Velocity/timing, midi, and copyright?

[Ou_Tis]

Suppose you make a midi file from a copyrighted recording and then change the melody but keep the velocity and timing of the notes. Would that be a violation of copyright in the US? (I've seen it claimed that rhythm can't be copyrighted in the EU, and drum beats can't generally be copyrighted in the US when they're part of a composition.) Does it depend on how "original" or unprecedented the dynamics are? What if you randomize the velocity and timing?

Similarly: if a musician hears a rhythmic guitar pattern and does something similar, but with a different melody, is that a violation of copyright? Or would the dynamics and rhythm from a song almost never be considered "original" enough by themselves to be a protected part of the composition?

[BertKoor]

Bollox. Rip all the timing & velocity you want, more power to you! Unoriginal, but you will make sure you keep under the radar.

This is all theory ofcourse until someone with very deep pockets (and the urge to fill them at your expense) wants to see you in court. This is the core probem with copyright: a judge will have the final say. That is, if you don't chicken out and settle outside.

You know what to do to avoid that. End of topic.

[Googly Smythe]

You'll be safe, whatever the law says - until you start making money. Then the lawyers will be queuing up outside your door. They'll give a couple years, first, to let the royalties pile up.

Also, live performance is never a breach of copyright unless you're using samples or sequencers or some such, ie anything recorded.

I've heard that every time you hear "Happy Birthday" sung in a film, a roylty has been paid. But it's ok to sing it your kids birthday party. It's a live performance, see?

[Googly Smythe]

I think my previous post may be gibberish. It's been a long day. Night, night and sweet dreams!

[jancivil]

Frank Zappa has a composition called Approximate (the verb approximate) which is written as rhythm and exists to be performed ad hoc anew with the performers choosing what to do as far as everything else. It might be stamping your feet, wholly or in part, that's not specified. The rhythm is the composition.

Varèse's Ionisation isn't partly copyrighted, such as just the pitched bits...

I don't know any case law but that basic premise is missing something as to definitions of 'composition'.
I would recommend not going by "I've seen it claimed that..." in the first place.

Suppose that if/when you make something off of someone else's composition you admit that's what it is, rather than getting cute about it.

[Ou_Tis]

Frank Zappa has a composition called Approximate (the verb approximate) which is written as rhythm and exists to be performed ad hoc anew with the performers choosing what to do as far as everything else. It might be stamping your feet, wholly or in part, that's not specified. The rhythm is the composition.

Varèse's Ionisation isn't partly copyrighted, such as just the pitched bits...

I don't know any case law but that basic premise is missing something as to definitions of 'composition'.
I would recommend not going by "I've seen it claimed that..." in the first place.

Suppose that if/when you make something off of someone else's composition you admit that's what it is, rather than getting cute about it.

There can be exceptions---for example 4'33 is copyrighted. In the US, anything deemed sufficiently "original" could potentially be copyrighted. One justification for not including drum beats is that in most songs, melody and lyrics are assumed to be the most important and most original parts of the composition, whereas chord progressions, bass lines, and drums are more likely to be more conventional and less original.

It's highly unlikely that something almost identical (in rhythm) to a particular short rhythmic section hasn't been played many times before, especially when it follows the conventions of a musical style that's been around for a long time or had massive popularity.

However, if a midi file notates the exact timing and velocity, it seems to me that at some level of precision even a short section with a relatively conventional rhythm could be sufficiently unique, or at least unique enough that it would be hard to find an exact match in the history of recorded music. But it's almost certain that there would be many instances, at least for short enough sections, that would match within a certain level of randomness, as in the long history of musicians imitating each other's rhythms and timing with a relatively high (but still human) degree of precision, so that even a relatively small amount of velocity and timing randomization should be enough to avoid violating copyright for sections that are sufficiently conventional, especially brief sections.

[foosnark]

It comes down to whether you change it significantly enough for "fair use" to come into play.

Almost certainly, if you make major changes to the melody, it's in a completely different musical context (and not just, say, changing a song's melody from minor to major) and has no impact at all on the marketability or value of the copyrighted material, it'll be fine...

...but one would also almost certainly not enjoy proving that in court against a publishing company.

...but one would probably not have to unless it's an easily recognizable copy.

Has anyone ever sued over the use of a rhythm, especially when there are pitch elements involved too?

(I do know of one instance of a taiko drummer who wrote a song that ripped the main line verbatim from another group's song without permission. They were asked very politely not to be a douche, and wound up rewriting that part and the result was way better than the original. But we're talking about a genre where rhythm, dynamics and choreography is 100% of the content.)

[jancivil]

Legally anything to do with something someone has sought to protect their right to as intellectual property is liable to be a crapshoot; if there's a real interest in it there tends to be clout. But it's down to a judgement.

I think if the drummer who did the Amen, Brother bit which became the Amen Break had had the wherewithal and the motivation to protect that object that this is workable.

But I think "I was inspired by this" and "I'm just going to run with this" might be two different things. And even if it's the former, why not give a shout out to the original. I've done 6 adaptations of Erik Satie compositions, all in Public Domain and even the most dramatic alteration (where it isn't likely anyone would be the wiser, in fact it's the same as using the changes from a show tune for a jazz original ie., the melodic material is original) is credited, I simply cop to the fact when publishing such. The OP struck me as suggesting it's just a matter of getting away with it and I don't agree.