The Legality of Arranging

2/2/2012

The Legality of Arranging
By Jonathan Minkoff ©2009

WHERE DOES THE RIGHT TO MAKE MUSICAL ARRANGEMENTS COME FROM?
The constitution of the United States gives

Congress the power and responsibility to encourage the arts. Title 17 of the United States Code is the law created by Congress pursuant to this charge which grants artists protection for their original works, including musical arrangements.

Copyright protection in original musical works, including any accompanying words or sound recordings is provided by section 102 of this law. Section 103 makes clear that the protection afforded these original works also extends to derivative works. Artists' exclusive rights are described in section 106 and they include the exclusive rights to "prepare derivative works based upon the copyrighted work".

What's a derivative work? Section 101 defines a “derivative work” as a work based upon one or more preexisting works, such as [tah dah] ... a musical arrangement. And that is where babies come from.

WHO CAN MAKE A MUSICAL ARRANGEMENT?
As we can see from the above language, the default rule is that ONLY the composer of a song can prepare a musical arrangement of the song. But thankfully, there are exceptions.

WHEN MAY SOMEONE OTHER THAN THE COMPOSER PREPARE AN ARRANGEMENT?
Arrangements made by someone other than the composer are LEGAL when:

the song being arranged is in public domain; OR
the arranger has the explicit permission of any one of the song's composers/publishers to make the arrangement; OR
the song arrangement is created specifically to be recorded under a compulsory license, AND the arrangement IS recorded, AND proper royalties are actually paid in accordance with section 115.

The statutory language of section 115 says "A compulsory license [to make a sound recording] includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work ..., except with the express consent of the copyright owner."

The law creates a very interesting outcome: the arranger may arrange without the permission of the author in this limited situation, but the arranger does not "own" a copyright in this legally made arrangement without the permission of the author!

ARE THERE OTHER TIMES WHEN SOMEONE OTHER THAN THE COMPOSER MAY PREPARE AN ARRANGEMENT?
Arrangements may (possibly) be legal when the arrangements are created by or for a group publicly performing where the group or owner of the performance space has paid for the rights to publicly perform the song. The theory here is that the payment for the right to publicly perform may be viewed as necessarily including the right to make an arrangement for that purpose. Every performance incorporates some arrangement. The "right" to perform a song would be of little value without the ability to express that song in an arrangement.

Parody. If the song you are arranging is being parodied by your arrangement, you probably have the right to do this without the permission of the composer. Note that this protection may rely on the subject of the parody being about the song and not about some other topic. Also, you are limited to using only the material of the original song necessary to "make the point". If this seems a pretty vague guideline, it's because it is.

WHAT ABOUT ACADEMIC ARRANGING?
Arranging for academic purposes is very common, but there is no statutory language that I can find which would allow an entire song to be arranged without permission. The exception, which falls under the Doctrine of Fair Use (read about Fair Use here) would be when the arrangement uses just part of a song for scholastic analysis.

An example of such legal arranging might be arranging just one verse and the chorus of the Beatles tune, "Hard Days Night" in several contrasting styles in order to demonstrate the variations on the use of dissonance in different genres. Another example of what could also be allowed would be playing the entire original Beatles track if the source was legal (say a store bought CD).

An example of something not allowed might be playing a stolen MP3 of the Beatles original for the class and having everyone go make their own arrangements, turn them in and then give copies of the highest graded arrangement to the entire class to take home and study.

Yes, that all seems like it should be legal, but it's not. "Who's being hurt? No one!" Yeah, sorry. Can't do it. Read on.

WHAT ABOUT ALL THOSE ARRANGERS OFFERING ARRANGING SERVICES?
There are many arranging services and they each have their own agreements between composers, publishers and groups, so no blanket statements can be made about all of them. But, selling arrangements of non-public domain songs without the publisher's or composers' permission where the arranger has no knowledge as to what the arrangements will be used for appears to be in direct violation of the copyright act.

WHO'S LIABLE?
The arranger is liable for violating the composer's exclusive right to "prepare derivative works". The preparation of the arrangement is the infringing act. It does NOT NOT NOT (can't say that enough) need to be done for profit. The group may be viewed as having helped prepare the work, making them co-infringers, or having paid for or encouraged the arrangement, making them guilty of a kind of copyright "aiding and abetting" -contributory infringement.

