copyright?

[SGlong]

I have a question regarding copyright issues.
I recently paid to have an arrangement written for me. Who owns the copyright?

[BGuttman]

If part of the agreement was that copyright was transferred to you, you own it.

If the piece you had arranged was already under copyright, the copyright remains with the original owner.

If the piece was PD, and you didn't arrange for copyright transfer, the copyright remains with the arranger.

Note that if you want to sell this arrangement, I'm sure the arranger won't object as long as his title to the copyright is clear (and you pay some royalties -- usually a small percentage).

[sungfw]

Note that if you want to sell this arrangement, I'm sure the arranger won't object as long as his title to the copyright is clear (and you pay some royalties -- usually a small percentage).

If the arranger owns the copyright, I don't think you can safely assume that to be the case.

Copyright grants the holder the exclusive right to profit from sale of the work, so, absent written permission from the copyright holder to sell copies, the only way in which the arrangement can legally be sold is via first sale exhaustion of rights, by which you sell ONLY legal copies and surrender all rights that attach to those copies, including any authorized copies and destroying all unauthorized copies prior to or upon completion of the sale. And even if you do obtain permission to sell copies, the copyright holder has the right to dictate the terms of the permission, including the sale price and how little or how much of a commission the seller receives. Royalties don't enter the picture unless the copyright holder assigns the work to a publisher or another third party for the purpose of marketing and/or managing the copyright.

[LeTromboniste]

I have a question regarding copyright issues.
I recently paid to have an arrangement written for me. Who owns the copyright?

By default, the person who created the content (in your case the arranger, assuming they had the right to make an arrangement in the first place). For example, as an engraver/editor, I retain the rights to my edition even if I was hired by a client to prepare it. They're free to use it for their performance or recording or whatever project it's part of, but they can't publish it, sell it or share it with a third party without my approval. Even though they might have paid me a 4-figure amount for the service, in terms of copyrights it is the same as if I had published it and they had bought a copy for $100.

The situation would be different, at least in certain jurisdictions, if the work was part of a salaried position (i.e. not freelance/contract-based). For example if you work for Microsoft as a software developer, Microsoft owns the rights to whatever lines of code you write, not you. Legally, the company is creating content, not individual employees within it. But so in your case unless the person is actually employed as an arranger for your company as opposed to an external contractor, you don't get the copyright just because you paid them for the service.

(unless specified otherwise in your contract of course)

[JohnL]

(unless specified otherwise in your contract of course)

This is important. If you're going to pay someone to do an arrangement, make sure you're both on the same page as far as who owns the copyright and put it down in writing. A few years back, I paid someone to do takedowns of the 1906 BSO trombone quartet recordings with the intention of putting them out on the internet under a Creative Commons license (this intention was clearly stated in one of my emails to him). He wasn't an unknown, so I felt confident in paying in advance for his time. When the music arrived, it had his copyright on it. End of project. I couldn't even try again with a different arranger, as he could easily tangle me up in red tape claiming that the work was substantially the same as his (after all, it was a takedown). We ran through one of the arrangements a couple times at Bones West, but they've otherwise never seen the light of day as far as I know.

[harrisonreed]

I have a question regarding copyright issues.
I recently paid to have an arrangement written for me. Who owns the copyright?

By default, the person who created the content (in your case the arranger, assuming they had the right to make an arrangement in the first place). For example, as an engraver/editor, I retain the rights to my edition even if I was hired by a client to prepare it. They're free to use it for their performance or recording or whatever project it's part of, but they can't publish it, sell it or share it with a third party without my approval. Even though they might have paid me a 4-figure amount for the service, in terms of copyrights it is the same as if I had published it and they had bought a copy for $100.

Not in the US, at least. You still have to have the venue pay ASCAP or whoever represents the copyright holder for the performance fee, or pay for synchronization licenses for video, or pay mechanical license fees for audio recordings.

In my experience mechanical fees at least get split at various percentages between the arranger, the songwriter, and sometimes the publisher.

