Month: February 2007

Flying By Wire

Reviewing [nec]shivaree.
Boston Globe, February 28, 2007.

I’m paranoid about word counts, so I can never include all the players, but here’s a shout-out to everyone else who didn’t get a mention in the paper:

In the Wolff Exercises:
Nicole Barnes, saxophone
Joseph Becker, percussion
Derek Beckvold, saxophone/percussion
Danilo Henriquez, trumpet/percussion
Mary Joy Patchett, saxophone
Mark Plummer, trombone
Lauren Strobel, trumpet

In the Lucier Kettles:
Joseph Becker, Kevin Kosnik, Rieko Koyama, Jeffrey Means, George Nickson, timpani
Jeremy Sarna, sound engineer

Their next show is March 6. And it’s free. Best deal in town.

Music would play and Felina would whirl

The Hatto scandal may have stumbled to a premature close (Geoff Edgers has a nice summary in today’s Globe), but the thievery bug seems to be spreading: according to a report in the El Paso Times, someone absconded with percussionist David Cossin’s notes after a performance of Tan Dun’s Concerto for Water Percussion with the El Paso Symphony on Saturday. (That’s Cossin there, getting his hands wet in Germany last year.) The article isn’t clear, but it sure sounds like the pilfered loot was Cossin’s marked-up score, which would be a pretty egregious loss indeed: I’ve hung on to piano music that’s barely readable and being held together with three kinds of tape solely because they’ve got fingerings and markings from Professor Paperno (including the dreaded green marker for when I missed something more than two weeks in a row). It may look like chicken scratches to you—it’s autobiography to us.

The silver lining? According to the Times, Saturday’s concert was sold out.

Tomorrow’s News Today

PHILADELPHIA, February 26, 2008—Saying that “nobody conducts the music of dead white males like a dead white male,” Philadelphia Orchestra Association President James Undercofler today announced that the late Fritz Reiner has been appointed as Music Director of the Philadelphia Orchestra, starting this fall. Reiner replaces Chief Conductor Charles Dutoit, who abruptly resigned last November after accusing orchestra members of trying to kill him with a poison-laced soft pretzel.

The move ends months of speculation over the post, during which several other candidates, including Riccardo Muti, Simon Rattle, and Terry Bradshaw, were rumored to be finalists. “Muti was a strong candidate,” Undercofler admitted, “but, seeing as how he was still walking and talking, we simply couldn’t absolutely assure our subscribers that he wouldn’t start programming a lot of contemporary music or unfamiliar repertoire. The corpse of Fritz Reiner brings an unbeatable combination of experience and predictability.”

Some in the orchestra were upset by the announcement, which was made after only limited consultation with the Players’ Committee. In addition, the musicians were skeptical of Mr. Reiner’s ability to establish a “rapport” with the orchestra, having not conducted professionally since 1963. Reiner’s sole audition was in December, when he was propped up in front of the ensemble for a rehearsal of Strauss’s “Death and Transfiguration.” Several players, who wished to remain anonymous, characterized his podium technique as “stiff” and “lacking vitality,” although one member saw occasional flashes of the Reiner of old. “If anything, his beat’s gotten bigger,” he said.

The announcement is seen as a blow to the Chicago Symphony Orchestra, who were said to be themselves courting Reiner for another term as their director. CSO president Deborah Card played down the rumors, saying, “We’ve long seen the need for our new director to be not just a superb musician, but an exceptional advocate for music in the community. Mr. Reiner’s remains aren’t going to be doing a whole lot of outreach.” Card, however, had no comment when asked about local news reports that the orchestra had been in talks, through a medium, with the disembodied spirit of Leonard Bernstein.

