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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.

Five Things Composers Should Ask About Working With a Publisher

In December, I was invited by Jennifer Higdon to speak about various aspects of the music business to the Curtis Institute’s Composers’ Forum. I was peppered with some very pointed questions about the music publishing prospects for emerging composers. The students were justifiably skeptical because a publishing deal isn’t for everyone. But there are also alternatives besides signing your works away to a publisher or doing everything yourself.

Here are five questions a composer should ask to determine whether a publishing deal makes sense:

1. What exposure do you already have? Just as a record label won’t sign a band that doesn’t already have a following and a self-produced album, publishers need to see that you are worth the investment of their resources. So, if you already have a resume that includes performances, awards, commissions and residencies (not all boxes need be checked) that’s a foundation a publisher can build upon. It also shows that you’re serious about your career and are willing to work at it.

2. What kind of works do you mostly write? Publishers are best when dealing with large-scale works such as orchestral works or operas. And even if a composer submits a Sibelius or Finale “manuscript” it’s still very costly and time-consuming to produce performance materials acceptable to professional orchestras and opera companies. Because they are voluminous and expensive to produce, performance materials for symphonic and operatic works are rented rather than sold. Publishers make the most money, both for themselves and the composers they represent, from the rental and performing rights income.

Works for smaller ensembles, such as string quartets, works for solo piano, piano and voice and other ensembles of say, eight players or fewer, are mostly sold rather than rented. After deducting print costs, publishers make much less money off of these works. Public performance income is also typically much lower than a larger-scale work of comparable length. Similarly, works for concert band or chorus are also sold rather than rented. These will be “new issued” like books and will generate sales in the first year or two. After that, unless the composer continues to supply new product, i.e., new band or choral pieces, a single work will likely languish – as far too many composers have found out the hard way.

3. Who’s performing your music? If you’re a member of an ensemble and you write for that group there’s no need for a publisher intermediary. You also have to ask yourself if you really want other groups to perform your music. And even if you do, if your ensemble has unique instrumentation it’s less likely that other groups will program your works.

4. Will a publisher promote my music? Publishers have long-established relationships with artistic administrators at orchestras, opera and ballet companies, as well as domestic and international music festivals, individual conductors and soloists. However, all publishers have an existing roster of composers that need care and feeding. For example, at Boosey & Hawkes, where I used to work, not only do they have living composers like Adams, Reich and Rouse, but the heirs of Bernstein, Carter, Copland, Stravinsky and many others still want these composers’ works programmed as much as possible. Classical publishers haven’t been immune from the ills that have plagued the music industry for more than a decade. And everyone’s promotion staff is stretched thin. That said, some publishers do a better job than others. Ask around.

5. Do I really want to handle the business of being a composer? This includes photocopying and shipping scores and parts, negotiating commissions and license agreements, managing expenses and being your own publicist. Some composers are good at this and enjoy it. Others, not so much.

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In short, if you are a composer that writes mostly smaller-scale works, particularly if it’s for your own ensemble, you may well be better off selling downloads from your own web site.

However, if you:

– want to write large-scale works
– have an existing catalog that’s generating some income
– are getting commissions and performances
– have gotten some awards and/or a residency or two

Then, a publishing deal may be something to consider.

However, publishers sign very few composers. Boosey, Schirmer, Presser, Peer, Peters, Schott, Subito and any others will sign only about a handful of composers a year combined – not each. That’s less than a composer per publisher per year. Why? Because it’s a very expensive, long-term commitment and each of these publishers has continuing obligations to its existing composer roster.

Bonus Question: What should I ask if a publisher’s interested in me?

Here are five basic questions to ask:

– Will they pay an acquisition fee for my “back catalog” of pre-existing works?

– Will they pay an advance on royalties for works written during the term of the contract?

– Will I retain ownership of any portion of the copyrights to my works or will the publisher own them outright? In other words, am I being offered a publishing, co-publishing, administration or distribution deal – or some combination of them?

– What are the royalty splits for various income types (print, rental, grand rights, synch, etc.)?

– How will they promote my works, including increasing my income and getting commissions for me?

Those are just the preliminaries. A typical publishing contract has many other terms that need to be understood and often negotiated. Entering into a publishing agreement can be the most important career decision a composer can make. Any composer contemplating signing up with a publisher should consult with a knowledgeable attorney. And a good lawyer can also suggest and negotiate possible alternatives to a pure publishing or pure DIY relationship, such as hiring a publicist, administrator or music distributor.