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Rearrangement/Derivative Work Question

Hello friends.  I've explored these forums searching to see if this issue has been brought up before, and the closest I could find was a string of several conversations made over two years ago by the same person regarding a men's choir.  Therefore, I'd like to propose this question for consideration...
It regards taking an existing choral piece and "rearranging" it for a different set of voices.  For example, converting an SSA piece to SATB, or TTBB to SSAA, etc...
I've seen the phrase "derivative work" come up several times.  It seems that this clearly would fall under that.  At the same time, I have also seen postings saying that there is certain amounts of room allowed for "editing or simplifying" music to suit your specific scenario.
It puts me in a conundrum as I continue to explore this.  I am sure many of us have struggled with finding the line between creating a "derivative work" and merely "editing and simplifying" an existing work. 
For example, I could take an SSA piece and re-arrange it for SATB.  Naturally, three parts would have to become four, so there would be some additional "composing" going on.  That sounds like a derivative work to me.
Example #2- I take an SATB piece and re-arrange it for SSAA.  Theoretically, let's say that the only change I made was taking the original TB parts and displacing them up an octave to become the new S2 and A2 parts in a new score.  (This probably wouldn't work flawlessly in practice, but it's a theoretical example).  This involves me creating a NEW SCORE in a music notation program.
Example #3- This would be the same as example #2, but instead of creating a new score, I simply hand the SATB score to an SSAA choir and tell the S2's and A2's to sing the original TB parts up an octave.  No new scores are being created.
The question with these examples is, when does something cease to be "editing" and become a derivative work?  And can something be classified as a "derivative work" when the original score is used but the singers perform it in a "creative" way? 
Would one then simply contact a publisher and request permission to re-voice an existing work (by only displacing octaves) for use in public performance or worship? 
I would be very grateful for any help or advice on these hypotheticals.
on June 25, 2012 12:15pm
Hi, Nicholas.  You probably found some of my posts in the 2-year-old discussion, and nothing much has changed since then.
A "derivative work" is the legal term for any work that is based on a copyrighted work.  The making of "derivative works" is one of the bundle of rights reserved to the copyright owner, and therefore requires permission of that owner.  It always includes new arrangements, and logically would include new editions as well.  And in fact any derivative work that is made remains the property of the copyright owner of the original copyrighted work, unless there is a contract that provides otherwise.
And you're also correct that the Fair Use Guidelines allow an exception for "editing or simplifying" copyrighted music which has been legally purchased.  The important thing to note is that this is an EXCEPTION, and not a loophole to be exploited.  It also implies (but does not actually say) that your "edited or simplified" version cannot be published or otherwise distributed without obtaining the permission of the copyright owner.  In other words, it is an exception for your own use at a particular time and place, and was probably included in Fair Use simply because it would be too difficult to police in practice.
But there is no restriction under Fair Use on the FORM in which your "edited or simplified" version can be prepared or presented.  Therefore creating a new score is not specifically forbidden, whether in a computer program or by hand. 
And there is no provision either in the copyright law or the Fair Use Guidelines stating that music must be performed exactly as it is printed, which would also be impossible to police in practice, and which covers your questions about performing in a "creative way."  And just to complicate things even further, the right to record a copyrighted work, obtained by getting a mechanical license and paying the statutory fee, INCLUDES the right to create a "suitable" arrangement (i.e. a "derivative work") without additional permission, although it does provide that it should not change the basic nature of the work or words to that effect.  But that does not also include the right to publish or distribute your arrangement, a right which is still reserved to the copyright owner.
Fun, isn't it?!!!!
And to your final question, you may always contact the copyright owner (often but NOT ALWAYS a publisher) to request permission to do anything at all.  You may or may not get that permission, but you can always ask.  And for something as limited as displacing octaves they would probably rather not be bothered to know! 
And one last thing:  if performance royalties are due for public performance, they are due no matter how the music is arranged.  It is the underlying original copyrighted work that earns the royalties, never an arranger (although an arranger may earn a percentage of the published price per copy sold).  In fact there are no requirements under the law that published sheet music be purchased, and it is perfectly legal (although time consuming) to teach music by ear!  And there are already exceptions under Fair Use for performance in qualified educational use and in worship services.
All the best,
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on June 26, 2012 5:33am
Good morning, Nicholas.
John has done a very fine job of outlining the in's and outs of the Fair Use provisions as I understand them also. Let me be a little more succinct to your examples as I understand the law as a composer and arranger.
Anytime ANY copyrighted work is changed and put in a tangible (on paper or recorded) that goes AGAINST the copyright fair use allowances. Therefore, your first two examples would be illegal to distribute and perform. Your third example would be allowable as John has said, as such practice couldn't possibly be enforceable.
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