[LeTromboniste]

By default, the person who created the content (in your case the arranger, assuming they had the right to make an arrangement in the first place). For example, as an engraver/editor, I retain the rights to my edition even if I was hired by a client to prepare it. They're free to use it for their performance or recording or whatever project it's part of, but they can't publish it, sell it or share it with a third party without my approval. Even though they might have paid me a 4-figure amount for the service, in terms of copyrights it is the same as if I had published it and they had bought a copy for $100.

Not in the US, at least. You still have to have the venue pay ASCAP or whoever represents the copyright holder for the performance fee, or pay for synchronization licenses for video, or pay mechanical license fees for audio recordings.

In my experience mechanical fees at least get split at various percentages between the arranger, the songwriter, and sometimes the publisher.

Yes you're right, I was still talking about my example of editions there. For arrangements and original compositions that are not in the public domain, you indeed usually have to pay fees, although that usually doesn't involve dealing with the content creator directly.

[harrisonreed]

Not in the US, at least. You still have to have the venue pay ASCAP or whoever represents the copyright holder for the performance fee, or pay for synchronization licenses for video, or pay mechanical license fees for audio recordings.

In my experience mechanical fees at least get split at various percentages between the arranger, the songwriter, and sometimes the publisher.

Yes you're right, I was still talking about my example of editions there. For arrangements and original compositions that are not in the public domain, you indeed usually have to pay fees, although that usually doesn't involve dealing with the content creator directly.

Now you've got me thinking. If an arrangement is made of a public domain piece, say a Bach Cantata arranged as a Death Metal tune, that arrangement would still be copyright protected right? That would be awesome if I have got that wrong.

And to bring it back to the OP, I thought best case scenario the arranger would still split the rights/profits with the original copyright holder. I'm also curious to hear if a customer can receive any sort of ownership of a derivative work that they didn't arrange themselves.

[LeTromboniste]

Now you've got me thinking. If an arrangement is made of a public domain piece, say a Bach Cantata arranged as a Death Metal tune, that arrangement would still be copyright protected right? That would be awesome if I have got that wrong.

Yes, the arrangement would be copyright protected. The threshold of originality required for a work to be protected varies between jurisdictions, but normally, an arrangement meets that threshold and creates new copyright.

And to bring it back to the OP, I thought best case scenario the arranger would still split the rights/profits with the original copyright holder.

Arranging a work that is under copyright protection without permission from the right-holders is generally not legal at all, with a few fairly narrowly-defined fair-use exceptions. Baseline is you need permission from the right-holders to create any derivative work based on their original work. How the profits are split or how much you need to pay to get the rights to create a derivative work depend on the agreement you reach with the right-holders.

There is one particular exception to the requirement of having permission: if you have a compulsory license for recording, that includes the right to make an arrangement and record it without permission, BUT in that case
A) the arrangement can't denature the original work; and
B) the arranger does not receive any copyright protection for their arrangement (i.e. the rights still belong to the original work's right-holders).

I'm also curious to hear if a customer can receive any sort of ownership of a derivative work that they didn't arrange themselves.

If the arranger is willing to sell them the rights, sure. (assuming the arrangement was created legally)

[sungfw]

And to bring it back to the OP, I thought best case scenario the arranger would still split the rights/profits with the original copyright holder.

You have it exactly backward. If the underlying work is in copyright, an arranger has NO rights beyond what the copyright holder explicitly grants, even if the arrangement was commissioned by the copyright holder, so if there's profit to be split, it's the the copyright holder who[s doing the splitting, not the arranger. The copyright holder is free to split the profit with an arranger, but there is under obligation to do so.

If the underlying work is in the PD, absent an agreement that the arrangement was made as a work for hire, the arranger owns the copyright, and neither the person/entity who/that commissioned the arrangement nor the holder of the original, expired, copyright is entitled to any portion of the profit accruing the arrangement.

I'm also curious to hear if a customer can receive any sort of ownership of a derivative work that they didn't arrange themselves.

Under US law, the only circumstance sin which a customer receives ownership of the copyright is if the work is specifically created as a work for hire, or the copyright holder assigns the copyright to the customer.

[robcat2075]

undone

[LeTromboniste]

You hired someone to arrange something?

