No, You Don’t Own Your Arrangement of That Hit Song
[Note: A slightly edited version of this post has been published in Vol.35, No.9 of The Licensing Journal (Wolters Kluwer, October 2015)]
A guitarist contacted me recently. He creates arrangements of popular songs and puts the PDFs of the music for sale on his website. The first thing I asked him is whether he got permission from the copyright owners of the songs to post his arrangements, being pretty sure he hadn’t. He was quite surprised and disappointed when I told him that what he was doing was flat-out illegal. So many well-meaning musicians still either don’t know about, or don’t understand the concept of, derivative works.
Section 101 of the Copyright Act defines a derivative work as follows:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
Note that “musical arrangement” is right near the top of the laundry list. And of course copyright mavens know that Section 106 sets forth the “bundle of rights” that a copyright owner possesses. These include the exclusive right to, or authorize others to, “prepare derivative works based upon the copyrighted work.”
So that means our guitarist, however well-intentioned, doesn’t “own” his arrangements of pop tunes and he can’t sell or even give away copies of them, whether they’re in the form of a lead sheet, guitar tabs, a fully scored chart or ancient runes – unless he gets permission from the copyright owner (More on that later).
But talking about derivative works and rights bundles of intangible property is kind of esoteric and doesn’t always convince wrongdoers of the error of their ways. So I’ll remind these folks that nobody would give a rodent’s posterior about “your” arrangement but for the fact that the song was written, recorded and made famous by someone else. So when you’re using somebody else’s music and trading off their art and good will, it’s only fair that you get their permission and give them a piece of the action.
But, my guitarist exclaimed, there’re all these other sites out there that do this – what about them? I explained that individual music publishers, as well as organizations like the Music Publishers Association, in conjunction with the National Music Publishers’ Association (yes, I know, it’s kind of like the People’s Front of Judea versus the Judean People’s Front for Life of Brian fans), have sent DMCA take down notices to many unlicensed sheet music, guitar tab and lyric sites. Simply because some infringing sites are still up doesn’t mean they won’t be taken down later or even sued for copyright infringement.
And as I’ll often explain, just because a rights holder doesn’t go after some infringers, it doesn’t mean they can’t go after you. It’s like complaining to the cop who pulls you over for speeding about all the other cars he could’ve pulled over and didn’t.
However, not “owning” an arrangement of a copyrighted musical work isn’t the end of the story. There are actually lots of things you can do without getting permission. For example, you can perform your version for your own amusement – or for that of your friends and relatives. Section 106 grants copyright owners only the exclusive right to public performances. That’s why it’s no infringement to sing in the shower – even if your private performances constitutes an aesthetic infraction. Copyright Act Section 101 defines a public performance as one at “a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” The definition also includes broadcasts and streaming.
Our gutsy guitarist can even publicly perform his arrangement, provided the venue has licenses from the appropriate performing rights organizations (PROs), ASCAP, BMI and SESAC. PROs license venues to perform the songs in their respective repertoires and artists are free to perform their own renditions of the songs. So if our guitar guy gets a gig at a local club that’s properly licensed he’s good to go. [2017 update: a colleague contacted me regarding reliance upon PRO licenses for orchestral arrangements, as opposed to those performed just by members of a cover or tribute band. Even assuming the public performances are covered (and the ASCAP license has a specific restriction), the creation, copying and distribution of the sheet music to this derivative work to hired musicians would, as discussed below, require permission from the copyright owner, i.e., the music publisher.]
And our guitarist could even make and distribute a recording of his arrangement – provided that he gets a compulsory “mechanical” license under Section 115 of the Copyright Act or the equivalent either directly from the copyright owner(s), usually one or more music publishers, or The Harry Fox Agency (HFA). HFA is a clearinghouse many publishers use to issue mechanical licenses on their behalf. Since the license is compulsory, the copyright owner can’t say “no” so long as the recording artist (i.e., guitar guy), pays the statutory royalties, currently 9.1 cents per unit distributed for a recording of a song that’s five minutes or less.
The Section 115 license specifically allows artists doing cover recordings to record their own arrangements of the work:
A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.
Minor variations in the melody are generally OK. As for what constitutes a change in the “fundamental character” of the song, that’s not clear except that it’s well established that you can’t change lyrics without permission.
