by Jonathan Minkoff ©2009
Does a group need to get permission to arrange a song before performing it live? It’s a question that comes up a lot. The answer to that is
Most public performances take place in venues (schools, night clubs, theatres, etc.), and most (but not all) of these venues purchase blanket licenses from composers societies: ASCAP, BMI and SESAC. These blanket licenses expressly grant anyone performing in the venue performance rights. That’s why you are allowed to perform any songs in their very expansive combined repertoires. However, these blanket licenses do not expressly grant the right to arrange the songs being performed.
So does that mean you need to first contact the composer to ask for and pay for the right to arrange her song? I argue no. So let’s go a step at a time and see how I get there.
Here’s the question, worded in that annoyingly detailed way that lawyers word things: Does a group, publicly performing a song which is not in the public domain and has been released by another artist, in a venue which is operating under blanket ASCAP, BMI and SESAC licenses need to get permission from the composer(s) who is a member of at least one of said composer's societies in order to arrange the song for a performance in the venue?
Ah yes, now you remember why you dislike lawyers.
Now that we’re asking the right question, let’s examine this not-entirely settled area of law. We’ll start with a look at arranging for recording before we get to arranging for public performance.
If you timely pay the statutory fees, you can record any song which has been published and you can make your own arrangement for the purpose of making the recording.
Permission to record is not required because the copyright law provides for a compulsory license. (It’s called compulsory because although you must pay, they can’t say no to you.) Permission to arrange is not required because it is included in the right to record. This is not a grey area, just simple law.
You could leave it at that and just say that this is the way the copyright law is written, end of story. But then I’d call you a lazy so-and-so and you’d get all huffy and such, and we might get in to a tussle, especially if it was late, or we’d been to a compotation.
In the end, we’d make up because we’re friends and while you held a cold compress to your newly purplish eye, I’d use soothing words to convince you that it's important to think about the rationale behind this legal policy: Why did Congress grant, not only the compulsory license to record, but also the right to make an arrangement for that purpose?
As you gaze at me cyclopticly, I’d proclaim that the theory behind the statutory provision here is Congress’ wise recognition of the fact that there is no way to record without arranging. There is no such thing as a performance that does not also embody at least a slightly new arrangement, if examined in fine enough detail. Your one good eye grows wider as you begin to see the light.
Even if every single one of the notes were the same, the differences in timbre, tempo, dynamics, key, style, instrumentation, voicing, etc. would all contribute to whether the arrangement had been varied to some degree. Even a dead-on, sound-a-like tribute band would still vary the arrangement somewhat. And a varied arrangement, however slight, is a new arrangement.
So, if the right to record a song simply makes no sense unless it's accompanied by the right to arrange the song for that purpose, what about public performance?
There is no compulsory license to publicly perform a song. So in writing the copyright law, Congress didn't have to address the issue of whether the right to perform a song live must also include the right to arrange it for that purpose.
Because no compulsory license for public performance exists, composers could, if they wanted, completely refuse to allow any their songs to be performed live.
Thankfully, they usually don't take such a hard line approach. As we mentioned above, they tend to join composers societies, organizations which, on behalf of the composers, do grant others (usually venues) the right to perform their songs in exchange for money.
Paying attention? Cause, as Shakespeare said, here's the rub:
If every new performance of a song (for recording or live performance) is really a new arrangement, and you (through the venue) have paid for the right to perform, but not the right to arrange, then what right do you really have? What real-world benefit did the live performance venue pay for in purchasing that blanket license? No benefit at all!
Courts don't interpret the benefits of a contract to be illusory. There are twists and turns to the contract, details galore, but in essence, composers get money and venues get the ability to perform the composers’ songs.
Therefore, I argue, and the nearly uniform general practice follows that, the right to arrange for the purpose of performing under a venue's blanket license is IMPLIED by the blanket license itself.
If the contract were interpreted in any other way, the right to perform would be utterly worthless. Composer societies would have effectively defrauded live venues by taking their money and granting almost nothing in return. Venues could play recordings, but never have live musicians.
Trying to argue the reverse -namely that any live performance of a song which does not precisely conform to a preexisting arrangement authorized by the original composer is prohibited - is an impossible, if not laughable task.
Imagine that all live jazz improvisation was a violation of the composers' rights. It would have to be, since no pre-authorized arrangement would account for every note in the as-performed arrangement. If the arrangement as officially authorized called for a part that was too hard to play or a note too high or low to sing, well that would be too bad since simplification would be a new unauthorized arrangement and therefore a violation.
Changing the original instrumentation would always be a violation, of course. So 99.99% of all a cappella would be effectively banned since only songs with authorized a cappella arrangements would be performable.
Here's the kicker: the copyright law is, in some respects, a strict liability law. That means that, in certain instances, you don't even need to know you are violating someone's copyright to be held accountable. Simply trying and accidentally failing to perform exactly what was in the authorized arrangement could be a violation. So here, a mistake in the performance, a slipped hand on the keyboard or an incorrectly sung harmony could be a violation of the arranging right.
If that's not enough, the final nail in the coffin is this: not every single song in the ASCAP/BMI/SESAC catalogs even has a corresponding written arrangement available anywhere that can be purchased. Yet these songs are nonetheless being offered as part of the blanket license. Unless the intention of the contract was to allow only prerecorded music to be played, then the right to arrange simply must be implied.
But keep in mind, this is a narrow right.
Could the performing group also copy, sell, trade, post, gift, distribute, or display the arrangement? No. Could they claim to own their “own” arrangement legally? No. Could they stop others from singing “their” arrangement either live or in recording? No.
But could they make an arrangement which was absolutely necessary for the purpose of exercising their rights under the venue's contract with the composer?
I (and apparently every other performing group out there) think that the answer has to be yes.
As always, although I am "a" lawyer, I am not "your" lawyer. This article is NOT legal advice. It's just a general discussion of the law, a little chit-chat. If you need legal advice, you need to consult your own lawyer as to the specific facts of your specific situation.