as it might lure music fans away from iTunes, but CEO Daniel Ek assured everyone that they had a good relationship with Apple; “We’ve a great relationship with Apple, think the iPhone is awesome and absolutely expect them to approve the app in the next few weeks.” He said.

As we’ve discussed before, the mobile app will only be available to premium users who pay €10 a month.

Now that the iPhone app has been passed Spotify can crack on with its launch in the U.S..

Spotify has almost doubled in value since a year ago, the Swedish company is now valued at €170 million ($250 million).

Demo of the Spotify iPhone app:

First of all, I must apologize for my absence from the site in the last couple of weeks, I’ve been incredibly busy elsewhere and any time I got to put into the site was mostly taken up by “behind-the-scenes work”, hence the lack of activity on my part.

Back to business though and one story that’s been generating a frenzy this month is the new digital album format being developed by the major record labels and Apple (separately). Since rumours have been flying around for a few weeks now you’ve probably read or heard about it somewhere, I just wanted to play catch up though for those that haven’t heard and drop my 2 cents.

A brief overview; Apple announced they were working on a secret project which was given the name “Cocktail”. The idea behind Cocktail is a single file download that would include songs, videos, artwork, lyrics and liner notes for an album. This new format would presumably work very nicely alongside their iPod line and the new Tablet rumoured to be released later this year. Apple apparently reached out to the majors (Sony, Universal, Warner and EMI) for a partnership, however the majors decided instead to team up and develop their own competing format – CMX – which would, again presumably, require its own supporting player.

There are a number of reasons why this post got the Facepalm treatment, let me start by looking at my calendar; it says August 2009, though reading the above paragraph you’d be forgiven for thinking you’d accidentally stumbled into Stewie Griffin’s time-machine and travelled back to 2003. 6 years ago, this would have been a great idea and may have revolutionized the music business… but Apple did that already. Now with 200 million iPods, 20 million iPhones and 8 billion iTunes tracks sold, and over 3/4 of the mp3 player market behind them, the major labels want to wave their arms and say; “hey, we can do that too!”.

Consumers are going to take one look at CMX and do one of two things:

1. Buy the album elsewhere so they can actually listen to it on their iTunes and mp3 player.
2. Pirate the album.

So all they’ve done is further isolate music fans. Since when did people care about liner notes anyway (I’m talking about the mass market, not us music geeks)? And how big are these files going to be? HD images and videos? It’s likely each album will take up over 100mb. Aren’t we living in a world that wants everything faster and smaller?

To me this just sounds like another lame attempt by the major labels to limit access to music (I’m sure the files will be caked in DRM) and squeeze another few pennies out of a dying format (the album), because let’s face it, they don’t know how else to produce and market music. If they actually go through with it, CMX will be an epic fail and the majors will once again be the laughing stock of the music business.

Mashable reports (by way of Boy Genius Report) that the Apple’s upcoming release of iTunes 9 mayinclude several exciting new features, including some kind of Last.fm integration.

Details are unclear, but it is possible that this integration may include support for Last.fm’s Scrobbler, allowing listening data from iTunes users to be added to Last.fm’s ginourmous database. Again, this is only a guess based on a rumor.

While it is currently possible to manually add the Last.fm Scrobbler to iTunes, native inclusion will greatly increase the amount of data available to Last.fm’s recommendation system. Check out “Finding New Fans With Recommendation Systems” for why this is a good thing for independent musicians.

For independent musicians on Last.fm (and if you’re an independent musician who’s not on Last.fm… what are you waiting for?), this development offers a lot of potential. Any iTunes user who listens to your music will soon be reporting data to the Last.fm recommendation network about similar artists and music – leading to more users discovering your music. And there are literally hundreds of millions of iTunes users worldwide.

Not only that, but iTunes is included with the iPhone. Apple has sold over 20 million iPhones since it launched in 2007 (5 million last quarter alone). With three-quarters of iPhones users listening to music on their phones, independent musicians may soon find breaking into the mobile music market just a little bit easier.

Wow, this is my third article about Spotify in less than a week. I’m happy it’s getting attention though, I use it everyday and think it could just be the future.

So what has the European streaming service done this time? It has submitted its iPhone app to Apple! It was only last week I was saying how it needed to hurry along with its mobile apps because that’s where its strength and mass appeal is.

The iPhone application will be restricted to Spotify’s premium users, who pay £9.99 a month for an ad-free service and higher quality streaming. So users of the free service will have to upgrade if they want to stream on their iPhone.

Probably the best feature of the Spotify app is the ability to stream over Wi-Fi and 3G. This means even when there is no Internet connection available, you can still stream music offline through 3G (see video demo after the jump).

If approved, the iPhone app will be a big selling point when Spotify launch in the U.S. later this Summer.

CEO Daniel Ek is confident that Apple will approve the app, he told paidContent; “We’ve a great relationship with Apple, think the iPhone is awesome and absolutely expect them to approve the app in the next few weeks. Apple has already approved several other music services such as Last.fm, Deezer and Pandora. We very much look forward to people being able to access their Spotify library wherever they might be and we’ve spent significant time and resources to ensure we’ve stuck to Apple’s developer guidelines point by point.”

However, there are some concerns about the Spotify app being too similar to iTunes. Kevin Anderson at The Guardian noted a few worries that he has.

Apple has approved applications from streaming music providers Pandora and Last.fm and satellite broadcaster Sirius XM, but those services are more like streaming radio, with Pandora and Last.fm allowing people to listen to a specific genre of music or music similar to listeners favourite artist. Spotify allows people to choose specific songs to listen to and create playlists of those songs.

Mark Mulligan, vice president and research director of consumer product strategy at Forrester Research, also points out that Spotify may have some trouble converting its free users to the premium service.

“The problem is that the premium streaming music businesses have a dismal record of failure in the UK,” he said. “Virgin and HMV shuttered their premium music streaming businesses, with HMV relaunching a new offering. Napster has between 50,000 and 60,000 UK subscribers, numbers so modest that it shifted its European headquarters to Germany.”

Well only time will tell. I’m routing for Spotify, but I do share some of Mulligan’s sentiments.

Check out the video below to see a demo of the iPhone app.

An article on CNET yesterday highlighted a lack of support and investment for digital music start ups recently.

Music industry veteran and now venture capitalist at Venrock Associates David Pakman said “Investors lost a lot of money in this space.”

“What the music industry never encouraged or even allowed was building an ecosystem around its product,” he added.

I couldn’t agree more with Pakman. Music labels have shunned digital music services since they started cropping up over 10 years ago. Instead of embracing new technology and, as Pakman put it, “building an ecosystem”, the industry has sued the pants off every digital start up it could get its hands on.

Mike Masnick says “Given that (likelihood of getting sued or getting a deal that makes a profitable business impossible), is it any wonder that entrepreneurs are shying away from any sort of digital music startup these days, in favor of opportunities with no obsolete gatekeepers demanding huge chunks of whatever revenue they might one day make?”