However, the compulsory mechanical license only applies to audio-only recordings like CDs and MP3s. Our gutsy guitarist still couldn’t legally post a video of his performance or use his arrangement of the song in a movie, TV show, video game or other audio-visual work unless he got permission from the owner of the arranged song to do so. That permission is called “synchronization” or “synch” license, since you’re synching sound to picture. YouTube does have synch deals with some, but by no means all, of the music publishers.
But what if our guitarist actually wanted to get permission to print and distribute his arrangement of the song? He would need to contact the music publisher(s) of the work for permission. ASCAP, BMI and SESAC all have searchable databases and if you put in the title of the song you can usually find out who controls the rights to it as well as contact information for the publishers listed.
Armed with that information, our intrepid guitarist should then send a request, including a copy of the arrangement, to the “permissions” or “business affairs” department of the publisher who has the right to say yea or nay and to set the terms for the license to arrange. The process for getting a synch license (or clearing a sample, or reprinting lyrics) is much the same as getting permission to arrange. Find the publisher(s) on the PRO databases, and send a written request to the “business affairs” or “licensing” department explaining what you want to do and how much of the work you intend to use.
So in sum, while there are some things you can’t do without permission (e.g., sell sheet music or post videos), there’s still a lot you can do legally with an arrangement of a song – even though you don’t “own” it.
What about an EDM remixer in context of this article? Obviously, they need permission for the sampling. Do any derivative copyrights apply to the remixer’s rendition? Most remixes add considerable new material to the composition. Perhaps a co-publishing deal could be struck. Thoughts?
Dear Janet – a cottage industry of music clearance people sprung up because of the need to clear samples. And as you guessed, when remix situations are dealt with by the various parties (artists, labels, publishers), a co-publishing deal is often struck. But, that’s still an inefficient way to have to deal with this way of making music.
And the record industry wonders why people don’t go through the proper channels for this stuff… It’s so confusing you basically need a legal degree to understand what is or isn’t legal – or at least need to spend hours researching. I feel like this article is wholly emblematic of the problem with modern copyright law – it is not modern at all – it’s outmoded and outdated – a process designed to keep all of the money in the hands of middlemen. The system needs to be fixed and streamlined if they want people to actually start following the rules. Creators, and creators of derivative works, should be able to spend their time and resources creating and there should be mechanisms in place to allow simple an affordable (synch rights for obscure songs can reach 1k easily) compliance with the law – having to contact a minimum of 5 different organizations, all of whom had no part in the creation of the source material, just to publish an arrangement is just ridiculous. The guitarist can always give it away for free under fair use – claiming that it’s for educational purposes. I support creators getting paid for their work, even in the case of derivative works but the fact of the matter is that the system designed to help those creators get their pay needs to be simple and affordable – it currently is neither.
Dear John Doe – Many of your criticisms are being addressed as all stake holders agree that the current “system” is a mess and is too complicated. You might read my post on the Copyright Office’s Music Licensing Report for some recommendations designed to improve – at least somewhat – the current licensing framework.
I looked into getting permission for someone to perform a certain secular song of limited popularity on two nights and distribute cds to attendees of a church concert for Christmas two years ago. It was not for profit as in covering cost of the CDs only and the studio time was to be donated. The cost for the rights to perform, without recording, mechanical, publishing or distribution was in excess of $5k for a single performance, in essence they priced the song out of the program. The article’s 9.1 cents is a joke.
Michael – I can’t comment on the particular negotiations involved in your situation, but the statutory rate for making a recording of 9.1 cents is not a “joke” – it’s the law. Here’s the link to the Copyright Office Circular on the compulsory mechanical license http://copyright.gov/circs/circ73.pdf and here’s the link to the current and historical rates http://copyright.gov/licensing/m200a.pdf. You can confirm this this information at Harry Fox as well http://www.harryfox.com/find_out/rate_charts.html
PS: A derivative work that is a PARODY or satirical in nature, are free and clear from asking for permission & you can then exploit the created parody.
