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. 
 


Comments

12/26/2012 03:51

Great article! I have a very interesting situation. I have written an arrangement of a public domain musical work but while arranging the work I used a 'descant' from a different arrangement of the same work in my arrangement. The arrangment with the borrowed descant is under copyright and has been recorded many times. My arrangement uses the descant but is clearly not the same arrangment. Do I need permission to use the descant? Would I have to pay royalties?

The question is about arrangements of arrangements of public domain works. What if I used the same vocal harmonies and changed the piano part?

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12/27/2012 12:49

Devin,

Fascinating question. And really impossible to answer without actually hearing the material in question. But, without doing any research at all or even hearing the descant or the original, I would say that
1) Your safest bet is to avoid using the copyrighted descant; and
2) The longer more involved, more creative the descant, the more protected it is.
3) If you do use this descant, and it is copyrighted, you will need permission from its composer or you will open yourself up to claims of copyright infringement.
4) I would suggest contacting the composer directly and asking if providing credit would be sufficient: Arranged by Devin Roth; descant arranged by Joe Shmoe.

As always, I must remind you of this important legal disclaimer: I'm "a" lawyer, but I'm not not your lawyer. Nothing here is legal advice. It's merely a general discussion of the law, and sometimes it’s just me rambling on. If you have a specific question (and it does seem like you do) or situation requiring legal counsel, and you need accurate advice, you must engage the services of your own lawyer 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. It will likely cost money and take more time, but it's how you get reliable legal advice instead of educated guesswork, like my response. :-) Good luck!

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Kay Leach
01/07/2013 22:26

I loved reading your article! I sing in a women's vocal trio and I also do some arranging for the group. We fell in love with a song by an up-and-coming bluegrass group that we heard perform live several months ago and we decided that we wanted to find the sheet music to that particular song.

I contacted the group and one of the band members said that there was no sheet music in existence because they play by ear. The band member then said he gave me permission to transcribe their recording and write my own arrangement. I still have his email stating this.

I went on to transcribe, as closely as possible, what I heard in the recording (a 4-part men's group). Then I also created a 3-part women's arrangement.

My question is - am I legally considered the "arranger" of these pieces? The band said they would like a copy of the sheet music but I want to make sure my name is always attached to it and that I am attributed as the "arranger" of both pieces. Can I collect royalties on any sales? Thank you for any help you can offer!

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01/10/2013 12:01

Kay,

Great question! The best way to think about these issues is to slice up copyright into tiny permissions or rights. The email you describe ("he gave me permission to transcribe their recording and write my own arrangement.") seems to give you the right to *prepare* an arrangement. That would mean that you didn't infringe the composer's rights when you made your arrangements. That's one right. But the right to sell that arrangement is something else. You will need to get permission from one of the composers to do that. And in that new agreement, you can agree to any terms you both like: an even split; all to you; all to them; or anything in the middle. The agreement is whatever you negotiate.

And on a separate note: if you are located near DC or Chicago, I hope your trio will consider coming out to the SingStrong Festivals. www.SingStrong.org has all the info! Good luck to you guys!

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Patrick
02/19/2013 11:31

So if I arrange a song and my group performs it for a while, and then I leave the group, can I "take my arrangements with me?" Is there any circumstance under which Sarah has the legal rights to her arrangements of non public domain materials in a live performance setting? And can the group "beat her to those rights," so as to ensure their ability to perform her arrangements after she leaves? Even if she doesn't want them to?

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02/19/2013 21:27

Patrick- Hey great question! The issue here is the meaning of "your". Arrangements of non-public domain songs made without permission of a composer are not owned by anyone. Anyone can use the arrangement without owing a penny or even a thank you to the arranger. It seems cruel, but it's true. If however, the composer gives you permission, then you can indeed own "your" arrangement of their non-public domain song. I hope that helps! Please read the other two arranging articles on here for even more information. And best of luck!

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Bridget
05/19/2013 21:28

If I am the composer, can I prevent someone from using my songs for arrangements?

In other words, can I not allow a song to be sung or performed by anyone but me?

What law exactly allows someone to perform a song without permission? or make and perform an arrangement without permission?