From the US Copyright office.

https://www.google.com/url?sa=t&rct=j&q ... AM6xlYIgK0


Copyright.jpg

This is the default situation. It is not necessary for the employer to explicitly retain the copyright in the contract.

This would be true in the case of a new arrangement of a work owned by the employer.

This would be true in the case of a new arrangement of a PD work.

If the original work was still copyright by someone else... then it is more complicated and both the employer and the employee arranger may be SOL.

That is incorrect, and is very much not the default situation. "Work for hire" is very narrowly defined in the law as work done by an employee (an independent contractor is not an employee), or by independent contractors in very specific cases. In other words, if you hired a freelancer for work that does not correspond to one of those specific cases, it cannot be considered work for hire. The creator is allowed to transfer their copyright to the client if they wish to, but it is not the same as work for hire, and is certainly not automatic.

Per 17 U.S.C. §101:

A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

[harrisonreed]

Yeah, sorry, I was not clear. I meant best case scenario, as in a situation where the arranger had negotiated a contact that:

1) gave them permission to arrange the work in the first place.
2) allowed them some sort of profit. Either they were involved in a major project and negotiated a percentage of the licensing fees going forward, or are allowed to sell the derivative work as publisher and are obligated to pay a fee to the copyright holder each time the work is printed, and then with no actual control over who can perform it -- that would still belong to the copyright holder.

Arranging a work that is under copyright protection without permission from the right-holders is generally not legal at all, with a few fairly narrowly-defined fair-use exceptions. Baseline is you need permission from the right-holders to create any derivative work based on their original work. How the profits are split or how much you need to pay to get the rights to create a derivative work depend on the agreement you reach with the right-holders.

There is one particular exception to the requirement of having permission: if you have a compulsory license for recording, that includes the right to make an arrangement and record it without permission, BUT in that case
A) the arrangement can't denature the original work; and
B) the arranger does not receive any copyright protection for their arrangement (i.e. the rights still belong to the original work's right-holders).

I have still wondered if one would be in trouble for recording a piece that only has the parts available for hire, calling it a "cover version" of the full orchestral version as previously recorded, but using the piano reduction or study score to build your arrangement. Lots of publishers have warnings about recording "for hire" works and how to get permissions to do so, but as far as I know you don't actually need the sheet music to record a cover arrangement.

The audacity of a CD release of, say, the Kalevi Aho Symphony 9 played from the study score that had been extracted into parts as allowed by the arranging provision in the compulsory licenses law. Or just by a computer reading the study score. Or a recording of the piano reduction with trombone and saying it is a cover of the previously recorded full orchestral version.

[BGuttman]

We're really getting into the weeds here. You may need to have the opinion of a proper Intellectual Property attorney to answer those questions.

[harrisonreed]

We're really getting into the weeds here. You may need to have the opinion of a proper Intellectual Property attorney to answer those questions.

Yeah, I agree. Is always interesting to think about, for me. Sorry if I completely derailed.

[sungfw]

The audacity of a CD release of, say, the Kalevi Aho Symphony 9 played from the study score that had been extracted into parts as allowed by the arranging provision in the compulsory licenses law. Or just by a computer reading the study score. Or a recording of the piano reduction with trombone and saying it is a cover of the previously recorded full orchestral version.

Purchase of a score does not automatically convey the right to perform it publicly, much less the right to record it unless the copyright holder specifically grants those rights as part of the terms of purchase: it merely conveys ownership of the paper (or digital file) the score is printed on, the right to study the score, and the right to perform it in private within one's ordinary circle of family and friends. ANY public performance or creation and distribution of a recording requires a license from the copyright holder.

Also, the compulsory license scheme only licenses recording a work and distributing copies of that recording, and it only applies to sound recordings; it does not apply to arrangement or distribution of sheet music or recordings made from sheet music.

[harrisonreed]

The audacity of a CD release of, say, the Kalevi Aho Symphony 9 played from the study score that had been extracted into parts as allowed by the arranging provision in the compulsory licenses law. Or just by a computer reading the study score. Or a recording of the piano reduction with trombone and saying it is a cover of the previously recorded full orchestral version.