True, but a protected parody, a form of fair use, is far narrower than what the public perceives as “parody,” i.e., you can’t simply put new, funny lyrics to a song (fyi, Weird Al gets permission for his “parodies”) as the parody, per the US Supreme Court, has to refer and comment on the original work. More about that here: http://ostrowesq.com/the-broad-comedy-and-broader-parody-of-threes-company/
Thank you Marc. Great article!
Getting deep here, apologies. If the arrangement is submitted to the publisher for approval and they clear it for distribution, performance etc…is it not true that the arrangement is now owned by the person who created it? That person has a copyright in their arrangement, right? I know there is something regarding a work made for hire here, but I cannot recall what that means relating to this situation.
Most importantly, let’s say “Johnny Arranger” arranges an amazing version of The Rolling Stone’s “Jumping Jack Flash”. Johnny gets permission and rights to arrange from the Stone’s publisher and then sells the arrangement for all of the world to perform. My ensemble buys the arrangement/sheet music, learns it & performs it. BUT… What happens if I want to record a music video of this person’s arrangement? I know I’m supposed to contact the publishers of the original work and secure a sync license from them, understood from your article. STILL don’t I also have to get a sync license from the arranger as well? Johnny Arranger spent quality time creating something beautiful and got permission. Doesn’t Johnny have a sync right and doesn’t he have a say in who put’s his arrangement up for sale on a DVD, Video Download, etc?
Thank you for clarifying.
Thanks for your comment. As to your first paragraph, no, as the article clearly points out, the publisher has the right under Section 106 of the Copyright Act to authorize derivative works and under Section 101 arrangements are clearly derivative works. As such, the publisher sets the terms and will control the copyright, the arrangement is not owned by the person who created it but will typically get paid songwriter royalties if he/she enters into a contract with the publisher to “authorize” the derivative work arrangement.
As to your second paragraph, Johnny’s arrangement is authorized and you perform it, that’s fine, but if you want to made a video, that’s a synch license that requires permission of the copyright owner, the original publisher and owner of the derivative work. But since the arranger has no ownership interest, you don’t also need permission from Johnny and Johnny would have no approval rights unless that were negotiated into the contract with the publisher, which would be unlikely.
Thank you Marc, very informative…as always!
A record label was issued the Mechanical License to recorded and distributed in 1984, a copyrighted musical title composed and published by my father, from the co-publisher and copyright owner of the 1st artist Sound Recording of the musical title released in 1962. The title is registered with the Harry Fox Agency obo our publishing company, we requested the label submit the 1984 retroactive Mechanical License, Statement Of Accounts and Royalties to HFA.
The label agreed to submit the license retroactive July 2012 and stated we are entitled to collect (3) three years of Royalties according to the Copyright Act laws. The CD album released in 1984 by the label in the United States acknowledges our publishing company, the International CD albums licensed by the label stated Copyright Control. Where does the Copyright Act state such a ruling concerning Licensing and the collection of Royalties?
We discovered the deceased producer of this deceased artist 1st sound recording of the title, registered the title with the HFA and BMI as publisher, listing this artist as the composer. The HFA issued digital licenses to various licensees for the Sound Recording obo of the fraudulent publisher, excluding the Digital Music Service licenses from the record label. The heirs filed claims of ownership with HFA and BMI, instructed the HFA cease licensing the recording and submitted DMCA notices to several online service providers. The label submitted to the providers Counter Notifications that the title is in the Public Domain and Fair Use, additionally, licensed the recording to several record labels, without our knowledge and authorization.
How do we enforce the providers to acknowledge the DMCA notices served and how do we recover from BMI the Performance Royalties paid to the fraudulent publisher and composer?
Hi Ingrid – I’m not able to comment on your specific situation in a public forum, without additional information and without being retained to represent you. But, as a general matter, the Copyright Act has a three-year statute of limitations in section 507.
Thank you for the clarity, I will submit the additional information to you.
If the copyright owner of the original work disapproves of an arrangement due to the the contents of the song because, for example, it contradicts their political views or criticizes them, even though they grant approval of other things that align with their own views, surely this might touch on the first amendment? If some content owner has the power to approve or disapprove of arrangements simply because they want to censor what the arrangement represents, you’d think that this probably violates freedom of speech. Does it?