JUST HOW LIABLE IS LIABLE ANYWAY?
Courts can issue an injunction mandating the arranger stop arranging in infringing ways. All the arrangement copies can be impounded and destroyed. That's just a fun little warm-up.

The arranger is liable to pay the composer, the composer's choice of EITHER:
1) the copyright owner's actual damages and any additional profits of the infringer; or
2) statutory damages.

And the court, in its discretion, may also allow the recovery of full costs and attorney's fees to the prevailing party. If you've ever seen how high attorneys' fees and court costs get, you'll understand that this is not an insignificant deterrent.

HOW MUCH ARE THOSE STATUTORY DAMAGES?
That depends on just how "bad" the infringement was. Badness is not a legal term. But as you may have guessed, it relates to the common sense ideas of how much infringing you did and your state of mind while you did it. The court does note the difference between accidentally pressing "send" on one copy of one arrangement and deliberately charging fees for an entire stolen vault of arrangements. Specifically, here are the damage ranges:

1) You had no idea you were infringing, but you can't prove your good faith ignorance: not less than $750 or more than $30,000 per work, per infringement, as the court considers just.
2) You PROVE that you reasonably had no idea you were infringing: not less than $200 or more than $30,000 per work, per infringement, as the court considers just.
3) They prove you willfully infringed: not less than $750 or more than $150,000 per work, per infringement, as the court considers just.

WHAT ABOUT CRIMINAL PUNISHMENT?
Many people are very surprised to learn that there are criminal penalties to infringement. Surprise!

If you willfully infringe copyright, either...
1) for purposes of commercial advantage or private financial gain -OR-
2) via reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords [CDs, DVDs, etc] of 1 or more copyrighted works, which have a total retail value of more than $1,000,

then §2319 of title 18, United States Code says here's the punishment:

(b) Any person who commits an offense [as described above]...
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
(c) Any person who commits an offense under section 506 (a)(2) of title 17, United States Code--
(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;
(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.

HOW LONG DO THEY HAVE TO FILE SUIT AGAINST AN ARRANGER?
Criminal: The state has 5 years from the infringement to prosecute the arranger.
Civil: The composer/publisher has 3 years from the infringement to sue the arranger.

IS THE GOVERNMENT TRYING TO ENFORCE THESE LAWS? ARE COMPOSERS? PUBLISHERS?
I don't know the statistics regarding enforcement. But I'd guess that there's a significant increase in either enforcement or media coverage of enforcement. More composers know their rights. More state actors are charged with cyber investigations.

SHOULD I MOVE TO CHINA?
That depends. You'll really have to decide for yourself.

CONCLUSION
Remember when the world was all dial up? It seems impossible to remember those days when every cafe is wi-fi-ed, and every phone has a PDA with Google as a home page. I recognize that the previous sentence will be impossibly outdated, probably by the time this article is submitted, but its premise will not: Today's efficient searching technology becomes a cornerstone for tomorrow's efficient legal enforcement.

Well-financed media conglomerates seem to find it well-worth their time and money to pursue even "small fish" as an example to other "small fish". Being small, being ignorant of the law, and being unprofitable -whether by accident or design- carry little weight in court. Penning illegal musical arrangements in the privacy of one's dorm room may forever fly under the radar. Let's hope so. But for those whose arrangement wares are reachable via the net, the danger is growing.

The best answer, as I've proposed in the past, isn't a change in the behavior of all these arrangers. It's a change in the law. It's time for a compulsory license for musical arrangements. Composers get revenue, arrangers and artists get peace of mind and everybody wins.

Here's an important legal disclaimer: Nothing in this article is legal advice. It's merely a general discussion of the law. 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.

226 Comments

sam

10/1/2012 07:41:50 pm

I want to know that is it legal that I arrange a singer's song for piano solo and I sell it's sheet music without getting permission from the singer or composer?

Jonathan Minkoff link

10/2/2012 05:34:30 am

Sam,

In the US, if a song is *not* in the public domain, then you need the permission of at least one composer to sell your arrangement.

The only exception is if you pay the compulsory license fees and you only make your own arrangement for purposes of making the recording. This still won't let you sell sheet music without permission, but at least you'll be able to legally record your arrangement.

I hope that helps!