Suffragette City

All right, I think it’s time to get organized. One of our local classical stations, WCRB, is having an online poll to find Boston’s “Top 100 Classical Pieces of all time.” If you aren’t familiar with WCRB’s programming, I can sum it up by saying that the overwhelming favorites are probably “Eine Kleine Nachtmusik” and something by Albinoni. Not that there’s anything wrong with that, but said poll might be a way to get some more interesting fare in through the back door—they’re going to broadcast the 100 top vote-getters next weekend. Time for some ballot-stuffing! In the interests of efficiency and not diluting the electoral voice of a generation, I propose drawing selections from the following list (which, apart from being limited to living American composers, has no real rhyme or reason, just stuff I would be tickled to hear as “Classics for Relaxation” programming):

  • Robert Ashley: In Sara Mencken, Christ and Beethoven There Were Men and Women
  • Milton Babbitt: Philomel
  • Anthony Braxton: Composition #82 (For Four Orchestras)
  • Elliott Carter: String Quartet no. 3
  • George Crumb: Black Angels
  • Lukas Foss: Baroque Variations
  • Philip Glass: Music in Twelve Parts
  • Alvin Lucier: I Am Sitting In a Room
  • Meredith Monk: Atlas
  • Steve Reich: Four Organs
  • Frederic Rzewski: The People United Will Never Be Defeated
  • Charles Wuorinen: Third Piano Concerto

  • You’ll need to enter a name, e-mail, and phone number, but considering how many actual dead people have cast ballots over the years in my home town of Chicago, that hardly seems an impediment to, well, gaming the system. Vote early, vote often!

    Radio radio

    Hey, if you tune into WGBH right now (89.7 FM in Boston, streaming on the Web here), you can catch today’s live Boston Symphony concert, which this week includes the world premiere performances of Kaija Saariaho’s cello concerto, “Notes on Light.” If you’re keeping score at home, that’s two BSO premieres in two weeks. Enjoy it while it lasts. (You can also hear tomorrow night’s concert at 8 PM on WCRB.)

    Critic-at-large Moe and I got ourselves good and lost in the Sherborn Town Forest this morning, and when we got back to the car, WGBH was rebroadcasting a portion of Garrick Ohlsson’s Jordan Hall recital from a couple of weeks back. They were playing the Beethoven op. 22 Sonata, which was my favorite one on the program. It’s Ludwig at his most relaxed and human, especially the last movement, which takes the traditional Classical opera buffa-style finale and turns it inside out; a cute number for the lovers that you’re hearing from backstage, so you also get stagehands running around, scenery creaking into place, and quarrels among the extras. It’s enough to make me wish he hadn’t gone all Romantic-heroic on us.

    WGBH sent around an e-mail the other day to announce that next Monday, Tuesday, and Wednesday at 9 AM (EST), Cathy Fuller will be broadcasting (and streaming) the 1975 Houston Grand Opera recording of Scott Joplin’s Treemonisha. Joplin’s a hero around Soho the Dog HQ, so that’s information we’re happy to pass along.

    Faire Use

    What with all the plagiarism this month, it seemed like a good time to revisit one of the most plagiarized composers of all time—at least in his own mind, that is. The perennially litigous Ira Arnstein, born in 1879, would only be remembered today, if at all, for a few not-unpleasant Tin Pan Alley and religious numbers from the 1920s, except for the fact that he was convinced that other, more successful songwriters were constantly ripping him off. Arnstein brought no less than five lawsuits between 1936 and 1946, against the likes of Harry Warren, Joe Burke, Cole Porter, and others; and in the process, he indirectly paved the way for a refined legal definition of music plagiarism, one that, for better or for worse, persists today.

    Arnstein was born in Kiev, and emigrated to the United States when he was eleven. A sometime pianist, music teacher, and composer, by the 1930s, he had become something of a full-time plaintiff. His first effort, Arnstein v. Edward B. Marks Music Corp. (82 F. 2d 275 [2d Cir. 1936]), set the pattern: Arnstein would take a song of his own and another, more popular song, and, by highlighting selected pitches, altering rhythms, changing octaves, and elevating accompanying notes to melodic status, conjure similarities between them. Jack Lawrence had co-written one of the songs named in Arnstein’s suit, “Play, Fiddle, Play.” Lawrence recalls:

    Arnstein’s lawyer had a piano and fiddle player in court plus huge music charts, an intriguing presentation. The melody line of a song consists of single notes in the clef treble. Arnstein’s chart highlighted notes in both the clef and bass and when the fiddler played only the highlighted notes… lo and behold! — it sounded exactly like our song! Our attorneys spent hours trying to explain this to the judge, but he would only accept what he was hearing.

