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copyright question about arrangements

Having paid publishers for permission to arrange various songs in the past, I'm wondering how this requirement is applied. Isn't any performance of a non-original song by a small combo playing from charts in a hotel lounge an arrangement? Isn't every non-original song sung by an a cappella group an arrangement? When a singer adds a repeat into a published song isn't that also an arrangement? Just to carry this to a ridulous end, isn't straying from the actual published edition in any way (changing the tempo, key or dynamic markings) an arrangement?
Replies (4): Threaded | Chronological
on December 10, 2012 11:23am
Hi, Jon, and let me suggest that your question is about semantics rather than the law.  It depends, in other words, on how you define "arrangement" (which under the law is called a "derivative work").  But of course that's exactly your question.
 
Since copyright law originated in regard to PUBLISHED works (the Statute of Anne of about 1707, usually pointed to as the original copyright law, protected publishers, NOT authors or composers!), its provisions primarily apply to published works.  In fact under the old U.S. law (1909) it was difficult to copyright an unpublished work and ANY work had to exist on paper to qualify for a copyright, while under the new law (1976) copyright adheres the instant it exists "in fixed form."
 
The charts your hotel band plays, if published, were written by permission.  If unpublished they SHOULD have been written with permission.  (If improvised, copyright law doesn't apply--it isn't in "fixed form.")  And performance fees are covered (or should be) by blanket ASCAP and BMI licenses covering the hotel lounge itself, NOT the individual bands that might play there.
 
Same applies to your a cappella group.  If their song is a published arrangement it was made by permission and public performance needs to be licensed.  If it's a head arrangement copyright doesn't apply to the ARRANGEMENT, but using the copyrighted song still requires a performance license.  (Same for your lounge band, and I forgot to include that.)
 
And yes, exactly the same applies to your last case, involving a published arrangement.  Improvised changes from the original don't come under copyright (and if they did every jazz version would have an individual copyright and require permission, and obviously that isn't the case, doesn't happen, and couldn't possibly be enforced).  But if it's a WRITTEN arrangement (i.e. a "derivative work"), yes, it requires permission for arranging plus the ever-present performance license.
 
Now the REAL gray area is when a copyrighted song has been arranged (with permission), and recorded (with payment of the recording license), and a garage band or lounge band learns it by ear off the recording and plays it in public.  No printed music at all--assuming that they could read it if it WERE printed!  And in that case the arrangement HAS been licensed, but to the original arranger and not the garage band, which is what makes it a gray area.  But since the underlying song IS copyrighted a performance license is still required, and most garage bands don't bother and couldn't care less.
 
And for your underlying question, yes, anything that makes a piece of music performable IS an arrangement, including the published original!  (My interpretation, speaking as a long-time arranger.)  We don't often recognize that in classical music, but it becomes glaringly obvious in musical theater and film, where the two jobs of composition and arrangement are split up and handled by specialists and not a single person.  But there are still two jobs!
All the best,
John
Applauded by an audience of 3
on December 13, 2012 7:21am
Thanks John. I appreciate your input.
I totally understand needing permission to perform, but I'm still a little fuzzy about what a "published" arrangement is. Is it any arrangement that's written down, even if it's not published and available for sale?
on December 13, 2012 10:28am
Jon:  I never claimed it was simple!!!  A "published" work is one that is offered for distribution, either by sale or for free.  There's no requirement that it be offered by an established publisher, or even that it be typeset rather than hand copied.  But it IS produced in multiple copies and it IS available for distribution, either for profit or not.
 
Under the 1976 revision of U.S. copyright law, the distinction betwen published and unpublished had basically been loosened, and copyright inheres AUTOMATICALLY in any work that exists "in fixed form."  Which can include recorded form, unlike the 1909 law which REQUIRED that it exist on paper.
 
So if I write an arrangement but don't make it available to anyone else, it isn't published.  But it MAY still be copyrighted.  In fact it WILL be copyrighted, automatically, either in my name OR in the name of the copyright owner of the original song I've arranged.  The law also does not require that a copyrighted work be made available, or that it be KEPT available, which is why so many conductors are justifiably mad at publishers who allow their copyrighted music to go permanently out of print.
All the best,
John
on December 14, 2012 6:18am
Thanks very much (again)!
 
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