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Permission to Arrange for Live Performance

2/2/2012

60 Comments

 
Permission to Arrange for Live Performance
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 

it depends on where you perform. Live in the shower? No, you don’t need permission. Unless you invite the public.
 
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. 
60 Comments
pushpavardhana
7/18/2013 10:30:03 pm

Hi sir,
Myself pushpavardhana,i live in india and i am 23 year old and i am planning to do a business so i decided to get all our localates in a field or a hall and play live cricket
and live funtions so everybody could watch together with their families so please let me know what are the legal procedure for this,i will be waiting for your reply

Reply
Pushpavardahana link
6/17/2014 12:06:51 am

I recommend that you speak to an attorney licensed in India to advise you. Good luck!

Reply
Sarah
3/19/2014 12:42:12 pm

So technically, I could arrange a song for my band, and as long as my school has the blanket license, it is legal?

(If the answer to that first question is yes) how does one go about purchasing a blanket license? I'm not sure if we have one or not.

Reply
Pete
6/16/2014 11:02:14 pm

I am wondering the same thing as Sarah. Would such an arrangement for a school's band or chorus also allow for sheet music to be printed for the musicians to perform it?

Reply
Jonathan Minkoff link
6/17/2014 12:04:42 am

My conclusion in the article above is that, although this a grey area and therefore there is some danger, a blanket license that covers the songs you plan to perform should give you the right to arrange solely for the purpose of the performance.

But to be on the safe side, I recommend that you also make at least one licensed recording of each song in addition to the blanket live performance license. This is because the right to arrange is specifically enumerated and included in the compulsory mechanical license. It is only implied in the performance license. And the additional cost of about a dime per song is so cheap, why not make sure you're covered?

Re getting a blanket license, go to ASCAP, BMI, SESAC and SONY's websites and purchase what you need!

Good luck!

JR
6/26/2014 01:28:29 am

If an a cappella group is performing songs for free in a school auditorium with no profit to them, would that require licensing? Additionally, if licensing was obtained, would they need to record the song in order to perform it live for free?

Reply
Jonathan Minkoff link
6/26/2014 06:55:24 am

JR,

You read above that...

"Most public performances take place in venues (schools ... etc.), and ... these venues purchase blanket licenses from composers societies: ASCAP, BMI and SESAC (and SONY). These blanket licenses expressly grant anyone (like your group) performing in the venue performance rights."

You appear to be asking whether it matters if a group or the venue charges admission. It does not matter. The venue still needs to purchase the blanket license, even if every show is free and even if they lose money.

If you are arranging a song, then in addition to the other rights, you need the composer's permission just to make the arrangement; OR you need to make a licensed recording which comes with its own right to arrange; OR you can rely on the logic in the article above, knowing that there is some risk involved.

I hope that helps!

Jonathan

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Cat
8/22/2015 08:10:28 am

I want to arrange a popular piece for my school's pep band to play at basketball games in our gym. They charge for the games, but I will not profit directly or give myself credit. Can I do this?

Reply
Jonathan Minkoff
8/24/2015 01:15:53 am

Cat,

That's the topic of the article above. Does your school pay for blanket licenses for the song you wish to cover? If so then "the right to arrange for the purpose of performing under a venue's blanket license is IMPLIED by the blanket license itself. " I will add an additional detail that the TEACH Act would probably not apply in this situation. Good luck!

Reply
Jason
1/5/2016 04:20:47 pm

This is a terrific resource. I've scoured the web for info on arranging permission since I'm working on a show right now that involves these questions. This gave me some great understanding on where the risks are and what is vs. is not clear. Thanks!

Reply
Jonathan Minkoff
1/5/2016 09:57:33 pm

Jason,

Thank you so much for the kind words! So glad to help!

Jonathan

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Samantha
1/21/2016 11:40:14 am

Congratulations Jonathan, this is by far the most comprehensive discussion I have ever seen on music arrangement licencing! Just wanted to check one thing. Assuming the appropriate licences are in place, either a recording licence or a performance licence, an arrangement is implied, but what happens to the physical copy of the arrangement, i.e. the sheet music? It can't be sold or posted on-line, without permission, but can it be used again by the same group or a different group of musicians? And could it be copied for that purpose?

Cheers!

Reply
Jonathan Minkoff link
1/21/2016 01:42:41 pm

Samantha,

Thank you so much for the kind words. To your question: Can a legally made arrangement be copied for another legal purpose? I would say probably yes.

Think of this as a chain of custody. All parties must have the right to make an arrangement of the song at the time they use an existing but unprotected or permitted arrangement to "make their arrangement".

The answer becomes no when the next purpose does not grant the next user the right to arrange.

So how could this work? 10 groups each pay compulsory licensing fees to record a song. The first group records and then passes the written arrangement to the second which records and passes to the third and onward. I would argue that this is legal since each sender and receiver had the right to make an arrangement at the time they copied the existing one.

The chain is broken by the group that has no right to the arrangement.