For other questions, I think the three articles on arranging hosted here on www.acappella101.com will have the answers!

sam

10/2/2012 05:38:51 pm

so,how can I get permission from the composer?the permission must be written?

Robert Tellefsen

2/20/2017 04:42:55 pm

I have a question some times I take a few songs and make a medaly when I play out I'm not going to sell anything it's a live performance or one shot on a radio station am I or the place I am playing liable thanks

Jonathan Minkoff link

10/3/2012 03:46:26 am

Sam,

You can write to the publisher who represents any of the composers. That information is readily available through google or ASCAP, BMI or SESAC. But remember, they do not have to say yes. And no answer is a no. The permission does not have to be in writing, but I very, very strongly recommend that it is in writing.

Good luck!

Amy

12/4/2012 04:39:05 am

Just to clarify, if a song is "Public Domain," I am able to arrange it and SELL the sheet music?

Jonathan Minkoff

12/4/2012 04:50:33 am

That is correct! You can arrange public domain songs and sell them for any price you want, without payment to anyone else. Good deal huh?

Steph Baker link

2/3/2015 10:09:34 pm

So what are "public domain" songs ?? I'd really like to sell my arrangements online.

Char

1/9/2013 03:53:48 am

Great info!!
I am a voice teacher. I prepare anywhere from 16-24 bars of published music and arrange it for my students to use at their auditions. I have about 25 pieces (some in public domain, some are not) which I have "cut and pasted" by hand for the accompanist to play. I would like to publish my own book of these pieces. Am I able to do this, or am I actually infringing copyright with "my" extracted pieces?

Jonathan Minkoff link

1/10/2013 12:49:36 am

Hello Ms. Voice Teacher;

The public domain materials are yours to do with as you like. As for the material that's still under copyright, the real question you are asking is this: "Does Fair Use allow me to use 16 bars of a copyrighted work without payment or permission?" And for the answer, I suggest this article: http://www.acappella101.com/1/post/2012/02/fair-use-using-others-works-without-permission-or-payment.html

Brad

2/24/2013 07:33:46 am

So, if the arrangement was done more than 3 years ago, then the infringer is "safe" from civil charges?

Jonathan Minkoff link

2/24/2013 02:06:10 pm

Brad, that appears to be the state of the copyright law. However, a clever attorney may be able to get around that limitation in any number of ways that are just too complex to get into in a forum like this. So "safe" might be an overstatement.

Anne LaFaye link

9/12/2018 07:34:49 pm

Brad,
The three year time frame mentioned in the way that you and Brad have characterized it is not correct and does not apply in this manner. You have to wait 70 years after the death of the composer in most cases now in the US before a piece can be considered public domain.

Most infringement actions must be brought within three years of the infringement act -- meaning that the copyright holder has three years from the time that you commit an act of infringement to sue on that act. (There are instances where this timeframe is extended, and instances where, as in overt acts of disclaiming of ownership, the timeframe is more fixed.) But, in many other instances each infringing sale may be considered an independent act of infringement that is open to suit against you by the copyright holder.

Jonathan Minkoff

9/13/2018 10:58:29 am

Responding to Anne LaFaye who wrote:

"Brad,
The three year time frame mentioned in the way that you and Brad have characterized it is not correct and does not apply in this manner. You have to wait 70 years after the death of the composer in most cases now in the US before a piece can be considered public domain."

That is correct! However, I interpreted Brad's question as asking about whether a past act still had future civil consequences after 3 years. Sorry if I wasn't clear in stating that assumption..

"Most infringement actions must be brought within three years of the infringement act -- meaning that the copyright holder has three years from the time that you commit an act of infringement to sue on that act. (There are instances where this timeframe is extended, and instances where, as in overt acts of disclaiming of ownership, the timeframe is more fixed.) But, in many other instances each infringing sale may be considered an independent act of infringement that is open to suit against you by the copyright holder."

That's right again! And hopefully another way to express the same meaning as the statement above. Again, thanks so much for the educated comments on this page, Anne. You have a strong background in copyright and we really appreciate you helping out the readers here!

