The discussion that followed my recent post about the Kind of Bloop/Kind of Blue legal melee involved some questions, each politely put if strongly felt (exactly the sort of comments appreciated at this website), about why exactly it was that altering Miles Davis’ music seemed more egregious to some parties than did the alteration of Jay Maisel’s cover photograph. That is, why the holder of the copyright for Davis’ music deserved repayment, while perhaps the holder of the copyright for the photograph did not. I am, it feels at times, among those parties.

For background: Kind of Bloop is a remake of Miles Davis’ Kind of Blue album, with the original five jazz songs redone as “chiptune” music — that is, as music that sounds like it might emanate from a video arcade circa 1984. To complete the package, the original album’s cover art was processed to transform it to the blocky style called “pixel art.” The remake album was released in 2009, on the 50th anniversary of the original album’s release. In September 2010 Andy Baio, the creator of the Bloop project, agreed in an out-of-court settlement to pay $32,500 in fines to the photographer, the famed Jay Maisel, who had shot the iconic cover of the Blue album. Only in late June of this year did Baio go public with his legal entanglement.

At the risk of sounding like President Obama discussing gay marriage, I realized in the process of responding to these questions that my opinion on the subject of copyright regarding portrait photos versus music is still developing. Please understand that the logic I lay out below is at best exploratory. Partially it is exploring the issues at hand, and partially it is exploring my thoughts and thought process on the subject.

Though copyright protection has been repeatedly extended, it feels still like 50 years is a good long period of time to profit from anything before it becomes part of common vernacular, visual or otherwise. (And yes, feel free to ask me again when I am 75 and someone decides to make use of something I made when I was 25.)

No offense intended to photography, but framing a photo of a man as charismatic as Miles Davis seems like a far different proposition than composing original tunes such as those on Kind of Blue.

The musical notes in those pieces of music are Davis’ own, while the visual source material in Maisel’s photo is not his own.

Of course, this cuts both ways, which is where my still-developing status on the subject (aka wavering) comes in. (Wavering is when one considers flip-flopping to be a cognitive process.)

If you spend a lot of time listening to Kind of Blue, as with any music, great or not, you begin hear to the influences of others, some pronounced, some deeply seeded and coded. Rarely if ever are those influences repaid directly and financially for their effort.

One might say, by way of comparison, the subjects of photos by Jay Maisel and Annie Liebovitz do not profit financially from the ongoing sales of those works.

To acknowledge the way that prior work, that source material, figures in the development of music we habitually call “original” is to draw a comparison, rough as it may be, between the source of those melodies, and the subject in a photograph.

It is also to consider the process of creative sublimation that is required by a musician to make the source material his or her own, versus the lesser burden on a portrait photographer to make the subject his or her own.

It is this very matter that is at the heart of remix debates following the birth of hip-hop. Hip-hop absorbs its influences in a more literal, fixed manner than did most of the music that preceded it, and it has literally paid the price for this, with the systematized legal process that was developed for clearing samples.

I’ve argued here that there may be a case to be made that portrait photography may not necessarily deserve the same degree of protection as musical composition. I’d also say that sound in general tends to play second fiddle, as it were, to visual images in culture, and that is because images are indelible in our minds in a way that music is not. And yet we protect certain visual images in different ways than we do others. Logos, graphic design elements, typography, photography, architecture: these are all handled differently by the courts.

And if we handle different visual elements differently, it’s not clear why we should necessarily correlate a musical composition and a portrait photograph — in particular a portrait photograph whose primary role was as a piece of commercial packaging.

In the end (to the extent there is an end, since as I said up above, I am still pondering the subject), I have no firsthand knowledge of why Andy Baio, the creator of the Kind of Bloop project, understood the need to pay the publishers of the music, and yet did not explore paying the photographer who shot the cover image. But I do have some sense of the disparity.

And the way it has all played out seems to be less a critique of Baio’s thinking process, and more a critique of just how broken our copyright system is, and of the financial threat that hovers over individuals who wish to take the culture around them and make something of it. As I’ve said before: the laws as they’re currently enforced protect the interests of companies (and individuals) who actively territorialize our memories and then charge us to access them.