So how about a live performance in a venue with a license covering the song? Is it legal to make copies of an arrangement for that? I argue yes in my article, but that's not case law. So that's where a grey area begins. There's a reasonable position, but not a totally riskless one.

However, let's say the public performance is itself UNLICENSED. Now the arrangement is also unlicensed and the copying of the arrangement to learn it for the unlicensed performance is all part of an unlicensed chain. So each violation of the copyright holder's rights is its own separate harm. Each copy is copyright infringement, as is sending it, and publicly performing it, or making the arrangement, or displaying the lyrics, etc.

In short, this is tricky and can very easily turn on the specific circumstances. I hope that helps to answer your very perceptive question!

-Jonathan

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Samantha
1/21/2016 02:12:04 pm

Wow! So a perfectly legal sheet music arrangement suddenly becomes illegal through circumstances beyond the arranger's control? I follow the logic, but could this get the arranger into trouble, assuming as you say, the correct licences were in place at the time of the 'commission' but not in place for subsequent uses? Would there be a way to include a disclaimer on the sheet music itself, in the same way that there are photocopying disclaimers on sheet music?

Thanks for calling my question perceptive BTW!

Jonathan Minkoff
1/22/2016 09:10:36 am

Samantha,

If the arranger had the right to arrange at the time of making the arrangement, then absent any continuing control over its use, liability for any future copyright infringements that the arrangements are a part of don't fall to that arranger, but to the actor, the person who infringes by copying, disseminating, publicly performing, etc. In that case, the arrangement is largely ignored and the focus is on the underlying composition. This is because the arrangement is rarely protected by copyright. It is the song and its composers which are being harmed by copying, disseminating or publicly performing an arrangement of the song.

That said, a well-worded legal warning can certainly help support a particular legal position.

Jonathan

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Samantha
1/23/2016 11:47:00 am

Thanks Jonathan,

Do I sniff a potential loophole here? Given that the arrangement was made legally i.e under an appropriate licence (either PRO or mechanical) in the first instance, what is to stop the arranger offering the resulting sheet music for sale with the proviso/disclaimer that it is only to be used under an appropriate licence?

Would love to hear your thoughts!

Samantha

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Jonathan Minkoff
1/25/2016 01:41:58 pm

I'd say that this isn't a loophole exactly. Rather you have escalating arguments. If the arrangement was made pursuant to an actual, existing, timely and properly paid compulsory license, then that's an extremely strong case for hiring an arranger legally. Green light!

If the arranger uses an agreement where groups promise to get a license before hiring the arranger, *****but the group in fact does not get the compulsory license*****, then the arranger has nonetheless violated copyright. Is the group ALSO liable for having falsely stated that the arranger had the right to make the arrangement thereby luring him into it? Sure. But the issue would then be is the copyright infringement of making an arrangement dependent on the arranger KNOWINGLY violating the copyright? The answer is no. Case law holds that Copyright may be infringed ACCIDENTALLY and it is still copyright infringement.

This is worthy of a separate article, since there are more details to explain that can't be covered in this response. But again, I commend your analytical skills! Great job!

Jonathan

Samantha
1/26/2016 10:27:36 am

Thanks Jonathan! This stuff is really complex... Looking forward very much to reading your article on the legalities of arranging! In the absence of a separate "arranging licence" I guess it is best to buy a mechanical licence and make at least one copy of each arrangement... Could the sheet music be sold along with the recording..? Sorry - can't let it go!

Thanks again!

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Jonathan Minkoff
1/26/2016 12:13:33 pm

Mechanical compulsory license is the way to go if you can't get permission. But sheet music could NOT be sold with the recording without permission.

By the way I can imagine a bizarre scenario where you buy mechanical licenses for OTHERS and sell them the mechanical license and the sheet music simultaneously. That would add labor plus 9.1 cents to your costs. That would also almost certainly result in a court case if widespread, but it might possibly be legal.

More articles needed and I will get to them after SingStrong NY, SingStrong Chicago and SingStrong DC are completed! I hope you are able to make it out to at least one! www.singstrong.org

Jonathan

Reply
Henry
5/9/2020 10:24:36 pm

Hi Jonathan,

This is a terrific resource, thank you for all of your articles and comments. It's the most comprehensive detailed discussion I've seen on these topics.

Let me see if I understand some of these points properly by asking about this bizarre scenario where you can sell and arrangement with a mechanical license. In bizzaro world, the purchaser must represent that they are recording the arrangement which they are purchasing from you. If so, the arrangement is allowed under the mechanical license.

But what about the following scenarios:

1) The mechanical license is for one recording, but they purchaser makes two recordings. The failure to obtain a mechanical license for a second recording falls on the purchaser, not the arranger, since the arrangement was legally obtained for the first recording only, is that correct?

2) Say the purchaser never gets around to making a recording at all. That's still OK, because the arrangement was properly obtained with a mechanical license and there is no time limit where that license to record the arrangement expires (and the purchaser doesn't otherwise do anything like perform the arranged piece instead). That's still OK, is that correct?