    In fact, as you can compare for yourself via the Columbia Law Library’s Music Plagiarism Project, the songs barely rate even a charitable resemblance. Arnstein didn’t help his cause by admitting that he had threatened the defendants. The New York Herald Tribune reported Arnstein’s testimony: “‘I was desperate,’ Arnstein said quaveringly. ‘I heard my song being played everywhere, and I was starving. I was out of my mind and might have committed murder.'” (Lawrence remembered that Arnstein “paraded in front of the ASCAP offices wearing a sandwich sign that read: ‘My songs have been plagiarized by the following writers: Irving Berlin, George Gershwin, Cole Porter, Jerome Kern, Rodgers and Hart.'”) Theatrics aside, Arnstein’s suit was eventually dismissed by the Second Circuit. (Judge Learned Hand took the opportunity to excoriate popular music in general, suggesting that pop songwriters were too witless to plagiarize: “[The defendant’s] gifts were very limited, and to attribute to him the ingenuity and penetration so to truncate and modify, and thus really to create a melody out of other elements, is harder than to suppose that the extremely simple theme should have occurred to him out of his own mind.”)

    Undeterred, Arnstein next brought suit against ASCAP itself. Arnstein v. ASCAP (29 F. Supp. 388 [S.D.N.Y. 1939]) was much in the vein of his previous action, right down to Arnstein’s familiar allegations of an enormous conspiracy to pirate his compositions. From his complaint:

    That they have in cooperation with the other defendants and their attorneys conceived the plan of branding the complainant as a lunatic and have worked in harmony with the officers of ASCAP and MPPA (Music Publishers Protective Association) to oust the complainant from the W.P.A. and have caused him to starve.

    That his room was constantly ransacked and many manuscripts and letters stolen. When he complained to the Police Department no action was taken but two gorillas beat plaintiff up and plaintiff produced a Doctor’s certificate at the trial to prove that he received medical attention for several weeks….

    That the conspiracy extended even to the Court Room during the trial. Witnesses and Musicians were accosted by defendants attorneys and induced to disappear. That twenty-five (25) musicians from the Union who signed affidavits to the similarity of the Music, were given jobs in the Russian Ballet as an inducement for not testifying at this trial.

    Arnstein managed to come up with two expert witnesses willing to testify that his song “Whisper to Me” bore certain resemblances to Joe Burke’s “My Wishing Song,” although the force of said testimony was blunted when the experts admitted under cross-examination that both songs bore certain resemblances to a previously existing number called “Are You Lonesome Tonight?” Arnstein similarly tried to sue BMI a few years later (Arnstein v. Broadcast Music, 137 F.2d 410 [2d Cir. 1943]), brazenly citing “Whisper to Me” again, this time comparing it to a tune called “It All Comes Back to Me Now.” His next try, Arnstein v. Twentieth Century Fox Film (52 F. Supp. 114 [S.D.N.Y. 1943]), was his most far-fetched yet, asserting that Harry Warren’s “I’ve Got a Gal in Kalamazoo” had infringed Arnstein’s Wagnerian parody chorus “Kalamazoo” pretty much on the grounds that they both mention the same city.

    Finally, though, Arnstein caught a break. For his final trip through the judicial system, Arnstein took aim at none other than Cole Porter. “Begin the Beguine” had been stolen from Arnstein’s setting of “The Lord Is My Shepherd.” “Don’t Fence Me In” had lifted from Arnstein’s “A Modern Messiah.” “My Heart Belongs to Daddy” had its illicit origins in an Arnstein instrumental called “A Mother’s Prayer.” Arnstein had become accustomed to grants of summary judgement for the defendants—the presiding judge saying, basically, that there wasn’t enough evidence to even bother with a jury trial—and he had always lost on appeal. But Arnstein v. Porter (154 F.2d 464 [2d Cir. 1946]) was, surprisingly, remanded for trial by the district court, and Arnstein got his chance in front of a jury. Of course, he lost—but it took some doing. Charles Schwartz relates in his biography of Porter:

    In the two-week long jury trial that followed, Monty Woolley, Deems Taylor, and Sigmund Spaeth all appeared in Cole’s defense to support his contention that he had never taken material from Arnstein. Cole also testified that he neither knew Arnstein nor was familiar with his work. When the case finally went to the jury it was dismissed as being without merit after a deliberation of nearly two hours. But though Cole won the case, it was perhaps as a result of the experience gained from this trial that, when asked if he ever went out without a carnation in his boutonniere, Cole answered, “Only when I’m being sued, because a carnation in the buttonhole never helps your case before a jury.”