(Animated GIF image of the American flag found on Tom Moody’s tommoody.us website, where he writes frequently on electronic music, pixel-intensive art, and copyright.)

Arguably no modern musical form until hip-hop was as unabashedly appropriative as jazz.

This is one of the two great ironies of the recent brouhaha that erupted over reputed copyright infringement in regard to the cover of the Miles Davis album Kind of Blue. The album was released in the summer of 1959, and its cover was shot by legendary photographer Jay Maisel. The image, which shows a close crop of Davis playing trumpet, was given the retro block-pixel treatment a half century later, in 2009, as part of the compilation album Kind of Bloop. Kind of Bloop is a chiptune project organized by Andy Baio that took each of the five songs on Kind of Blue and rendered them in the low-processing-power manner of early video games. The tracks were each recreated by a different musician: “So What” by Ast0r, “Freddie Freeloader” by Virt, “Blue in Green” by Sergeeo, “All Blues” by Shnabubula, and “Flamenco Sketches” by Disasterpeace. If Pac-Man had gobbled its dots in the streets around the Five Spot, Kind of Bloop is what it would have sounded like.

And last September, Maisel got $32,500 from Baio in an out-of-court settlement as a result of the usage. The reason this is news now is because on June 23, Baio went public with the legal situation, writing on his blog, waxy.org, in a post titled “Kind of Screwed,” that he’d only recently gotten past what he described as the “nerve-wracking” nature of the entanglement and found himself able to write about it. (Baio defended himself with support from the EFF.)

The images up top show, from left to right: the original cover with Maisel’s photo, the cover of Kind of Bloop, and an Nth-generation pixelation that Baio made when trying to discuss the intersection of law and art. The intention of the exaggerated pixelation in this third image is to ask when, exactly, would a derived image be considered “transformative,” which, like “parody,” is protected under the law.

The Internet likes a good feud, and an underdog. Toss in matters of copyright, and inevitably the thing became a tempest, not just in comments and on social networks, but also at Maisel’s Manhattan home, which was, according to gothamist.com, plastered with blown-up pictures of the Kind of Bloop cover.

When Kind of Bloop was first released, I made make note of the cover, because at least one depiction of it looked more like Louis Armstrong than it did like Miles Davis (I also noted a period-style parallel to a contemporaneous Timbaland project). I noted an instance in which a participant in Bloop, Sam Ascher-Weiss, who records as Shnabubula, felt that Time magazine, in an interview, had egregiously misquoted him. And in May 2009, when the project was first announced, I linked to the initial fundraising effort: Kind of Bloop was one of the first pay-before-it’s-made albums on Kickstarter, where Baio was the CTO, or Chief Technology Officer.

There are perfectly good reasons for Maisel to have pursued his legal rights, if only because — to my knowledge — failure to defend a copyright can be used in the future as evidence of disregard for that specific copyright. To those who attack Maisel, I would say the following: If you agree that copyright is screwed up, as I do, and as I believe Baio does, you can’t entirely (key word: entirely) blame someone for trying to work within that system to the best of their ability.

That said, the original claim from Maisel’s attorneys seems absurdly high, as does the final settlement — patently so, you might say. (Baio: they were seeking at one point “damages up to $150,000 for each infringement at the jury’s discretion.”) Baio secured rights to use Davis’ music; the photo is not evidence of willful copyright infringement. And I agree with Baio’s take, which he elaborates on clearly at waxy.org: Current copyright law puts fear in the minds of anyone who wants to transform existing work. That, plain and simple, is messed up.

If you allow that more than finances must be at stake for the stakes to seem so high, then where does the litigious overkill originate? It’s an attempt at control over one’s work that often smacks of desperation. It’s quite possible that excessive defense of copyright protection and demands for its extension reflect a mistaken hunger for immortality. And it’s worth considering how many of the “immortal” artists, or at least the ones who died long ago yet whose work continues to have cultural importance, are individuals about whom we in fact know nothing little to nothing, people like Johann Sebastian Bach and William Shakespeare. They are not immortal. Their work may yet prove to be.