3) And finally, the purchaser never intended to make a recording, they always wanted to perform the piece publicly and they do so in a venue that does not have proper performance rights. In that case, it sounds like the arranger has liability, since even though the arranger sold a mechanical license, the purchaser acted in a way to violate the proper "chain of custody" and the arranger could not know this, it was still "accidental" without the knowledge of the arranger and thus the arranger is liable, is that correct?

Thanks again!

Maria
3/5/2016 01:10:53 pm

Hi, My husband had a band of 12 musicians. He wrote the words and music of 90% of his repertoire and made at least 75% of the arrangements. He was the founder and creator of the band (sole owner). He recently passed away and I decided not to continue with the group. Members from the group have decided, without asking for permission, to make new arrangements and keep performing his music. Is this action ilegal?

Reply
Jonathan Minkoff
3/5/2016 07:46:09 pm

Maria,

Firstly, I am very sorry for your loss. Second, you are asking a very specific legal question, and the only way you can get the right answer is to hire your own attorney. He or she will do research and seek many details that I cannot through this website. I am obviously not your attorney. But I will give you an incomplete answer in order that you have some idea what questions to ask an attorney should you choose to follow up.

Assuming that your husband wrote 100% of 90% of the songs, rather than 90% of 100% of the songs, then when your husband passed away, the copyrights to his songs passed to his estate and then whoever inherited them. That is very often a person's spouse, but it is possible that a different arrangement was made, either in the will or in some other legal instrument. Assuming you have inherited his rights (a reasonable assumption but still an assumption that needs to be checked) then you have all the rights that he did as composer while alive, subject to ones he granted to others.

The band may or may not have a written agreement of some type that grants these rights. And that agreement may or may not be cancelable by you or even automatically.

Also, your husband may have been a member of a PRO like ASCAP or BMI. If he was, then this organization manages the rights to perform his songs. It is a revokable right, generally, and that would probably fall to you to choose what to do.

The PRO works with venues to gather payment for songs. The bands rarely pay for such uses in live performance. You could leave the PRO and refuse to allow live performances of songs in which your husband was the sole composer and lyricist, assuming you inherited those rights. Or you could continue to collect payments from the PRO.

On sound recordings, once the song has been published, payment is still due the composer's estate for each and every copy made (9.1 cents/per copy).

If the arrangements are just being used for the live performance or the sound recordings, then it is likely that no separate payment is owed your husband's estate. However, if the arrangements are being sold as sheet music or displayed then you would be owed payments. Also, if the use of the song is in a video, that requires a synch license which your husband's estate can charge any amount for, or simply refuse.

This is really the tip of the iceberg as to what could be going on, as there is no way to give proper legal advice via this exchange, but I hope it gives you a sense of the issues to ask your own attorney about. And again, I wish you the best and offer my sincere condolences for your loss.

Reply
A
3/6/2016 09:58:16 pm

Does the mechanical license allow for sheet music (with our slight arrangement that keeps the melody and character) to be printed for the performers to use in order to make a recording?

Reply
Jonathan Minkoff
3/7/2016 12:30:36 pm

Congress un-wisely left that question un-answered. The copyright act grants the right to prepare an arrangement for the purpose of making a licensed recording. I would argue that if the sheet music is necessary to create the recording, and it's actually used for this purpose and not for other purposes, then such use is sanctioned by the compulsory license even though it isn't mentioned with specificity. Otherwise, the argument would be that only musicians who learn arrangements by ear are permitted to take advantage of the arranging privilege within the compulsory right, and that defies logic and also makes for poor public policy, given that Congress favors literacy among the US population. Hope that helps!

Reply
A
3/9/2016 11:37:37 pm

Thank you! Also, if I arrange a song for a cappella, but keep most of the chords the same and then remove the lyrics entirely, can I use the mechanical license, or would I have to get PTA?

Jonathan Minkoff
3/10/2016 09:22:55 pm

If there are no elements of the original copyrighted lyrics or melody, then merely having the same chord progression is not enough to infringe copyright. In such a case, generally there is no need for a mechanical license and you are free to sell the sheet music. Good luck!

Reply
Andrew
3/29/2016 12:12:54 pm

Excellent article, thank you! I am considering arranging an artist's body of work for the purposes of a short run of performances for which I would charge admission. There would be no recordings, and my work would not be published. The artist performed for a major label, but is no longer affiliated. My venue does not hold the blanket license mentioned in the article. My question:

If I contact the artist directly and create an agreement to use their work for this specific performance, am I still obligated to the publisher in any way?

Reply
Jonathan Minkoff
3/29/2016 01:13:12 pm

Andrew,

The composer holds the power. If any composer or lyricist grants you permission to arrange or perform, then that's all you need.

Jonathan

Reply
Coach Carr
5/23/2016 10:45:31 pm

If our high school has the blanket license mentioned above, is our dance team ok to perform to recorded music at half time shows?
Are we able to edit music to create a fuller show (example: doing a Girl Power show incorporating several different clips of "girl" songs such as American Woman, Run the World, Girls Just Wanna Have Fun, etc)?
I realize this is a bit different than the live music many of your posts discuss but I have found your information so valuable and am hopeful you can point me in the right direction. Thank you in advance!