Purchase of a score does not automatically convey the right to perform it publicly, much less the right to record it unless the copyright holder specifically grants those rights as part of the terms of purchase: it merely conveys ownership of the paper (or digital file) the score is printed on, the right to study the score, and the right to perform it in private within one's ordinary circle of family and friends. ANY public performance or creation and distribution of a recording requires a license from the copyright holder.

Also, the compulsory license scheme only licenses recording a work and distributing copies of that recording, and it only applies to sound recordings; it does not apply to arrangement or distribution of sheet music or recordings made from sheet music.

That's why I mention a CD release...in the first sentence you quoted... Nowhere did I talk about a public performance, because I know that would be illegal.

You can record the Kalevi Aho using a compulsory license, no doubt about that. But would they try to get you for using an arrangement (piano reduction), or circumventing their "rental parts only" scheme?

[sungfw]

That's why I mention a CD release...in the first sentence you quoted... Nowhere did I talk about a public performance, because I know that would be illegal.

You can record the Kalevi Aho using a compulsory license, no doubt about that. But would they try to get you for using an arrangement (piano reduction), or circumventing their "rental parts only" scheme?

Yes, you can obtain a compulsory license to record it. The part that gets you into trouble is:

The audacity of a CD release of, say, the Kalevi Aho Symphony 9 played from the study score that had been extracted into parts as allowed by the arranging provision in the compulsory licenses law. Or just by a computer reading the study score. Or a recording of the piano reduction with trombone and saying it is a cover of the previously recorded full orchestral version.

Purchasing a study score does not convey the right to perform the work, nor to extract the parts for any other purposes than study and analysis, only the right to study and analyze the work. To perform the work, you need both a performance license AND to purchase/rent the individual parts.

[robcat2075]

That is incorrect, and is very much not the default situation. "Work for hire" is very narrowly defined in the law as work done by an employee (an independent contractor is not an employee...

You're right. I'll delete my response.

[harrisonreed]

That's why I mention a CD release...in the first sentence you quoted... Nowhere did I talk about a public performance, because I know that would be illegal.

You can record the Kalevi Aho using a compulsory license, no doubt about that. But would they try to get you for using an arrangement (piano reduction), or circumventing their "rental parts only" scheme?

Yes, you can obtain a compulsory license to record it. The part that gets you into trouble is:

The audacity of a CD release of, say, the Kalevi Aho Symphony 9 played from the study score that had been extracted into parts as allowed by the arranging provision in the compulsory licenses law. Or just by a computer reading the study score. Or a recording of the piano reduction with trombone and saying it is a cover of the previously recorded full orchestral version.

Purchasing a study score does not convey the right to perform the work, nor to extract the parts for any other purposes than study and analysis, only the right to study and analyze the work. To perform the work, you need both a performance license AND to purchase/rent the individual parts.

But! And I mean this in a friendly way, as a debate -- can you not do a cover song of a much simpler tune, like 'Baby It's Cold Outside' without any sheet music at all? Are you not allowed to arrange it to fit the instrumentation and setting for your recording? (Rhetorical question, you definitely are). I think you're hung up on the word performance, as in, public performance, but that's not what I'm talking about. I'm talking about a recording session, which you do NOT need permission for so long as the recording is already released in the US. The recording is your ticket, not the score. I 100% agree that 100 musicians reading off of the study score in a public performance would be completely illegal.

We know that this simpler situation is totally allowable under compulsory mechanical license laws:

Harry loves Coldplay and wants to record a cover version of "The Scientist" for trombone and piano for hIs CD. This song has already been released on an album in the US, so he uses the compulsory mechanical license law to justify his recording. Under this law, he is allowed to arrange the piece to fit the instrumentation and musical setting for his cover version. He can change some of the harmonies, and even venture into the gray area of adding solos or drawing out a chorus or cutting a verse, but he is not allowed to change the lyrics (though some very high profile covers often change a word or two) and can't change the melodic structure of the piece. When this second part has been challenged in court, they usually have ordinary people listen to the original and the cover version. If the consensus is that they both sound like the same song, then too bad copyright holder -- it's a legit cover version. Harry gets together with one friend who plays piano and records the piece. Harry puts his 4'12" cover version on a CD and pays the compulsory license fee collection agency $0.095 for each copy he creates. He had no rights over the written arrangement he made, so he puts the sheets into a box and forgets about them. All legal.