The loudest voices in this haven’t been the plaintiff or the accused. It’s the red-in-the-face peanut gallery arguing over it online. And it’s likely that the majority (key word: majority) of the blog-comment defenses of stringent copyright protections in regard to appropriation in music and visual art are made by individuals who have never profited directly in a significant way from copyright and likely never will, but who state their case out of some misplaced sense of imagined camaraderie. Rather than wrestle with the complexities of a legal system that has, arguably, helped keep them out of the marketplace, they act as empaths for the perceived misfortunes of the far more fortunate. This syndrome is whatever the opposite of slumming might be called.

Some antagonists to Baio’s project have gone so far as to describe the pixelated cover as “plagiarism,” which is absurd; there is no evidence of the Kind of Bloop participants trying to pass off the work as entirely their own. Others take offense at the concept of a chiptune adoption of Davis’ work. These detractors seem to miss the irony that this conversation is taking place in the realm of jazz: a genre in which out-of-context appropriation, the transformation of riffs and themes from pre-existing musical works, is part of its DNA.

And the second irony is this: Electronic music is often derided by acolytes of 1950s-era Miles Davis, who remain offended by albums like Bitches Brew and the work that followed it — and yet this time around the anti-electronic anger appears to have nothing whatsoever to do with when he, like Dylan, “went electric.”

Kind of Bloop remains available for purchase, though without the now outlawed cover, at kindofbloop.com, and the original fundraising plea is still viewable at kickstarter.com.

Stream and download the full set of 11 tracks at vira-records.com. (I’d usually embed the streaming code here, but the music is hosted on Bandcamp.com, whose software player has been breaking the HTML on this site, for reasons yet to be determined.)

More on Kupa/Cárdenas at soundcloud.com/kupa,
twitter.com/thakupa, and myspace.com/thakupa.

More on the netlabel at hexawe.net. Thrash Bandicoot is the duo of Kool Skull (Juan Larrazabal, soundcloud.com/koolskull) and Droid Song (Jack Taylor). Many of the numerous samples heard here are courtesy, wittingly, of Chalices of the Past (soundcloud.com/chalices-of-the-past).

More on Kool Skull (aka Juan Larrazabal, of Los Angeles) at
datamoshpit.com/koolskull and soundcloud.com/koolskull.

¶ Tinkerer, Hacker, Solderer … Felon?: The idea that when we purchase consumer electronics devices we’re not free to do with them as we wish can feel like this consensual extralegal hallucination, but until it gets to the Supreme Court it’s going to remain in that wonderful zone of Forever Litigation (apologies to Joe Haldeman). We can look forward to “Master Chief v John Doe” on the docket some day — who knows which side Phoenix Wright: Ace Attorney will take? — but in the meanwhile, an attempt to convict someone (a man in his late 20s named Matthew Crippen) for modding Microsoft Xbox 360s has ended, albeit on a procedural technicality: engadget.com, wired.com, joystiq.com. There doesn’t appear to be a Crippen entry at freedom-to-tinker.com, but that site, hosted by Princeton University’s Center for Information Technology Policy (CITP), is a treasure trove of issues such as this one. As for the Microsoft case, it always seems remarkable when a company founded by hackers goes to war against hackers. Let’s be hopeful that Xbox’s new Kinect doesn’t get the same sort of helicopter-parent attention. Because the Kinect is proving eminently (intentionally, some might say) hackable: crunchgear.com, hackaday.com.

¶ DJ Hero (Circa 1985): While on the subject of extralegal gaming, this rendition of the audiogame DJ Hero needs to be seen to be believed. It re-imagines the game as if it had been programmed for an NES system back around the time Ronald Reagan was entering his second term as president:

This is no mere retro dream scenario. You can download the actual functioning game at ericruthgames.com. It speaks to the energy within the so-called chiptune, or 8bit, music community. If you think chiptune is just a self-conscious geek fetish, it’s important to understand it’s more than faux arcade music created long after the fact. A game like Ruth’s — which is to say the effort that goes into such games — speaks to the benefit many find in viewing our current technological experiences through the technology of the near past. As chiptune/8bit develops as a culture, it becomes increasingly like a near-past version of steampunk. (I was initially going to say “recent past,” but “near past” is better, because it aligns with the more common term, “near future.”) How 8bit culture differs from steampunk is worth spending more time pondering. One particular strong point is the way a new generation pushes old technology past its previous understood limits, both functionally and creatively; the result raises the bar for software engineering today, when practitioners feel less constrained — a situation that has led to bloatware, feature creep, and other tendencies of our time.