Reply
Coach Carr
5/23/2016 10:45:42 pm

If our high school has the blanket license mentioned above, is our dance team ok to perform to recorded music at half time shows?
Are we able to edit music to create a fuller show (example: doing a Girl Power show incorporating several different clips of "girl" songs such as American Woman, Run the World, Girls Just Wanna Have Fun, etc)?
I realize this is a bit different than the live music many of your posts discuss but I have found your information so valuable and am hopeful you can point me in the right direction. Thank you in advance!

Reply
Coach Carr
5/23/2016 10:46:04 pm

If our high school has the blanket license mentioned above, is our dance team ok to perform to recorded music at half time shows?
Are we able to edit music to create a fuller show (example: doing a Girl Power show incorporating several different clips of "girl" songs such as American Woman, Run the World, Girls Just Wanna Have Fun, etc)?
I realize this is a bit different than the live music many of your posts discuss but I have found your information so valuable and am hopeful you can point me in the right direction. Thank you in advance!

Reply
Coach Carr
5/23/2016 10:46:14 pm

If our high school has the blanket license mentioned above, is our dance team ok to perform to recorded music at half time shows?
Are we able to edit music to create a fuller show (example: doing a Girl Power show incorporating several different clips of "girl" songs such as American Woman, Run the World, Girls Just Wanna Have Fun, etc)?
I realize this is a bit different than the live music many of your posts discuss but I have found your information so valuable and am hopeful you can point me in the right direction. Thank you in advance!

Reply
Jonathan Minkoff
5/24/2016 01:43:39 pm

Coach,

Your blanket license will usually cover public performance (performed live or played from a recording) of the music included in the license. Making mash-ups would technically require separate permission, not just payment, but I believe that generally most composers/publishers won't care so long as the performance is being paid for. So I would tend to think your risks are low. Good luck!

Jonathan

Reply
Emailed Question
7/11/2016 11:26:16 am

1) How far can you go before you have fundamentally changed the character of a song and it is now a derivative work? (Shortened versions?, added instrumental breaks?, taking Hotel California and giving it a 20's era feel?)

2) What about mashups?

3) Does adding choreography to a song (as in show choir) mean that we need Grand Rights?

Reply
Jonathan Minkoff
7/11/2016 12:03:42 pm

Great Questions!

1) How far can you go before you have fundamentally changed the character of a song and it is now a derivative work? (Shortened versions?, added instrumental breaks?, taking Hotel California and giving it a 20's era feel?)

A: This is rarely litigated. As a general rule, composers are not focused on stylistic re-imaginings so long as they are properly paid for the song's use. There is also strong usage evidence that most stylistic interpretation does not change the character of a work.

2) What about mashups?
A: DANGER! Mash-ups are a problem. The best argument for use makes for the worst mash-up in practice. Namely, two different songs in close succession. The theory there is that there is no requirement of breaks between songs used legitimately. So slamming them together should not be actionable. But when multiple songs are deeply integrated within a single arrangement, (generally the most artistically valid approach to the mash-up), that very likely to be a derivative work requiring permission from at least one author of each song.

That said, such arrangements are ubiquitous in the world of a cappella, both performed and recorded. I know of no issues that have arisen thus far, but as they say, past performance is no guarantee of future results. So this isn't without risk, but so long as all rights are paid for for each individual song used, composers seem to be pleased enough to skip litigation.

3) Does adding choreography to a song (as in show choir) mean that we need Grand Rights?

A: That depends. The closer your "choreography" gets to a staged show, the more you'll need Grand Rights. The more your choreography looks like the mere gesture of a live performer, the less you'll need those rights. It will help if you: 1) don't perform any dialogue; 2) don't get in costume of any kind; 3) don't incorporate plot in any way; 4) don't allow your performance to be similar to a staged dramatic production.

Having said all that, the best possible way forward for schools is to attempt to negotiate and pay for blanket licenses to do all of the above. You have a tax base and thousands of students whose education is greatly enhanced by enjoying this artistic freedom and exploring this medium without either worrying about consequences of illegality or disrespecting copyright in favor of expediency. This is a national issue. It's time for state and district leaders to step up and get these expanded blanket contracts executed. Yes schools will pay artists a bit more, but students will be ethically, artistically and legally in the clear.

In the meanwhile, educators can utilize some of the protections in the TEACH ACT. In face-to-face teaching, *not open to the public* and without admission charges, copyright can be considerably more lenient. The details of what's allowed by the TEACH ACT are beyond the scope of this answer, but worth a read for educators who seek stronger assurances for their immediate needs.

Best of luck to all!

Jonathan

Reply
Brendan Jennings link
7/18/2016 02:19:18 pm

Thank you so much Jonathan!

There is a company called Tresona that is insisting that any show choir arrangement, even of a single song, is a derivative work and must be licensed. The publishers and labels (Hal Leonard, Sony, Universal, etc...) are using them exclusively to offer these licenses and won't talk to schools directly. Many schools, including mine have been using this company and paying an average of $235 per song. In mashups, each song is full price and they use a most favored nations clause so that all songs are paid at the highest price (I paid $1,200 for a 3 minute mashup of 3 songs this year).