    What changed? The Second District had decided to raise the bar for summary judgements, making it that much harder to simply dismiss nuisance lawsuits like Arnstein’s. Now, the plaintiff was only required to demonstrate two things: a) that the defendant might have indeed copied from the plaintiff, and b) that the copying constituted “improper appropriation.” Although subsequent case law has once again lowered the impediments to summary judgements, the Arnstein test remains the basis for music plagiarism cases. And both parts of the test are, well, complicated.

    In the absence of a direct confession, to establish the fact of copying, the plaintiff needs to show that the defendant had access to the pirated material, and that the material was actually pirated—that the pieces in question are, in fact, suspiciously similar. (Note that this makes all the evidence for this part of the test circumstantial.) The court recognized the tricky nature of the access question; if that couldn’t be proved, the plaintiff could still satisfy the test if the similarities were “so striking as to preclude the possibility that the plaintiff and the defendant independently arrived at the same result.” How striking would that be, exactly? Good question. And while the test says that the less evidence of access, the more obvious the similarities need to be, what no court has ever really cleared up is whether the relationship works in reverse—that is, whether more compelling evidence of access allows for less of a resemblance between the original and the alleged copy.

    Demonstrating that the copying amounted to “improper appropriation” is an even stickier wicket. The plaintiff needs to show that what was stolen is what made the original piece distinct and memorable to the ear of “the ordinary lay hearer.” That might seem reasonable—anyone can hear if two songs are the same, right? Maybe so, but most people aren’t aware that a lot of what they’re hearing may not actually be copyrightable. In legalese, such elements are called scènes à faire (literally, “scenes that must be made”), meaning they’re so common to a given situation that they’ve lost any claim to distinction. To allege that one romantic comedy stole from another because they both end with weddings would fail on the grounds that such a denouement is a scène à faire for romantic comedies. So just because two songs both start on do, mi, or sol, or both end on a V-I cadence, or both use, say, a twelve-bar blues progression shouldn’t be enough to establish plagiarism, but that’s assuming the judge or jury are musically literate enough to know the basic building blocks of tonal music.

    And here’s where the system fails, because expert testimony on the question of improper appropriation is, at best, severely limited. Under Arnstein, a musical expert can only testify as to the hypothetical effect on that “ordinary lay hearer,” completely ignoring any opinion as to whether perceived similarities are scènes à faire or not. (As it is, having an expert witness try to put him or herself into the mind of a non-expert may, in fact, violate Federal rules of evidence regarding expert testimony.) Under a later, non-music plagiarism decision, Sid and Marty Krofft v. McDonald’s (562 F.2nd 1157 [9th Cir. 1977])—the first case to concern “total concept and feel” plagiarism—expert witnesses are simply excluded from the improper appropriation test. As lawyer (and trained composer) Jeffrey Cadwell points out in his article “Expert Testimony, Scènes à Faire, and Tonal Music: A (Not So) New Test for Infringement,” this means that musicians are shut out of the very part of the process where they’re most needed: establishing whether or not similarities between two works are proof of theivery or just part of a generic vocabulary.

    Cadwell points out that the obvious solution—requiring proof of access and letting musical experts testify as to whether similarities between songs are trivial or not—was actually proposed prior to Arnstein, in a 1932 book on music copyright by Alfred Shafter. (Shafter’s book, from what I’ve seen, contains a number of howlers on musical substance, but he correctly foresaw the difficulty courts would have in dealing with it.) And since mass media and digital distribution have made access more and more easy to assume, others have proposed taking the guesswork out of the access question via compulsory music use licenses: basically cheap, no-permission-needed shout-outs to copyright holders that a particular piece of music is being covered, sampled, or otherwise borrowed (see, for example, this article by J. Michael Keyes). Are any of these going to happen soon? Probably not—the wheels of justice do grind exceedingly fine, and judges historically don’t like to admit that there’s a subject matter that might be beyond their ken.