There is generally no first amendment right to use someone else’s property. You have a right to free speech, but not to appropriate another person’s speech anymore than you have a right to post a sign on your neighbor’s lawn. Absent a compulsory license, a copyright owner generally has the right to say “no” to any unauthorized use of the work that does not qualify as a fair use, regardless of the reason.
Looking over prior history of court cases though, it seems like you would be quite incorrect, in that someone did win a copyright case base on First Amendment arguments, such as in the case of the book “The Wind Done Gone.” Furthermore, putting a sign on a neighbor’s law is not one’s own speech, but rather making someone else express something, which is why it’s different from the situation I am talking about here. Furthermore, if you were invited to your neighbor’s house and you carried a sign that they didn’t like, they can kick you off their property, but generally it would not be illegal to have that sign in the first place, would it? That is why I would say that the conclusion you make is very questionable, both in theory and in practice.
Perhaps a better way of putting this is, “if fair use didn’t exist, would the courts have been forced to create fair use from first amendment arguments”?
You said something in response to Jackson24 above that created some confusion for me. “…the arrangement is not owned by the person who created it but will typically get paid songwriter royalties if he/she enters into a contract with the publisher to “authorize” the derivative work arrangement.”
If I make an arrangement of a song and record it for resale (audio only), all that is required is a mechanical license. The copyright holder will receive the statutory rate (9.1 cents/unit) and I can sell the recording for whatever I sell it for and the rest goes to me. Am I understanding this right? The above quote makes it sound like a contract with the publisher’s authorization is required.
Nathan – Thanks for your comment. Regarding your first paragraph, that’s in response to selling (or renting) sheet music of the arrangement and permission of the copyright owner (music publisher) is needed. As for making an audio-only recording of an arrangement, that is covered by the compulsory mechanical license. And while the music publisher can’t say “no,” you still have to get the mechanical license and pay the 9.1 cents per unit either directly through the publisher, through a clearing house like the Harry Fox Agency or through the US Copyright Office. Even though the license is compulsory, it still has to be obtained and the royalties paid.I hope that clears up any confusion.
It does. Thank you for your time and for the clarification.
“Our guitarist could even make and distribute a recording of his arrangement – provided that he gets a compulsory “mechanical” license under Section 115 of the Copyright Act or the equivalent either directly from the copyright owner(s)… …Since the license is compulsory, the copyright owner can’t say “no” so long as the recording artist (i.e., guitar guy), pays the statutory royalties, currently 9.1 cents per unit distributed for a recording of a song that’s five minutes or less.
http://www.harryfox.com/license_music/what_is_mechanical_license.html
Says that a mechanical license DOES NOT grant the right to: Print sheet music. (For these rights, you will need to contact the publisher(s) directly.)
Does this mean that guitar guy can’t print sheet music and sell it on the street. But he CAN sell a digital copy of the sheet music like in a PDF. Pay his 9.1 cents per download. Is he liable for anything else?
Steven – Section 115 only applies to audio-only sound recordings. That’s why the Harry Fox site says it does not grant rights regarding sheet music. So a PDF of sheet music is not covered by the Section 115 “mechanical” license. Guitar guy would still have to get permission from the publisher(s) of the music to sell the arrangement in any format – print, PDF, etc. Best, Marc
Thank you for continuing to monitor this article and respond to questions. It has clarified MANY questions. Here is my own…
Consider a musical work in the public domain. For example, a popular song with plenty of documentation that the words and lyrics were composed in 1860, just to make certain. The melody and words are clearly recognizable. Now, an enterprising soul makes a new adaptation of the song, let’s say an arrangement for SATB choir or “Barbershop” chorus, both of which require a fair amount of knowledge and skill to pull off, while retaining the original character (words and melody) of the original work.
It seems clear that the “arranger” does not need to get anyone’s permission to adapt a musical work that is in the public domain, and must own some rights to that arrangement, such as sales sheet music. But since they are not the composer, do they now control performance, recording and synch rights for the adaptive arrangement, which is still maintains the character of the original work (recognizable melody and lyrics) which is in the public domain? In brief, must performance, mechanical and synch licenses be obtained from the arranger or their publisher?
