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Reader Questions & Answers: Copyright, Derivative Works, & Arrangements

by Randy Chertkow and Jason Feehan
07/23/2017

File Under: Reader Questions and Answers, Understanding Your Legal Rights

We constantly get great questions from readers and while many of them are specific to their situation, some of these questions cover topics any musician can benefit from. When a question like that happens, we like to share the answers in the DIY Advisor column. Today's question is about copyright and ownership when you arrange someone else's song.

Our thanks to our attorney friend, Ilya Zlatkin, practicing at Ziliak Law, LLC, who is a fellow member of 2112 in Chicago with us who graciously assisted in reviewing our column.

Q: If I take a song from someone else’s creation, and I make a piano arrangement, or a string arrangement, do I own any of the creative content or am I creating additional content for the copyright holder? Does the copyright holder have any control over me of the arrangement I create? And, if I include the melody but surround it by new content, does the content belong to the original copyright holder or to me? This stuff is confusing…

The DIY Advisor: You're correct in thinking this area of music and law can be vague, gray, and confusing. As always, the best advice is to talk to an attorney about your specific arrangement. Whenever you get in the murky world of copyright and derivative works, answers depend on the facts and subject to judgment and discretion. This is because money is at stake. So, while we don't know the work you've created, we can talk about copyright law, derivative works, and arrangements in general.

"Anytime you take preexisting material and do anything based on that material, it's technically a derivative work (as long as it's "fixed in a tangible medium," thereby making it subject to copyright law)," says Zlatkin. "The question then becomes whether or not you need to license the preexisting work to create the derivative work."

The only times you wouldn't need a license to re-arrange a preexisting work is when it's either:

  • Out of copyright
    This is when a song has fallen into the public domain, such as the song "Yankee Doodle" or Bach's Fugue in D Minor. If it's in the public domain, anyone can use it, including making arrangements.

  • An original song (and you own the Song Composition Copyright)
    If the song is one of your original compositions where you own the song composition copyright, then you can of course give yourself permission to re-arrange it without issue.

But if the song you're re-arranging doesn't fit one of these examples, then you'll need to obtain a license for the song composition. Of course, you wouldn't need to license the sound recording since you'd be arranging and recording your own version. The new sound recording you create will be owned by you as the sound recording owner.

To really hit the what needs to be licensed question home, Ilya shared the following example: Electric Light Orchestra's song, "Roll Over Beethoven". ELO's 1973 recording was a cover of Chuck Berry's 1956 classic, "Roll Over Beethoven". However, it also covered about 40 seconds of Beethoven's 1808 even-more-classic, Symphony No. 5. ELO's version was a derivative work of both songs. They had to get a song composition license to re-arrange Chuck Berry's original song, but, since Beethoven's symphony was out of copyright and in the public domain they didn't need to get a license to use and integrate his work into theirs.



Q: Can I record what I create?

The DIY Advisor: Yes, but, as explained above, you'll want a license. If the song you're re-arranging is not out of copyright, then you need to contact the song composition owner (known as the publisher) and obtain a license. This usually requires paying a fee to the owner. They have the right to say no or ask for money for your work. But, since it's common in our culture for musicians to cover, perform, or record other people's songs, Copyright Law created an exception in the Copyright Statute called a compulsory license which you might be able to use.

The compulsory license allows you to more easily license someone else's preexisting work so you can cover or re-arrange it in your style. Plus, it sets the license fee (currently set at 9.1 cents per copy you make), so that's the maximum you may have to pay. The steps on how to do this are written out here, but there are also services that can help you such as Harry Fox, Loudr, or EasySongLicensing.com.

There are limits though on what a compulsory license allows. For instance, it doesn't allow you to change the "basic melody or fundamental character of the work" beyond style and interpretation. So, if your arrangement changes the basic melody or fundamental character of the work then it's no longer allowable under a compulsory license. Unfortunately, there's no "bright line rule" that explains what exactly changes the "basic melody or fundamental character." It depends on your arrangement. Confused? That's because the law is leaving it up to the copyright owner or publisher and possibly judges and lawyers to determine the boundary in any specific case.

So, if your arrangement didn't meet the compulsory license requirements, you would instead need to talk to the copyright owner or publisher and get his or her permission. This would require a license and you'd both need to work out a royalty fee (which wouldn't be limited by statute like it is under the compulsory license exception).

Q: Can I perform my arrangement at a venue?

The DIY Advisor: Likely yes. When you perform a cover song you've arranged, typically the venue will pay for the performance, so you won't need to get permission or have to pay anything out of pocket. The venue is able to do this by paying for an ASCAP, BMI, or SESAC license. These licenses allow venues to allow published music to be played (think: radio, streaming, or jukeboxes) or performed (think: live music such as your band) in their premises.

Q: Can I sell in sheet music form my arrangement?

The DIY Advisor: No, unless you have permission from the copyright owner or publisher. Everything discussed above is about recording or performing music, not writing it down as notes on a piece of paper. For sheet music, you need the original copyright owner's permission to sell the arrangement's sheet music. They may say no. But if they say yes, they'll likely want a licensing fee, which they'd negotiate with you.

If you have more questions about copyright, we recommend the Your Rights chapter of The Indie Band Survival Guide (Remixed & Remastered: Second Edition) and the Lynda course Music Law: Copyrighting a Song by Richard Stim.

If you have any questions, you can write us at diyadvisor@indieguide.com.

Related:

#Licensing #Copyright #Permission #Arrangements #CompulsoryLicense

Photo Credit: opensource.com

Sheet Music for Beethoven's 5th: Wikipedia


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