¶ Lacquered Up: Footage of the “Urushi musical interface,” developed by designer and musician Yuri Suzuki with composer/musician Matthew Rogers:

Apparently it resulted from a program led by Emiko Oki, intended to cross-pollinate British designers and traditional “lacquer craftsmen of Wajima, in Ishikawa prefecture.” More on Suzuki at yurisuzuki.com. Found via designboom.com. The photos at designboom.com show that the craft isn’t simply that of the lacquer experts; there’s a lot of detail about the musical interface’s development and production. This is way older than steampunk. This is Kamakura-punk.

¶ System-ing the Game Music: There’s discussion of procedural music systems going on at fe01.redstonewire.com, the Minecraft game’s message board. That’s via twitter.com/dizzybanjo, aka Robert Thomas, who is CCO at RjDj, the reactive-audio tool, and who after some message-board nay-saying by others weighs in with some constructive ideas:

In terms of how procedural music for games / virtual worlds is created – I agree with some points on this thread. When programming procedural music, its important to somehow codify the musical structures that are present in the types of compositions, or improvisations you want the system to create. This is an art form in itself.

¶ The Music Industry vs the Record Industry: Thanks to Alan Wexelblat of copyfight.corante.com for noting the Disquiet.com Despite the Downturn compilation (a multi-artist critique-in-music, or “answer album, to a specious article in The Atlantic by Megan McArdle) in his discussion of Jeff Price‘s “The State of The Music Industry & the Delegitimization of Artists,” which debunks a lot of music-business doomsday scenarios and received wisdom. Writes Wexelblat: “If this argument sounds familiar, it should: Marc Weidenbaum made this point back in May, though he did it artistically rather than by crunching the numbers.” Price’s work is at blog.tunecore.com.

¶ Give ‘Em a Beat: And the Stonesthrow Records weekly Beat Battles are rapidly approaching their 200th (!) consecutive week. Those battles are one of the major locus points of casual copyleft artistry and intense communal creativity on the Internet, a place where musicians, week in, week out, take a single shared sampled and see what they all manage to make with and (for the more accomplished ones) of it, extrapolate from it, limited by time (less than a week) and aesthetic (in the end, it’s all about the beat). Discussion has begun as to what will be the sample for week 200: stonesthrow.com.

This sneak peek of a forthcoming video game says a lot about generational iterations in digital entertainment and culture. In the game, Mimeo and the Kleptopus King, the player leaps between not only those standard signifiers of gaming progress in platformers (i.e., levels), but also between degrees of video-tech sophistication, from 2-bit through 16-bit, and potentially onward.

Generations of audio development are less easily trackable than those in gaming, which is more clear-cut in its platform-dependency, but I wonder if there’s a music out there that can not only glide as easily between worlds as this game does, but that does so with the sort of emotional meaning packed in here — retro Pong samples and off-the-rack vocoding do not count.

Up above are the hero at various bit levels — note that they’re not just the same drawing with higher levels of resolution. And here are two sample stages of the game, showing how color and shading are depicted:

You need to watch the video below to appreciate the fluidity with which the game addresses these generations of technology. You aren’t just playing the same video game at with varying degrees of visual sophistication; certain moves require you to consider which bit level is the best way to proceed.

Here are examples of four degrees of audio, as represented in the Mimeo score — a 2-bit bass line (MP3), a 4-bit hi-hat (MP3), an 8-bit melody (MP3), and a 16-bit counter melody (MP3):

Original video post at vimeo.com. More on the development of Mimeo at the website of its creator, Shaun Inman, who also wrote the game’s music: shauninman.com (there’s an update explaining the development slowdown). Additional game footage at
youtube.com/user/shauninman. Inman is also the developer of the game Horror Vacui (apple.com, creativeapplications.net).

It’s kinda funny that it’s called “program music,” given what such a term suggests in our age of computer-assisted cultural activity.