They sent lots of threatening communication to a number of schools who had yet to license though them and now are suing the boosters and director of the other high school in our district. The lawsuit cites lots of things including copyright infringement, failure to obtain grand rights and damage to their business (by telling people about mechanical licensing I think).

Many people are confused about the law and scared of getting sued. Many school districts would not take the time and expense of fighting a lawsuit like this.

Brendan Jennings link
7/18/2016 02:19:26 pm

Thank you so much Jonathan!

There is a company called Tresona that is insisting that any show choir arrangement, even of a single song, is a derivative work and must be licensed. The publishers and labels (Hal Leonard, Sony, Universal, etc...) are using them exclusively to offer these licenses and won't talk to schools directly. Many schools, including mine have been using this company and paying an average of $235 per song. In mashups, each song is full price and they use a most favored nations clause so that all songs are paid at the highest price (I paid $1,200 for a 3 minute mashup of 3 songs this year).

They sent lots of threatening communication to a number of schools who had yet to license though them and now are suing the boosters and director of the other high school in our district. The lawsuit cites lots of things including copyright infringement, failure to obtain grand rights and damage to their business (by telling people about mechanical licensing I think).

Many people are confused about the law and scared of getting sued. Many school districts would not take the time and expense of fighting a lawsuit like this.

Jonathan Minkoff
7/19/2016 12:24:04 pm

Brendan,

There are lots of rights at issue here: 1) the right to perform a song 2) the right to arrange a song 3) the right to perform a mash-up 4) the right to arrange a mash-up 5) the right to record any of these in audio only 6) the right to make a video of of any of these 7) the right to perform in the manner of a staged production ... and there may be other rights as well.

In my article above I argue that *IF* the venue already paid for the right to perform a song, that this by necessity includes any arrangement, authorized or not (which doesn't fundamentally change the character of the original).

That doesn't speak to mash-ups, or situations where you are trying to sell sheet music, or make videos or where the school never purchased the appropriate license to perform music in the first place or any number of other uses.

I mention that just to give you a sense that it's not easy for me to tell who is in the right or in the wrong, simply based on your description.

I do think that nearly all schools face the same issues here and that the highest level of state and federal educational officials should be involved in resolving this once and for all. Show choir, marching band, a cappella groups, etc... they are all affected.

Jonathan

Reply
Dan Wolaver
8/7/2016 05:39:51 pm

I've added words to an orchestral piece to make it singable. The venue for the performance has paid for the blanket license that covers the copyrighted music. Is my arrangement of the orchestral piece simply an arrangement, or does adding lyrics make it a different situation?

Reply
Jonathan Minkoff
8/8/2016 09:44:19 am

Dan,

Adding lyrics to a copyrighted orchestral piece makes your creation a derivative work and not simply an arrangement. To be legal, this requires the permission of the composer.

If the orchestral piece was not copyrighted then you would have created your own copyrightable new work and would not need any permissions to do so.

I hope that's helpful!

Jonathan

Reply
Claire
1/12/2019 08:23:24 pm

Wait a minute…I thought that arrangements were a subset of derivative works. That is, playing a flute sonata on violin, or creating a version of a piano piece for brass quintet, constitutes both an arrangement and a derivative work. Is that wrong? If some arrangements are derivative works and some are not, then which are which?

Susan Rogers
8/31/2016 09:31:46 am

Jonathan,

Thank you this for wonderfully thorough article and discussion thread. I want to write an orchestral medley only used for public performance [it will never be recorded, nor sold as sheet music] and the orchestra pays its blanket license agreements and the orchestra reports all repertoire they perform to those licensing organizations. The medley may consist of 4 - 6 songs, but with no lyrical, melodic or chordal modifications to the original song. Some portions of the songs may be longer than others and some transitions will be written as well. Is the medley considered a derivative work? Does the blanket license agreement cover the medley as long as the songs within the medley are reported by the orchestra per their license agreement? Thank you.

Reply
Jonathan Minkoff
9/1/2016 11:21:13 am

Susan,

As stated in a comment above, "In my article above I argue that *IF* the venue already paid for the right to perform a song, that this by necessity includes any arrangement, authorized or not (which doesn't fundamentally change the character of the original)."

Regarding Mash-ups, I wrote in a separate comment above as follows "What about mashups?
A: DANGER! Mash-ups are a problem. The best argument for use makes for the worst mash-up in practice. Namely, two different songs in close succession. The theory there is that there is no requirement of breaks between songs used legitimately. So slamming them together should not be actionable. But when multiple songs are deeply integrated within a single arrangement, (generally the most artistically valid approach to the mash-up), that's very likely to be a derivative work requiring permission from at least one author of each song."

That said, I do not know if any of the composers will care so long as they are being paid for the performances of their works. But if you want to follow the letter of the law, then permission is strongly advised.

I hope that helps! Good luck!

Jonathan

Reply
Reid McLean Wiest
9/14/2016 09:53:01 am

Jonathan,

Thanks for your commitment to providing such helpful information!