Reason for the question: I help make/produce audio recordings for schools and non-profit choruses which they sell on CD for fundraisers. We obtain mechanical licenses for compositions under copyright, and have also been paying the same statutory rate to the publishers of the adaptive arrangements of PD songs, based on the warnings and notices on their sheet music that they control performance and mechanical rights to their arrangement. After reading your article, I wonder if we have been paying twice to composers and arrangers, or “royalties” to arrangers that are not entitled to such on public domain works? (Shades of the “Happy Birthday To You” case?)
Dear Oskar –
Thank you for your post. An arrangement of a public domain work, assuming it meets the low threshold of “originality,” will qualify as a copyrightable derivative work. While you are free to use the underlying public domain work and are also free to make your own arrangement of it and record it, you may not use the particular copyrighted arrangement of the PD work without permission. In this case, the permission being a Section 115 mechanical license to record the arrangement. Please look at Copyright Office Circular #14, for more information: https://www.copyright.gov/circs/circ14.pdf
Marc, thank you for the quick reply and also the link.
Especially useful was the example in the circular describing how to file for copyright on an arrangement…
• New arrangement of preexisting music for piano
Material Excluded: Music
New Material Included: Musical arrangement
Looks like I will continue to pay mechanical royalties to arrangers who work with PD source material. I just want to make sure I am playing by the rules, but also not enriching those with no right to the work due to the tangled mess that is US Copyright law (to us laypersons).
Thanks again.
Our question relates to the intersection between the right to perform and the right to make an arrangement or use an arrangement for that performance. In the symphony world, there have been many acts that bring a package of arrangements of songs that are clearly still under copyright and the performers for a single price. The orchestra plays those charts along with the performers. Most orchestras have blanket performance licenses through ASCAP and BMI. Now there is an outfit that is asserting that the performance licenses do not cover the right to perform these arrangements and that the orchestras are liable for damages as a result of the infringement, going back 3 years. It seems from what I read above that you would disagree with this?
Dear Lois – I am aware of the outfit to which you refer. I will not comment publicly on this company’s proposed agreement or on how they run their business. I will, however, reiterate and expand a bit on the copyright law points I made in my post. Specifically, I mentioned (at two paragraphs above the Section 115 quotation) that “the creation, copying and distribution of the sheet music to this derivative work [arrangement] to hired musicians would, as discussed below, require permission from the copyright owner, i.e., the music publisher.” And par. 2(e) of the ASCAP orchestra license somewhat inartfully addresses this specific situation, requiring arrangements of copyrighted works to be properly authorized. Section 106 of the Copyright Act grants the copyright owner (or authorized agent) several exclusive rights with respect to a work: reproduction, distribution, public performance/display, and creation of derivative works. The ASCAP and BMI licenses only cover the public performing right. It does not cover any of the other Section 106 rights. For example, an orchestra has to pay a fee to use the performance materials for a Copland work, even though it has an ASCAP license. As to this entity’s claim for infringement damages if they were to sue and prevail in a lawsuit, the statute of limitations under Copyright Act Section 507 is three years from the date the infringement claim accrued. Marc
Marc, like others have said, thank you for continuing to respond to questions almost three years after writing this post. (And hey, if you violated copyright law in this post anywhere, at least you’re almost out of the statute of limitations on it! LOL)
Is it just me or is there a strange sort of contradiction in the fact that one can create their own arrangement for a recording and be covered for that recording by a compulsory mechanical license, and yet can’t write that arrangement down for live performance and be covered by a PRO license? Is the arrangement, whether written or not, still a derivative work?
My second question is related to whether or not these claims have held up in court. Is there sufficient case law history yet to know if, indeed, creating sheet music of an arrangement for a particular performance (vs. creating sheet music to sell and license as a “publisher” of said arrangement) has been determined to be viewed as “derivative work” since performance of, or recording of, unwritten arrangements are not?
Lois’s question above references a certain organization playing hardball that is striking fear in a lot of us who have been hired to write custom arrangements, especially for orchestras. Why should a cover band’a arrangement, created and learned aurally, be viewed as any less of a derivative work than a lot of our custom arrangements for specific ensembles who cannot feasibly learn them aurally (such as pops orchestras or symphony orchestras)?
I get that the law doesn’t appear to side with my opinion, but I just want to vent my frustration at the idea that at LEAST the law should have provided some reasonable fee structure for musical arrangement licenses if it felt the freedom and need to regulate compulsory mechanical licenses. Last night, I read an example of a particularly well-known song for which a license to arrange costs $3,500. That is just insane!!