If the example above is legal, how is getting together with a hundred friends and recording a full orchestral score based off of the original recording (as released in the US) not legal? Extracting parts by listening to the CD, or having a computer play the the study score might as well be the same thing. And, as we know, you are allowed to arrange the piece for the purposes of your recording, onto physical readable pieces of paper. If that arrangement looks exactly like the study score, that just means your arrangement is very faithful to the source material on the CD. If it looks remarkably similar to the piano reduction, that just means it was arranged for the instrumentation.

[sungfw]

Extracting parts by listening to the CD, or having a computer play the the study score might as well be the same thing.

They "might as well be the same thing" in your opinion, but, based on how courts have interpreted the compulsory license provision to date, it's highly unlikely that a court would find them to effectively be "the same thing."

As the IT and Media Director for a large church (weekly pre-COVID Sunday morning worship attendance ~1000), I spend an inordinate amount of my week attempting to keep up with curent and recent court cases pertaining to copyright law. [Disclaimer: this is not legal advice. Don't take legal advice from a stranger on the internet. I am not a lawyer and I haven't recently stayed in a Holiday Express.] Any time a church musician, which can be anything from a per service professional to an amateur volunteer, proposes doing something similar—which happens surprisingly regularly—I fire off an email, Cc: in the musician, to the church's lawyer, the church's insurance company lawyers, and the denomination's legal dep't (the latter two of which have divisions that specialize in IP law) and let them deliver the bad news. To date, no one has suggested that a transcription made directly from the realization of a sheet music score, regardless of how the score is read, is even remotely permissible as settled case law currently stands. (Not saying it doesn't or hasn't happened, legal advice notwithstanding; just that, strictly speaking, it's not permissible.) Unless and until that advice changes, that's my story and I'm sticking with it; if YOUR lawyers say differently, go for it. (Just remember: it's YOUR butt on the line, not theirs … and you're going to have to pay them to defend you if you rely on their opinion and get sued. )

[harrisonreed]

Extracting parts by listening to the CD, or having a computer play the the study score might as well be the same thing.

They "might as well be the same thing" in your opinion, but, based on how courts have interpreted the compulsory license provision to date, it's highly unlikely that a court would find them to effectively be "the same thing."

As the IT and Media Director for a large church (weekly pre-COVID Sunday morning worship attendance ~1000), I spend an inordinate amount of my week attempting to keep up with curent and recent court cases pertaining to copyright law. [Disclaimer: this is not legal advice. Don't take legal advice from a stranger on the internet. I am not a lawyer and I haven't recently stayed in a Holiday Express.] Any time a church musician, which can be anything from a per service professional to an amateur volunteer, proposes doing something similar—which happens surprisingly regularly—I fire off an email, Cc: in the musician, to the church's lawyer, the church's insurance company lawyers, and the denomination's legal dep't (the latter two of which have divisions that specialize in IP law) and let them deliver the bad news. To date, no one has suggested that a transcription made directly from the realization of a sheet music score, regardless of how the score is read, is even remotely permissible as settled case law currently stands. (Not saying it doesn't or hasn't happened, legal advice notwithstanding; just that, strictly speaking, it's not permissible.) Unless and until that advice changes, that's my story and I'm sticking with it; if YOUR lawyers say differently, go for it. (Just remember: it's YOUR butt on the line, not theirs … and you're going to have to pay them to defend you if you rely on their opinion and get sued. )

You keep talking about live performances... At least that's what I gather since you mentioned a church group. I give up lol.

[Posaunus]

So apparently the lawyers (and courts) rule the world, sucking all the creativity out of any artist who dares to build on what's out there, because someone copyrighted some version of it.

Pathetic!

I can just imagine their stormtroopers patrolling every church in the land to enforce their rules!