What if the band/artist is performing in a venue that doesn't have or isn't likely to have a blanket licence from a PRO? Examples might include:
- busking outside
- flashmob at the mall
- Christmas carolling door-to-door
- banquet halls
- house concerts

Is it the band/artist's responsibility to ask if a venue has the blanket PRO licence before agreeing to take the gig there? Can or should a band/artist get such a blanket licence that would grant permission to perform arranged works at any prospective venue? Do the PROs even issue blanket licences to individual bands/artists?

Reply
Reid McLean Wiest
9/14/2016 09:53:08 am

Jonathan,

Thanks for your commitment to providing such helpful information!

What if the band/artist is performing in a venue that doesn't have or isn't likely to have a blanket licence from a PRO? Examples might include:
- busking outside
- flashmob at the mall
- Christmas carolling door-to-door
- banquet halls
- house concerts

Is it the band/artist's responsibility to ask if a venue has the blanket PRO licence before agreeing to take the gig there? Can or should a band/artist get such a blanket licence that would grant permission to perform arranged works at any prospective venue? Do the PROs even issue blanket licences to individual bands/artists?

Reply
Jonathan Minkoff
9/15/2016 01:27:22 pm

Reid,

You are exactly right! All PUBLIC performances of copyrighted material need permission from the composer and most composers belong to the PROs described above. Artists as well as venues can get licenses. Note that PRIVATE concerts are not public performances and do not require permission or payment. So a house concert with a limited number of invited guests, or a wedding at a banquet hall generally would not require licensing, but performing for the public (free or paid) would.

I hope that helps and thanks for the great question!

Jonathan

Reply
Tom
9/30/2016 07:03:27 pm

Jonathan, I have enjoyed reading your articles and replies over the last couple of hours and have a cross-border question for you. There is a Canadian anthem in the public domain for which SPEBSQSA (BHS) has a copyrighted arrangement; I interpret that the melody and lyrics are public domain and that the melodic arrangement (or more narrowly, the chordal arrangement ) is copyrighted. There are new lyrics copyrighted by Canadian authors who have granted me (chorus) permission to use provided they are included in the playlist of performances for which a playlist is submitted to SOCAN (our PRO) and that they are credited in any publication. I've asked BHS for permission to use its copyrighted arrangement with some changes in the bass line at the beginning and end, a key change in the middle, and the addition of a bridge between keys. They came back with a draft Arrangement Permission to arrange and reprint a limited number of copies for chorus use requiring a notice on the score that does credit the lyricists but not their copyright nor their required notice. My request for a revision to include those so that the lyricists' rights were undiminished was refused and I was advised that a new original melodic arrangement is required for them to be retained. I'm caught between two rights holders.

I know you will decline to comment on Canadian law so feel free to do so as though it is US law that is applicable. We can purchase copies of the original BHS arrangement and are entitled to perform it. Can we substitute in performance the public domain lyrics of that score with any lyrics to which we have rights?

As to a printed score, I follow your explanation of the Compulsory Licence for a recording grants arrangement permission but a wrinkle is that BHS grants its chapters/choruses mechanical rights for songs that it controls. Does that have any impact on your logic?

Reply
Tom
9/30/2016 07:04:21 pm

Jonathan, I have enjoyed reading your articles and replies over the last couple of hours and have a cross-border question for you. There is a Canadian anthem in the public domain for which SPEBSQSA (BHS) has a copyrighted arrangement; I interpret that the melody and lyrics are public domain and that the melodic arrangement (or more narrowly, the chordal arrangement ) is copyrighted. There are new lyrics copyrighted by Canadian authors who have granted me (chorus) permission to use provided they are included in the playlist of performances for which a playlist is submitted to SOCAN (our PRO) and that they are credited in any publication. I've asked BHS for permission to use its copyrighted arrangement with some changes in the bass line at the beginning and end, a key change in the middle, and the addition of a bridge between keys. They came back with a draft Arrangement Permission to arrange and reprint a limited number of copies for chorus use requiring a notice on the score that does credit the lyricists but not their copyright nor their required notice. My request for a revision to include those so that the lyricists' rights were undiminished was refused and I was advised that a new original melodic arrangement is required for them to be retained. I'm caught between two rights holders.

I know you will decline to comment on Canadian law so feel free to do so as though it is US law that is applicable. We can purchase copies of the original BHS arrangement and are entitled to perform it. Can we substitute in performance the public domain lyrics of that score with any lyrics to which we have rights?

As to a printed score, I follow your explanation of the Compulsory Licence for a recording grants arrangement permission but a wrinkle is that BHS grants its chapters/choruses mechanical rights for songs that it controls. Does that have any impact on your logic?

