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.

21 replies
  1. Janet
    Janet says:

    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?

    Reply
    • Marc
      Marc says:

      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.

      Reply
  2. john doe
    john doe says:

    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.

    Reply
    • Marc
      Marc says:

      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.

      Reply
  3. Michael
    Michael says:

    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.

    Reply
  4. Inquisitive
    Inquisitive says:

    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.

    Reply
  5. Jackson24
    Jackson24 says:

    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.

    Reply
    • Marc
      Marc says:

      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.

      Reply
  6. Ingrid Taylor
    Ingrid Taylor says:

    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?

    Reply
    • Marc
      Marc says:

      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.

      Reply
  7. S
    S says:

    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?

    Reply
    • Marc
      Marc says:

      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.

      Reply
      • S
        S says:

        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.

        Reply
      • S
        S says:

        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”?

        Reply
  8. Nathan
    Nathan says:

    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.

    Reply
    • Marc
      Marc says:

      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.

      Reply

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