Curious Band Arranger for Profit

7/31/2013 12:44:00 pm

If I join ASCAP, or any other (PRO):Performing Rights Organization,
Do I need to get permission to arrange, and sell my arrangements for profit via the internet on my own website? If so, how, and what are the fees?
Is there a yearly flat rate to pay the artist and publishers?
Or is it based upon how much money I make on their songs?
I want to do this the right way. Because I believe producers and the artist should receive their just due, and I don't want to be sued or go to jail.- Curious Band Arranger for Profit

Bruce Ewen

2/16/2016 10:01:31 am

Jonathan Minkoff link

8/1/2013 02:47:10 am

Hello Curious Band Arranger for Profit!

You asked "If I join a PRO, do I need to get permission to arrange, and sell my arrangements for profit via the internet on my own website?" The answer to that lies in the name PERFORMING rights. These societies license the right to PERFORM. What you want is the right to ARRANGE. So everything in the section marked "WHEN MAY SOMEONE OTHER THAN THE COMPOSER PREPARE AN ARRANGEMENT?" still holds true. I hope that's helpful!

Emily

8/9/2013 08:18:17 pm

If I have a performance of my choir singing my a capella arrangement of "Stand by Me" -- which, from what I can gather, Sony owns the rights to -- can I use video footage of this performance to fundraise for the choir? Would that be taken as "for-profit"? Thank you!

Jonathan Minkoff link

8/10/2013 07:17:48 am

Emily, the question you asked is so much more complicated than you might think! I think what you'd like to know is not whether your use is for-profit or not-for-profit, but whether you are permitted to make and then use the video. I recommend that you read these two articles thoroughly: http://www.acappella101.com/1/post/2012/02/fair-use-using-others-works-without-permission-or-payment.html and http://www.acappella101.com/1/post/2011/08/giving-music-away-legally.html

I hope that helps!

Jonathan

Brian

8/14/2013 10:06:48 am

Do I need permission to write an arrangement of a pop tune for my concert band and then perform it in concert?

Thanks
Brian

Jonathan Minkoff link

8/15/2013 05:23:14 am

Brian, you asked whether you need permission to write an arrangement of a pop tune for your concert band and then perform it in concert. The answer is in the article above:

"Arrangements may (possibly) be legal when the arrangements are created by or for a group publicly performing where the group or owner of the performance space has paid for the rights to publicly perform the song. The theory here is that the payment for the right to publicly perform may be viewed as necessarily including the right to make an arrangement for that purpose. Every performance incorporates some arrangement. The "right" to perform a song would be of little value without the ability to express that song in an arrangement."

I hope that's helpful!

Ashlee Errthum

8/21/2013 10:57:44 am

I'm a junior in high school aspiring to be a composer. I have recently started composing my own songs but want to do an arrangement of "I Won't Give Up" by Jason Mraz to make it a duet, so I can perform it with my boyfriend this february at the school talent show. It wouldn't be for profit and would never be distributed for profit or otherwise, except my boyfriend so he can learn his part and guitar. Would I need permission to do this? Is it legal to make it without express permission?

Jonathan Minkoff link

8/26/2013 02:08:18 am

Ashlee,

Most schools pay for the blanket right to perform music. I argue that this conveys the right to arrange in just the limited manner you describe above: not for profit, not distributed, etc. If that's accurate, I'd say go ahead and have a great performance!

Daniel

8/31/2013 10:36:32 am

As you know, playing video game music on the piano is popular nowadays.

Let's say I wanted to arrange a song from Super Mario Bros for piano solo, do I need to get permission of any sort if I wanted to sell the sheet music and recording of my own arrangement of the song?

They're songs I heard from the game and combine that with my passion for the piano... Who wouldn't want to do their own arrangement of those songs?

Jarrod Radnich does this himself. He's arranged Pirates of the Carribean, Jurassic Park, Hedwig's theme from Harry Potter and Lord of the Rings. All of it is arranged for piano solo even though these works were never written for piano solo to begin with. He's made millions of dollars doing this. If you never heard of Jarrod Radnich, look him up on Google.

Jonathan Minkoff link

9/2/2013 06:54:35 am

Video game music is very popular these days. You will need permission to sell (or even give away) any arrangements of video game music, regardless of which instrument you arrange for. Try contacting the publisher of the music. Good luck!