Reply
Tom
9/30/2016 07:31:40 pm

Jonathan, I have enjoyed reading your articles and replies over the last couple of hours and have a cross-border question for you. There is a Canadian anthem in the public domain for which SPEBSQSA (BHS) has a copyrighted arrangement; I interpret that the melody and lyrics are public domain and that the melodic arrangement (or more narrowly, the chordal arrangement ) is copyrighted. There are new lyrics copyrighted by Canadian authors who have granted me (chorus) permission to use provided they are included in the playlist of performances for which a playlist is submitted to SOCAN (our PRO) and that they are credited in any publication. I've asked BHS for permission to use its copyrighted arrangement with some changes in the bass line at the beginning and end, a key change in the middle, and the addition of a bridge between keys. They came back with a draft Arrangement Permission to arrange and reprint a limited number of copies for chorus use requiring a notice on the score that does credit the lyricists but not their copyright nor their required notice. My request for a revision to include those so that the lyricists' rights were undiminished was refused and I was advised that a new original melodic arrangement is required for them to be retained. I'm caught between two rights holders.

I know you will decline to comment on Canadian law so feel free to do so as though it is US law that is applicable. We can purchase copies of the original BHS arrangement and are entitled to perform it. Can we substitute in performance the public domain lyrics of that score with any lyrics to which we have rights?

As to a printed score, I follow your explanation of the Compulsory Licence for a recording grants arrangement permission but a wrinkle is that BHS grants its chapters/choruses mechanical rights for songs that it controls. Does that have any impact on your logic?

Reply
Tom
9/30/2016 08:24:44 pm

Sorry about the repeats but every time I submitted the message a red error message came back saying try again. That was on my iPad.

Reply
Jonathan Minkoff
10/1/2016 03:36:25 pm

Tom,

Thanks for the kind words. As for your situation, that's a fascinating one!

I think you have stumbled on a grey area of law, although I believe that you have the worse of the positions. Normally if you change the lyrics to a song you have altered it and the change requires permission of both the original writer and the new lyricist. But here, the copyright necessarily has a "carve out" for the portions in the public domain (lyrics and melody).The part you are altering cannot be protected in the first place so no transgression there. But, is that a hole in the copyright which can be freely filled, not just taken and used? Probably not. Had you been adding lyrics to an instrumental piece, you surely would have needed permission, despite the original not having lyrical content at all.

So my best guess is that you need permission of both parties here unless you take the position that the BHS does not have a copyright on the portions of the arrangement that you plan to use. (I obviously can't opine about that having never heard it.)

You could think of it like this: lyricist and composer must split fees due for live performance. BHS wants to be the sole composer/lyricist. You want to introduce a new lyricist and hence divide the fee. (Of course there are other issues besides money, like whether artists may be forced to "work together" via mash-up, but that's more complex.)

As for mechanicals, they are compulsory. BHS or any composer (in the US) could not deny permission to record their song if payment was properly made.

Caught between two rights holders is indeed your situation. I wish I had better news! I hope that's helpful to you. Good luck!

-Jonathan

Reply
Tom
10/2/2016 08:47:50 am

Thanks for your analysis and explanation, Jonathan. What a tortuous web copyright has woven! The frustrating thing, too, is that if we buy copies of the BHS arrangement at $1 apiece per chorister, we are cleared for performance and for recording and for mechanicals so there is no additional monetary incentive for it to preclude the new lyricists from deriving some tiny income.

It may be that what I am asking just does not fit into its institutional practices. I'm no arranger so coming up with a new chordal arrangement is not a likely escape from the web!

Darius Wilder
10/2/2016 10:05:22 pm

I'm planning on performing cover songs in live venues in the near future. Something to help build my fan base and career. And while I do plan on performing the songs as close as the songwriters crafted them, many of the songs would have to be transposed to my keys.

Exactly how would I be able to sing live covers without getting into trouble with the PROs, the songwriters and publishers?

Reply
Darius Wilder
10/2/2016 10:05:41 pm

I'm planning on performing cover songs in live venues in the near future. Something to help build my fan base and career. And while I do plan on performing the songs as close as the songwriters crafted them, many of the songs would have to be transposed to my keys.

Exactly how would I be able to sing live covers without getting into trouble with the PROs, the songwriters and publishers?

Reply
Chris
10/27/2016 04:11:06 pm

Your articles and comments are very well written and I appreciate your willingness to educate us on these topics. I have questions regarding derivative works. Lets say you are a marching band director of a high school, and paid for permission to arrange a marching band show using multiple songs not in the public domain. The license for a custom arrangement is cleared and you hire an arranger as a "work for hire" and the marching band performs the show.
1) Who owns the music to the newly arranged show? Does the arranger or school band that paid for the arrangement have any ownership?
2) If the band was granted permission and they paid to make a custom arrangement of the song, does this also grant permission to record and distribute?
3) If the school wants to make a recorded CD of the show to distribute or to sell as a fundraiser, would they need permission from all of the artists whose songs were used in the derivative work? Does the arranger of the music have any say in granting permission to record a CD? Would paying for compulsory mechanical licenses work because the songs used in the arrangement have been published and sold before?
4) If you must go to the original composers to ask/pay for permission to sell the newly written derivative work, is there a "standard fee" or rate (like mechanical licensing) that they typically charge? What if you don't know how many CDs / digital recordings you would sell?
5) Can someone not affiliated to the school request licenses to record and distribute on the schools behalf?