Where does this put jazz improvisors?

[sungfw]

When this second part has been challenged in court, they usually have ordinary people listen to the original and the cover version. If the consensus is that they both sound like the same song, then too bad copyright holder -- it's a legit cover version.

Source?

I'm curious to know where you got this from, because transcripts of court cases clearly show that the idea of the determination resting on "ordinary people listening to the versions" is little more than a convenient legal fiction, and that the determination rests on minute, detailed critical analysis of nature and extent of the difference(s) between the versions.

[BGuttman]

So apparently the lawyers (and courts) rule the world, sucking all the creativity out of any artist who dares to build on what's out there, because someone copyrighted some version of it.

Pathetic!

I can just imagine their stormtroopers patrolling every church in the land to enforce their rules!

Where does this put jazz improvisors?

This has been a complaint about copyright law since the concept was invented. If you can create a unique riff on an existing product, go ahead. That's OK.

There was a famous case a little over 100 years ago. Al Jolson wrote a popular song (Avalon) that sounded much like an aria in a Puccini opera. Puccini won the case. In later life Puccini said he earned more from Al Jolson's royalties than his composing.

Note that improvisation is not considered infringement on a song. The part that is copywritten is the actual melody, not the chord structure.

[sungfw]

You keep talking about live performances... At least that's what I gather since you mentioned a church group. I give up lol.

News flash for ya, buddy: there's this newfangled technology that you've apparently never heard of called "broadcasting" where you can transmit a live performance in real time and/or record the performance for upload to a hosting site for people to listen to after the fact. While US copyright law contains a "religious worship" exemption (US Code, Title 17, Section 110(3) that permits performance of in-copyright works in the course of religious services and at a place of worship or other religious assembly [NB: "at" not "originating from within," so even simultaneous transmission of a performance to a satellite campus is technically an infringement], the exemption does not extend to either recording or broadcasting of those performances, whether in real time or time-delayed [see Simpleville Music v. Mizell, 511 F. Supp. 2d 1158 (M.D. Ala. 2007), so the exact same copyright infringement considerations pertain to the recording of performances made in the course of religious services that pertain to recordings of performances made outside the course of religious services.

[sungfw]

Note that improvisation is not considered infringement on a song. The part that is copywritten is the actual melody, not the chord structure.

Uh ... not necessarily:

Jazz and Copyright Law

Questioning the Copyright Act: Is Copyright Doing It Right?*

Are Bad Copyright Laws Killing Jazz And Harming Jazz Musicians?

Copyright and the Jazz Musician

* Note, however, that Park materially misrepresents the facts of Irving Berlin, Inc. v. Daigle, in that: A) the defendant (Daigle) was the owner/operator of the venue, not the jazz musicians who performed at the venue; and B) while the court did find for Berlin, the total damages awarded was $30 ($10/infringement, not the $750 ($250/infringement) Berlin proposed.

[harrisonreed]

You keep talking about live performances... At least that's what I gather since you mentioned a church group. I give up lol.

News flash for ya, buddy: there's this newfangled technology that you've apparently never heard of called "broadcasting" where you can transmit a live performance in real time and/or record the performance for upload to a hosting site for people to listen to after the fact.

Sung, I'm sorry but communication seems to have broken down. The quoted comment above is ridiculous and insulting. I'm not sure why you're so hostile, or why you keep talking about live performances and video releases in response to what I wrote about recording a CD using compulsory mechanical licenses and a study score. These things have literally nothing to do with my idea to bypass rental parts for making an audio recording, but you keep referring to them like that is what I was talking about.

I'm sorry that you're so upset about what I am proposed. I have no desire to insult you or pick a fight.

[nogginbone]

Wow!

Not managed to read all this thread. Copyright seems even more complicated than I thought it was.

[BGuttman]

Wow!

Not managed to read all this thread. Copyright seems even more complicated than I thought it was.

It's even worse. There is an international copyright code, and each country has their own. Because a lot of the World Wide Web applications are in the US (this Forum, for example), we have to deal with US laws. They are probably different where you are in UK. Might want to find out how copyrights are handled there.