By Jonathan Minkoff ©2009

Sarah’s been in the New York University Women’s College Bobbletones since her freshman year. She arranged every single one of the songs for 

the All-Michael-Jackson A cappella Tribute Album. They’re even thinking about inviting MJ and his publishers to their big concert and surprising them with the arrangements. But just as the group is about to go into the studio, Sarah has a huge fight with Jessika, the musical director.

“That solo on “P.Y.T.” was supposed to be mine, Jessika!”

“It’s a great arrangement, Sarah, but you already have two solos, and besides, Lakisha just sounded better on the upper notes.”

“Oh she did, did she? That’s crap! Go blow my “pitch-pipe”, Jessika! You guys think Lakisha’s so great? Then go do her arrangements on the MJ Tribute CD! Oh, that’s right, Lakisha doesn’t do any arrangements. Well, that’s going to be rough for the Bobbletones because I’m leaving and I’m taking the arrangements with me!”

“You can’t do that, Sarah! We already learned the arrangements! We just paid the royalty payments to the Harry Fox Agency! The concert is next week, the recording session is today and I’m sending the “Surprise!-We-Arranged-Your-Songs!” invitations out to MJ and his publishers tomorrow!”

“I don’t care! They’re my arrangements!”

Far fetched? Not really. Membership changes in a cappella groups are common  and those changes don’t always go smoothly. When someone stakes a claim it’s important to know whether they’re backed up by law or just a lot of hot air. 

So which is it? Can Sarah take her arrangements and go? Does she have the group by the ….uh… neck? 

Forget about whether it’s right or moral to do this at the last minute. Forget about the wasted efforts of her fellow singers. Those are debatable questions and the answers are subjective. 

The focus of this article is on legality: Does Sarah have the legal right to stop the Bobbletones from performing her arrangements of the MJ tribute songs? The answer may surprise you.

The key to solving this dilemma is the fact that the Bobbletones are “surprising” Mr. Jackson and his publishers. We don’t actually care whether MJ and his publishers are actually surprised; what we do care about is that neither Sarah nor the Bobbletones asked for permission to make these arrangements. Why is this important?

Arrangements are what the Copyright Act calls derivative works. Making derivative works is a right exclusively granted to the songwriter under copyright law. The arranger can claim a copyright only when the songwriter has granted that privilege to the arranger. But that’s not the case with Sarah. Like most a cappella arrangers, she heard the songs, liked the songs and put her heart and soul into arranging the songs. That's not enough to give Sarah ownership.

While it is legal for Sarah to arrange songs for a recording when the group pays the proper royalties for the songs, neither Sarah nor the Bobbletones actually own the arrangements of those songs. 

Not only can Sarah not stop the Bobbletones from using her arrangements, she also cannot stop each and every a cappella group in the country from making their own Michael Jackson Tribute CDs using her arrangements. 

And they don’t even have to ask permission or pay Sarah a penny.

Let’s change the facts a little. The Michael Jackson Tribute CD? Forget it. It’s gone. Instead it’s “Mozart’s Hottest Jams, Yo!”, a collection of Mozart’s most well-known pieces arranged in a hip-hop, funky new style. Again, Sarah has done all the arrangements. And again she storms out and threatens to take the arrangements with her. Can she do it this time? 

Yes! Sarah owns her arrangements of songs which are in the public domain. All Mozart’s works are in the public domain. The Bobbletones can still do a funky, modern, hip-hop version of the very same songs, but they can’t use Sarah’s exact arrangements. This time, Sarah owns a copyright in them. She doesn’t own the idea of doing Mozart in a modern way. But she owns her arrangements.

Let’s change the facts one more time before we call it a day. Forget the MJ, forget the Mozart. This time, Sarah wrote, not just the arrangements, but the songs themselves. She wrote the music and the lyrics and she even released the songs as an a cappella solo CD last summer to rave reviews. 

Now, just as before, she’s storming out and threatening to take the songs and her arrangements and walk. Can she stop the Bobbletones from recording her songs? 

No! Sarah released the songs on her own one-woman a cappella CD last summer. In a very real sense, those songs have been set free. So long as the Bobbletones pay Sarah the statutory royalties –the same royalties that Mr. Jackson was entitled to for the use of his songs- then they do not need Sarah’s permission. 

As you can see, seemingly small details often make all the difference in legal outcomes. For instance, do we get the same results in international waters? What if Sarah translated Mozart’s lyrics into Spanish? What if she added her own lyrics to Mozart’s melodies? What if she recorded, but didn’t release the original songs she wrote? (If you really care to examine these points in detail, drop me an email. But for now the answers are: 1) No. 2) She owns a copyright in them. 3)Same as #2. 4) She can prevent anyone from recording her music because she hasn't released the songs and she has the right to be the first. By the way, if I knew how to print these answers upside down, like on those kid menus with puzzles, I would do it.)

We use our intuition and our sense of fairness and morality to guide our actions. These powerful tools usually allow us to reason fair solutions, often based on “Things-I-Learned-In-Kindergarten” principles (don’t steal, be nice to others, clean up after yourself, etc.). 

But life and the law are nonetheless filled with unexpected departures from this path. There are times when commonsense is curtly rejected like a pimply–faced geek going for the grab at the Jr. Prom, and intuition is hit over the head with a frying pan like a … uh cartoon character who is … hit over the head with a frying pan. 

The harsh truth is that one’s intuition regarding copyright law tends to be severely hampered if one has never actually read the Copyright Act. This is often a source of great frustration for laypeople.

(“Laypeople” is the name lawyers use to describe non-lawyers. The derivation has nothing to do with actually “laying” anything (egg or otherwise), but the term simply begs for some good cracks about being “screwed” by lawyers, so feel free to insert your own oh-so-hysterically funny joke here. Ha. I’ll go cry myself to sleep now.)

Now you're in the know. You're armed with more than just a gut instinct. And you can politely tell Sarah that though you hope she reconsiders, you're going to record her MJ arrangements anyway.

Important legal disclaimer: Nothing in this article is legal advice. It's merely a general discussion of the law, and sometimes it’s just me rambling on. Allow me to specify: if you have a specific question or situation requiring legal counsel, you need to speak to a specific lawyer personally who will ask you specific questions about your specific situation which will allow him to do specific research in order to give you specific advice.