That’s the term for the classical tradition in which an instrumental work has an inherent but unspoken (that is, unsung) narrative. Perhaps the best known, and best loved, example is The Sorcerer’s Apprentice, by Paul Dukas, which, as the Beatles might have put it, is based on a poem by a man named Goethe. We all have in our heads the Apprentice imagery — those animated mops and buckets — from Disney’s 1940 animation Fantasia (if not the more recent Nicolas Cage film), but Dukas’ music had been around for 43 years before that. Part of what made Fantasia such a fitting tribute to Dukas’ piece is that while the film provided an intoxicating, and indelible, stream of images, it didn’t add dialogue.

Music scholar Nicolas Slonimsky suggested the alternate term “descriptive music,” to allow for a phrase that more comfortably encompasses a broader range of less narrative-driven pieces, like Gustav Holst’s The Planets (not to be mistaken, of course, with Dr. Dre’s recently announced celestial hip-hop project — which it’s worth noting is reported to be instrumental, i.e. rapping-free) and Modest Mussorgksy’s Pictures at an Exhibition, as covered famously by Emerson, Lake, and Palmer — which brings us back, via prog-rock, to electronic music, circa the 1970s.

Last year, chiptune/8-bit figure Moldilox performed his own bit of “program music,” producing a score to a video game that had never existed, based on the great manga Drifting Classroom by Japanese genius Kazuo Umezu (see disquiet.com, thejosephlusterreport.blogspot.com). With tongue, and game controller, still firmly in cheek, he’s now followed that up with a lesser-known Umezu series, Fourteen, a sprawling future-fiction work starring the tragic poultry-human hybrid Chicken George (shown up top, alongside one of Fantasia‘s anthropomorphic mop buckets).

Moldilox’s faux-score for the faux-game has the following narrative, as he describes it:

“‘The Birth of Chicken George’ and ‘The Liberation of Chicken George’ follow the first and second stages, respectively. The first finds the player controlling the lump that will become Chicken George, maneuvering past scientists in the lab, and eventually making it toward a series of computer terminals while fighting off attackers and growing piece by piece. Stage two has George free at last, and running rampant through a zoo filled with scientific horrors, releasing them all and unleashing them on the unprepared masses.”

Both are performed in classic 8-bit sounds from the Pliocene era of video games, as developed in the audio-software program Milky Tracker (milkytracker.org). The song “Birth” (MP3) has a suitably eerie opening section, with industrial noises, as well as rises and drops in scales that suggests some serious shoots’n'ladders action. And “Liberation” (MP3), with its disco-Beethoven motif, ups the pace, with a more complicated melody, and a lot more zooming around, including moments of dramatic pausing. As with pre-Fantasia Dukas, you’ll have no trouble picturing the action in your head.

More on the project, for which Moldilox provided the game-cartridge image shown above, at beepcity.com.

The majority of the most popular posts this past month were drawn from the site’s week-daily free (and legal) download recommendations, the Downstream department: (3) a Grassy Knoll demo circa 1998, (4) one minute of instrumental hip-hop bliss, (5) a sample track off the Oval album O (due out later this year, to follow up the album Oh), (6) a slice of Bruce Kaphan pedal-steel atmospherics, (7) a sample of the collaboration by experimental electronic duo Matmos and percussion quartet So Percussion (plus guests), (8) electronica lullabies from Athens-based Naono (that’s Greece, not Georgia), and (9) news (and free WAV files) of a Peter Gabriel / “Games without Frontiers” remix contest.

And, finally, (10) a brief bit on the return of the patch cord, which is cementing its role as a visual metaphor in software-based instruments — such as this screenshot from the iPhone/Touch app Circuit Synth by Michael Daines:

The most popular post of both the last 60 and 90 days was the Despite the Downturn: An Answer Album link noted above. The second most popular post of the last 60 and 90 days was the initial response I wrote to the McArdle article, “What, After All, Is the ‘Music Industry’?”

The top 9 search terms on this site for the month of May were: “rss,” “performances,” “oval” (as in Oval, see above), “drone,” “oversteps” (as in the album by Autechre), “autechre” (as in the duo that just released Oversteps), “loops,” “topic,” and “mcardle” (as in Atlantic writer and editor Megan McArdle, as noted above). Tenth place had so many words tied, it’s just silly to list them all.

Get the full release at archive.org. More on the musician at myspace.com/cchimera. Visit the releasing netlabel at bp.bai-hua.org.