I apologize for the wall of questions. Thank you very much in advance.

-Chris

Reply
Jonathan Minkoff link
10/28/2016 09:44:52 am

Ok! Whew! Here we go!
1) That depends on A) the terms of the written license under which arranging permission was given and THEN B) the terms under which you hired the Arranger. If you, the paying band, wanted to own the arrangement, you would need BOTH A and B to allow for that.

2) No. To record and distribute a song, you must either have an agreement with the composer or you must pay the compulsory license fee for each copy you make. (Read: http://www.acappella101.com/home/licensing-and-distribution ) The twist here is whether the arrangement is now a new second copyrighted work and that depends on the terms of 1 A, above. This creates the issue of the first publication, which the author controls. But after the first publication, in either case a compulsory license is all that's required.
3) They need to PAY about 9.1 cents for each copy of each song they use. See the licensing article mentioned in 2. The arranger's "say" is dependent on 1 A and 1 B, above. Paying the mechanicals "works" IF the arranger does not have the composer's permission to hold a copyright in the new arrangement. Whether s/he does should be spelled out in 1 A.
4) Once the work has been published you do not need permission, just payment. You pay for every copy MADE. It does not matter whether you sell them or not.
5) Yes, with the School's permission.

That was just a general discussion of how the law might work. As always, this site's legal disclaimers apply. I am *not* your attorney. If I were I would do all kinds of research into your situation which is outside the scope of this website. And that research might lead to completely different conclusions. If the outcome really matters, you have to hire your own attorney and when you do, feel free to use this post to help guide your conversation.

Good luck!

-Jonathan

Reply
Chris
1/24/2017 04:18:00 pm

Hey Jonathan,

I had more questions regarding licensing and I thought I'd come back to your articles to see if I could find some answers. I can't seem to find an answer so hopefully you can help me out directly!

How are websites and other apps like itunes able to give out previews of songs? If mechanical licenses were obtained to distribute cover songs... is there some other license needed to be able to give out a preview of it? A lot of sites seem to have a 15-30 second clip of the song you are wanting to purchase. Sites like JWpepper allow you to listen to the sheet music before you buy it. If I wanted to put previews up of CDs I was selling (that I was granted mechanical licenses for...) would I have any issue putting a 30 second clip up on a my own site?

Looking forward to your reply.

-Chris

Jonathan Minkoff
5/22/2017 12:09:02 pm

Chris,

You asked "How are websites and other apps like itunes able to give out previews of songs?"

Itunes has negotiated permission for most of what they do.

You asked roughly, "If mechanical licenses were obtained to distribute cover songs... is there some other license needed to be able to give out a preview ... 15-30 second clip of the song?"

Technically, streaming an entire song requires a separate license. Those licenses are complex and beyond the scope of this answer.

But how much can be streamed without permission? There is no clear answer there. What occurs with commercial regularity is not always "safe" for you to do as well, in part because some large entities have permission or act under the protection of the digital millennium safe harbor. Neither situation is likely to apply to you, based on your question.

But a rough rule is that the shorter the snippet, the less objectionable the use. That's a hedge, not a guarantee.

I hope that helps!

Jonathan

Michael Pint
7/24/2019 11:18:00 pm

First off, this is the best explanation of arrangement legality on the web, amazing job Johnathan. Quick question, what if I arrange a song under a compulsory license, record it, and it happens to be performed at a later date?

Also, does a compulsory license cover mashups/medleys?

Reply
Jonathan Minkoff
7/25/2019 12:39:01 am

Thanks for the kind words!

Now to your question: "what if I arrange a song under a compulsory license, record it, and it happens to be performed at a later date?"

It sounds like you want to know whether the arrangement you made in your licensed sound recording can be used by either yourself or others in a live performance. That's a hot topic right now!

I argue that IF the live performance is itself licensed (typically by the venue through a blanket license with ASCAP, BMI, SONY etc.), then that performance license IMPLIES a license to arrange for the purpose of the live performance. Otherwise, what good would the performance license be? Every performance contains some arrangement and that arrangement is almost universally a partially new one - altered in live performance due to the style, needs and skills of the performance ensemble.

AND if this is correct, you could use any recorded arrangement which was not subject to a separate arrangement copyright (so nearly all of them).

But anyone could use your recorded arrangement as well!

Right now, that's pretty universal practice. But there are some entities out there trying to collect arrangement license fees in these situations. Will common sense prevail, or will every public performance license be rendered useless without a second arranging license? Hard to know, but let's hope it's the former. It's the only interpretation of the law that makes sense. But then again, a well-funded threat of litigation can often create unexpected outcomes. We'll keep our eyes peeled for developments on this front.

Good luck!

Reply



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Nothing on this site, whether an article or a comment, or otherwise, is legal or tax advice. It's merely a general discussion of the law. If you have a specific question or situation requiring legal or tax counsel, you need to speak to a specific lawyer, personally, who will ask you specific questions about your specific situation which will allow him or her to do specific research in order to give you specific advice.