Anyway, if you could at least address my question of why a recorded arrangement is not, itself, a derivative work (the arrangement, not the recording) and the question with regard to case law having tested this, I would appreciate it. Thank you for this article.
Hi Steve – Thanks for your comment. I do not give legal advice on specific situations in a public forum but will only address general legal principles. With respect to your question as to why one can create an arrangement for a sound recording but can’t treat it as a derivative work and distribute sheet music of that arrangement, the answer is contained directly in the applicable statute. Copyright Act Section 115 governs the compulsory license for creating cover records. As such it applies to the creation and distribution of SOUND RECORDINGS ONLY. It does not apply to the creation and distribution of sheet music or other printed performance materials. More specifically, Section 115(a)(2) reads as follows:
(2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.
Accordingly, the statute itself states that additional permission is required for the derivative work arrangement outside of the making and distributing of “sound recordings.” This is consistent within the overall statutory framework as the exclusive right to create and authorize derivative works belong copyright owner (or its authorized agent) under Copyright Act Sec. 106. Marc
Thank you, Marc! I appreciate that explanation. I wish I could phrase my other question in a way that would not appear to be requesting legal advice, but I understand your boundary there.
If I could follow-up on your answer, when the statute talks about “the privilege of making a musical arrangement to the extent necessary…but…shall not be subject to protection as a derivative work”, can that be interpreted that the arrangement may be written down for the sole purpose of the recording process? You said that it “does not apply to…sheet music or other printed performance materials” — and I understand that insofar as it does not allow for those materials to be protected in any way by the compulsory license outside of the recording itself. But I’m curious about the phrase “making a musical arrangement” and what all that entails. Do you have general comments you can make on that?
Again, thank you! Even these general answers are a bit of a godsend for me right now in making some decisions about my work.
Yes, the arrangement may be written down for the sole purpose of the recording process. A contrary interpretation would lead to absurd results. But again, that does not mean that you are permitted to reproduce and distribute the arrangement (sheet music) to third parties as that would involve the creation of a derivative work arrangement that requires permission.
To add on I forgot to mention that it wouldn’t be like a half time/ competition thing, just in the stands.
The technical answer is “yes,” this would be the creation of a “derivative work” arrangement and should be licensed. However, as a practical matter unless the arrangement is done for a competition or some other high profile performance it is unlikely that the copyright owner(s) would enforce their rights. But if videos these football games and band performances are posted on social media it’s possible the copyright owner(s) might take notice.
Hi Marc,
Thanks for providing this amount of advice gratis, it’s super useful! Hopefully my question doesn’t conflict with your need to not make comments on specific cases.
My question is from an educational setting as I see this scenario pop up so often. My understanding is that arrangements of popular repertoire can be created for band + orchestra within the scope of an institutions instruction. However, where I am fuzzy is when these arrangements are then publicly performed: must they then be treated as any other arrangement and be approved by the right-holder? Or can the performance simply be reported via PRO.
In this scenario the arrangement is printed for performance, but destroyed after use.
Unfortunately, you have it backwards. There’s no exemption for creating arrangements. However, there are certain exemptions for public performances and displays under Copyright Act Sec. 110(1) and 110(2). The creation of any arrangement is a “derivative work” and there are no exemptions for these. That’s why Hal Leonard sells lots of band and orchestral arrangements of popular songs, for example. And with respect to competitions, such as marching bands, all arrangements will have to be licensed. So, as a technical matter all arrangements that are publicly performed need to be licensed. That said, as a practical matter, it is unlikely that high school band and orchestra directors will be subject to infringement unless the performance is a high profile one.
Hi Marc,
Great article!
Suppose I create an arrangement of a current pop song and perform it with a tutorial of how to play it on my website? YouTube is okay I’m assuming since this is common practice but what about a personal website?
In addition, what if I offer that arrangement as a pdf download?
However, instead of selling the content what if I, instead, sell a membership to my site to access this content. Is that legal? Or, if that’s not legal, what if I have a Patreon account and ask for donations for the content?
Basically, any way around getting a cease and desist?