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05/23/2013 00:54

Bridget,

Great question! If you are the sole composer, then you CAN prevent your song from being performed sung or performed by anyone but you. The law "exactly" that grants you this right is 17 USC §106 (4) which states that authors have the EXCLUSIVE right to "to perform the copyrighted work publicly". Exclusive rights mean that you can just say "no".

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05/23/2013 01:35

And for your list of exclusive rights, here's the list, direct from the Copyright Act:

the owner of copyright ... has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Jessica
08/23/2013 22:35

A children's theatre is having me an acapella Disney mash up for them to compete at a competition in Disney world. I'm using less than 30 seconds of every song. I found out recently for this competition, their songs have to have published sheet music. If I get this published, do I have to pay royalties on every single song? They will not get any money from this. They will not sell tickets, and they are not paying me to arrange it. Do we still need to ask permission, etc?

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08/26/2013 17:58

Jessica, you'd like to know the terms for using songs in a published arrangement. In that question are two questions: 1) What can publishers/composers charge you for the right to arrange? 2) And can you use short snippets without paying? The answer to #1 is that they can charge anything they want or deny permission or never even return your communication (same as a no).The answer to #2 is more complicated and can be found here:

http://www.acappella101.com/1/post/2012/02/fair-use-using-others-works-without-permission-or-payment.html

I would examine the rules of the competition closely. They may only say that the arrangement has to be written, rather than published. And I would make the Children's Theatre hiring you solely responsible for any rights or royalties in a written agreement. This is only fair since they are the ones getting the benefit of your work.

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Nathan
10/09/2013 01:55

Thank you for these articles, Jonathan, much appreciated.
I have about 30 arrangements under my belt, and what I'm gathering from your articles is that it is illegal to sell the sheet music to these arrangements unless I get permission from the composer. I have many friends who have been selling their arrangements and it seems like that is something that happens frequently in the vocal world. Are all these arrangers taking huge legal and financial risks? Is there any way to legally sell the sheet music of an arrangement, or a collection of arrangements?
Also, I was wondering about the legality of accepting a commission to make an arrangement. What are your thoughts on this?
For example check out this site: betteracappella.com- it is ripe with arrangers charging for their music and taking commissions. Are they all acting illegally? Would a copyright agency or artist really track these arrangers down and sue them? Does that actually happen?

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10/09/2013 09:58

Nathan,

I think that the questions you are asking might well be answered by this article:

http://www.acappella101.com/1/post/2012/02/the-legality-of-arranging.html

I hope that's helpful to you!

Jonathan

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david
01/14/2014 02:21

I have been commissioned to re-arrange on of my arrangements of a public domain tune, a hymn tune. I already self publish both keyboard and small ensemble versions - the new commission is for a more fully-orchestrated version. The performing organization is asking for the copyright, so they can use it for their own performing and fund-raising purposes (recordings, score rentals, etc.). Is it possible grant a copyright or license for only the orchestrated arrangement, without foreclosing all my other opportunities with this tune? This derivation is based on work that has been previously released (I make my organ scores publicly available), but there is some new material as well. Plus all those instruments!

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01/14/2014 11:51

David,

Great question! Copyright is a bundle of rights that can be separated and divided into very small components. What you want to do is create a license in which YOU continue to own the copyright but you also grant this organization just the precise rights which you will spell out in a written agreement signed by both parties. There are several reasons why you should not grant the copyright itself. Your agreement should specify that all rights not granted by this agreement are retained by the copyright holder. The rights you give away/sell can be limited by time, geography and use. For instance, you could grant the right to duplicate, disseminate and display your arrangement in paper versions sold or gifted within the state of Texas only. I hope that helps. And as always, if there is real value in this transaction, an attorney will greatly assist you in writing these terms up properly. But some agreement is better than no agreement and better than just transferring copyright, which I do not recommend for many reasons too complex to discuss here. Good luck!

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Betsy
04/15/2014 09:09

I have arranged a well-known song for my barbershop quartet, because we couldn't find a published arrangement in the womens barbarshop genre. I have already paid for several copies of the sheet music I used to transpose the song into a barbershop arrangement. Do I need to pay the publisher or someone else more money to sing the song in public?

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04/15/2014 11:07

Betsy,

You probably don't. It is generally the venue you perform in that will be held accountable for securing a blanket performance license from the composers societies, ASCAP, SESAC, BMI,and/or Sony. The license will be for the public performance of the composition and should cover your live performance. I hope that helps!

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