Anne LaFaye link

6/5/2017 10:55:48 am

Jarrod Radnich is a music professional and has a business management and legal team that keep his work in compliance with the law. Jarrod Radnich receives special permission for his arrangements of non-public domain works. He was the creator of and virtual performer at Disneyland's "Dream Home of the Future" exhibit that opened in 2008 and ran till 2014 featuring him performing his Pirates of the Caribbean Medley (an arrangement from the popular movie music). He is a party to contracts that result in the original copyright holders and/or music publishers receiving a payment for each arrangement sold. (Visit www.musicnotes.com to see these arrangements with copyright information included.) He also obtains mechanical licensing agreements for recordings. He is represented by ASCAP as his PRO.

Sean

9/2/2013 05:52:40 am

Can I arrange a pop tune that is already arranged by someone? The song is Wake Up Everybody arranged by Jay Althouse. I want to arrange it for a recorder group.

Jonathan Minkoff link

9/2/2013 07:01:38 am

Sean, you can arrange a pop tune for the purpose of making a licensed recording. You may also be permitted to arrange the tune for the purpose of performing the song live, if the venue you are performing in (or you) have paid for the right to perform the song. You can also arrange the song if you have the permission of any of the composers, lyricists or publishers. The fact that you are arranging the song for recorders should not matter. Good luck!

Elizabeth

9/20/2013 01:55:49 pm

A piece of copyrighted orchestral music is arranged for solo piano. The melody is identical to the original melody, it's even in the same key. You have paid for a compulsory license (same as mechanical license, right?). You record your arrangement. Can you also legally sell that recording? This is assuming that you have paid to distribute a certain number of recorded CDs.
By the way, thank you for your post. Much more informative than a lot of the explanations I've looked at.

Jonathan Minkoff link

9/20/2013 10:05:15 pm

Elizabeth,

Yes! If you have paid for a compulsory license, that grants you the right to arrange the underlying composition for the purpose of making *and selling or giving away* the recording. You cannot sell the sheet music or post the arrangement on line, but you can absolutely sell your own licensed recording. That is exactly what you paid for!

Elizabeth

9/21/2013 03:57:46 am

Since you mentioned posting online...I have looked into the possibility of getting the licenses required to post arrangements on YouTube. The cost is exorbitant, the licenses last for a limited time, you don't get any money from advertising, and there's a good chance you'll put money out just to discover that you can't post that arrangement. So, how are The Piano Guys doing what they do? They're on a record label now so I'm assuming they're legitimate, but it seems like they can't possibly be going through the process I have been looking at... Thoughts?

Jonathan Minkoff link

9/22/2013 10:43:43 pm

Posting on youtube is usually "successfully" done by people who make their own video of their own sound recording of someone else's song. If the owners complain, youtube takes it down. But often the owners are willing to monetize your video with a cut of youtube's advertising.

You get to make a video without paying for a sync license which allows you to get publicity off some else's song. The composers get money from ads, and youtube gets money from ads as well.

If you want to keep the income, then you need either original material or public domain material you've arranged or a negotiated sync license (which you discovered can be both expensive and limited).

As for specific comparisons like The Piano Guys, there are several possibilities. 1) They aren't keeping the money from ads, just enjoying the publicity; 2) The record company negotiated licenses for them.

You may find this article on Giving Away Music Legally useful: http://www.acappella101.com/1/post/2011/08/giving-music-away-legally.html

Elizabeth

9/23/2013 01:49:56 am

Thank you for your responses. I have learned a lot from your articles. Very helpful!

Daniel

10/9/2013 12:11:43 pm

I am a freshman in High School and I have recently started working on a marching band arrangement of the Raiders' March from Indiana Jones. How can I get permission to do this legally

Travis

10/23/2013 09:39:44 am

Hello, there was a mashup of the coldplay songs, The Scientist, viva la vida, and fix you. I was curious if my schools acapella choir could preform this at concerts

Jonathan Minkoff link

10/24/2013 12:44:09 am

Daniel,

To make a "fully" legal arrangement of the Raiders March I suggest you contact Warner Tamerlane Publishing Corp and ask for permission. Otherwise I refer you to the other articles I've written about arranging, for other approaches.

Jonathan

Jonathan Minkoff link

10/24/2013 12:49:11 am

Travis,

Technically, mash-ups are actually arrangements and to be "fully" legal you'd need to get permission to make the mash-up from at least one composer or publisher of each of the songs being used. In reality, this almost never happens. For practical purposes, most composers seem to treat the mash-up as individual songs. So if you can legally perform each of the songs individually -say, because you've paid for the blanket license to publicly perform them- it's unlikely that you'll have any problems due to the mash-up format.