Hi Debbie – Thanks for your note. Let’s address the easy points first. As I state in my article, you can’t offer your arrangement as a PDF download or otherwise distribute physical or digital sheet music of your arrangement without the permission of the copyright owner(s) of the song arranged. Now let’s talk about access to a video. Since this is a tutorial, there’s an argument that this could be considered “fair use.” But, if you read my two blog posts on the subject fair use is very tricky and there’s no hard and fast rules. And more recently, whether legitimately or not, labels (and other copyright owners have been aggressively targeting even some tutorial videos on YouTube as detailed in the article on The Verge:
https://www.theverge.com/2019/5/24/18635904/copyright-youtube-creators-dmca-takedown-fair-use-music-cover
Even if a court would consider the video to be “fair use” and again, not every tutorial would qualify, it would be difficult to get around a DMCA takedown notice or a cease & desist notice without a lengthy – and possibly expensive – challenge. Best, Marc
Picking up on your comment on Lois Robinson’s post (4/2018), you stated that the orchestra has to pay a fee to use the performance materials for a Copland work. Is that for the rental of the sheet music or is there a “per use” performance fee for the sheet music?
When I purchase a print arrangement from Hal Leonard for my community jazz band. It has always been my understanding that I’m allowed to play that arrangement multiple times in public venues, as long as that venue carries a PRO license, without being required to pay an additional “per use” fee. Is that correct?
Another scenario, if an artist, like a Michael Buble, pays the publishers a licensing fee to create a “derivative work” for his custom print arrangement, would he or the venue be required to pay an additional “performance fee” every time he uses that arrangement at a Performing Arts Center or a casino in Las Vegas?
Hi Jeff – Orchestral materials are usually handled on a rental, rather than a sale, basis. And the rental fee is per performance. With respect to sheet music arrangements that are purchased, and wind ensemble, jazz ensemble, choral and small combos are usually handled on a sale basis there is no additional fee provided the venue has applicable PRO licenses. As For an artist like Michael Buble, the answer is “it depends,” The agency I mentioned in Lois’ post does require a per performance fee and they represent several major publishers and large independents. Best, Marc
So, the “agency” in Lois’ post was part of a well publicized lawsuit with a high school vocal group and it’s parent booster club. As you probably know, the defendants filed a lawsuit against the company that was paid for creating the musical arrangements in question. Their rational was the copyright statutes suggests the creator of the derivative work is liable for the licensing, not the performers, especially given they paid for the arrangements in good faith.
That secondary lawsuit was dismissed when the original suit was dismissed, because there were no potential damages to adjudicate.
What is your opinion of their legal argument that the creator of the derivative work is liable for licensing, not the performers. Is there anything in the statutes that suggests liability for the performer, like receipt of stolen property?
I’m aware of the lawsuit against this particular company. Irrespective of the right to create and distribute sheet music of the arrange under Sec. 106 of the Copyright Act, the public performing right is separate from the rights of reproduction and distribution and the creation of derivative work arrangements. So, even assuming the sheet music was obtained legally, the public performing right would still need to be licensed absent an exemption under Sec. 110. This is what the PROs, ASCAP,BMI, SESAC and GMR do. As a matter of copyright law, any infringer, in this case, of the right of public performance, could be liable. However, as a practical matter, the PROs only license venues, not performers. So while yes, the creator of the derivative work has to obtain permission for the Sec. 106 rights of creation, reproduction and distribution of derivative works, the public performance aspect is still subject to separate licensing. That’s why orchestras will pay a rental fee for the performance materials of works under copyright (e.g., Adams, Bernstein, Copland) to the music publisher but the venue still has to have PRO licenses for the separately licensed public performance rights.
I’ve been aware of most of this, thanks for the detailed clarification. What are the rules for this new movement I see, people performing and teaching covers of songs online and earning money through Patreon or other online funding avenues? They often post chords or fragments of arrangements in the videos. Often they give access to pdf’s of same for donating to their Patreon project. They are definitely earning money off other musicians’ creations. Where is the legal line there?
I think this would require a fair use analysis and as I explained in my 2 blog posts on fair use there is no bright line when assessing fair use and each individual situation is unique. But, regardless of the videos if they are distributing sheet music of their arrangements that would not be fair use.