    So what eventually happened to Arnstein? I don’t know; after the Porter trial, he seems to have vanished—there were no further lawsuits, and I can’t find any record of him after 1946. Wherever he is, though, he’d probably be pleased to know that he’s still causing other composers legal troubles—if only indirectly.

    Inside out, and round and round

    Some things you might have missed while double-checking your Joyce Hatto CDs against your Liberace albums….

    Anyone for a left-handed piano? Christopher Seed, the Jimi Hendrix of fortepianists, had a Dutch instrument maker build him a mirror-image piano, with the treble on the left side of the keyboard, in order to take advantage of his sinister inclinations. Admission: I’m a southpaw myself, but my main gauche still lags behind its more popular sibling in terms of technique, so I’m not sure how much this would help me. I would love to hear how the bulk of the repertoire sounds inverted around middle C, though. (courtesy of Bart at The Well-Tempered Blog).

    Grammys? Boomer nostalgia trips. Oscars? Please. Pulitzers? Until they give one to Lukas Foss, I’ll keep raising an eyebrow. No, the real honors come from Andy of The Black Torrent Guard, who’s dishing out the hardware in his inaugural Most Annoying Song tournament. The winner? The legendary James Tenney, whose classic earworm “For Ann (rising)” beat out a Rachael Ray mixtape. Something to shoot for next year, although be forewarned: these are the big leagues. How tough is the competition? “Empty Chairs at Empty Tables” didn’t even get an invite. Yikes.

    Think you know Purcell’s Come, Ye Sons of Art? No, you don’t. According to Dr. Rebecca Herissone of the University of Manchester, Purcell’s beloved piece fell victim to a less-than-diligent copyist in the mid-1700s, who “used different instruments, and changed repeats, notation and words and may even have replaced a whole movement with another Purcell piece.” Herissone has attempted to restore Purcell’s original intentions, although, lacking the ability to pop both CDs into the computer and compare their waveforms, she’s had to resort to certain amount of well-informed conjecture.

    OK, OK, I couldn’t stay away from the Hatto thing. The latest: Hatto’s husband finally speaks, and his non-denial denials show a certain flair and appreciation for the art. (Jessica and Lisa are good sources for updates.)

    Pentiti, cangia vita / È l’ultimo momento!

    “Doing a Mozart”? According to Jordan Tate, author of The Contemporary Dictionary of Sexual Euphemisms, that’s slang for a horizontal gavotte of sufficient vigor to leave one’s wig askew. According to the book:

    It was deemed necessary to have a euphemism named after Wolfgang Amadeus Mozart, due to his rock-star-like behavior in [the movie Amadeus]. The youth culture of Chicago started using this euphemism as a sign of respect for the somewhat timid or classy music (which was revolutionary in its time) and the juxtaposition of a wild and carnal celebrity.

    Which is all nonsense, Tate says in this interview. “I made up all the histories. Every word of it. There was no scholarship. You can’t really prove where a euphemism came from. I used whatever I felt was most plausible, and some of the true facts really came together in a way I appreciated.”

    I haven’t read Tate’s book, but my taste runs to actual etymologies, not half-baked stereotypes of classical music. (Check out the Random House Historical Dictionary of American Slang for a book that does it right.) And while Tate claims that the euphemisms themselves are authentic, and only the histories are made up, “doing a Mozart” sounds suspiciously pat to me.

    Besides, in Chicago, “Mozart” has another range of reference that’s far less cute. No doubt due to the influx of German immigrants in the 1800s, Chicago has a whole row of streets named after German cultural heroes: Schiller, Goethe, Schubert, Mozart. And the intersection of Mozart Street (pronounced with a soft “z,” by the way) and Augusta Boulevard, out by Humboldt Park, marks the center of territory controlled by the Insane Dragons street gang (who have their own web page—those Chicago gangs are organized). According to that page, Mozart and Augusta is known as the “Dragon’s Pit,” and the locale rates its own entry at UrbanDictionary.com. I’m hardly an expert on gangland Chicago, but even I knew that being out around Humboldt Park after dark was liable to leave your wig askew.