Jonathan

Curious Band Teacher for No Profit

10/26/2013 02:49:21 am

We have purchased a thousand hymn books at the small Christian school at which I teach. Also have the CCLI for powerpoint display. Can I arrange and transpose these for my young band students to perform, not perform, peak interest, compete in festivals, and enjoy?

Jonathan Minkoff link

10/28/2013 07:47:30 am

Arranging, transposing and selling hymns without paying anything to anyone is fully legal, if the hymns' melody and lyrics are in the public domain.

Anything published before 1923 is in the public domain. For everything else, refer to this chart.

http://webshare.northseattle.edu/tlc/copyright/copyrightchart.shtm

It's not always easy to know whether materials published after 1923 are in the public domain or not, and for this reason attorneys are often hired to get to the bottom of things. But the chart will help and thankfully there are more hymns from before 1923 than you could probably arrange in a lifetime! Best of luck!

Derek McIntire

11/26/2013 01:55:22 pm

I have two questions. My wife writes songs and recently a friend of ours asked to arrange one of her songs for a choir and orchestra. I understand we can charge an arranger fee but who owns the arrangement or is that up to how we right up the arranger agreement? Secondly if they record that arrangement on a CD who gets the royalties - the arranger or the composer or both? Thanks!

Jonathan Minkoff link

11/29/2013 11:31:33 am

Derek,

A licensed arrangement is one in which the composer gives the arranger permission to make, sell and distribute a written arrangement of the composition. You may write up any monetary agreement you wish in this regard. The composer could be paid a lump fee or the parties could split future sales, or whatever you like. Just put it in a signed writing! You should also indicate who owns the copyright in the arrangement. Perhaps both parties. Perhaps just one.

Typically, the composer gets 100% of the compulsory license fees for a recording of the song, or a live performance of the song (see ASCAP, BMI, SONY, SESAC). The arranger's right to payment usually comes from the selling of sheet music which the group uses to create its recording or performance.

To avoid confusion, it's best to write down both parties' expectations in your contract.

My tip: remember that keeping track of what others do can be more effort than it's worth. There's a value in having a clean contract that doesn't require complicated policing, especially when there isn't a lot of money at stake. An example might be: Arranger pays composer X dollars for the right to sell or give away unlimited copies of the written arrangement for a period of Y years in Z geographical locations. Once the composer gets paid, she doesn't need to watch over the arranger to make sure the split is fair or the payments are made on time or that each copy is accounted for. And the arranger is motivated to try and make profit by selling as many copies as possible during the term.

Obviously agreements are best handled by an attorney who will cover many, many additional areas.

Good luck!

Serena Lee

12/7/2013 05:21:07 am

Hello,
Thank you for this article. I am still having trouble on what I should do in my situation though.
For my senior project at school, I wanted to arrange a mashup from 3 different artists. I may or may not have my Jazz Choir at my school record it, and I do not know whether my school will want to sell the recording. Should I ask the artists/publishers' permissions to arrange the song anyway in advance or after we decide to sell my arrangement or any recording?
Thank you so much!

Jonathan Minkoff link

12/8/2013 12:05:00 pm

Serena,

You are very welcome. Thank you for the kind words! I can tell you are just trying to do the right thing here, and I can state that typically, people just go ahead and make these mash-up arrangements and then, maybe worry about rights afterwards, if ever.

Sadly, I cannot tell you that this is the legal approach. Like much of what's going on copyright, the practice and the law are out of sync, to say the least.

If you want to be sure that what you are doing is legal, you would need the permission of the composers or their publishers of all three songs to make a mash-up.

The next best thing, and probably much easier, would be making a licensed recording (it can be just one copy) and paying the license fee of about one dime to each of them, and then making your arrangement pursuant to that. (You should definitely read this article for how to do this: http://www.acappella101.com/1/post/2012/02/licensing-and-distribution.html )

Following that, you get into grayer areas of the law.

I hope that's helpful. Good luck!

Michael

1/15/2014 02:26:42 pm

Hello,
I think I have my answer, but I need to be certain. I am a high school student and I am currently making an arrangement of the tune Strasbourg St. Denis by Roy Hargrove for my school's jazz band. Now I have heard many many MANY different arrangements of this song from both professionals and amateur musicians so I'm assuming I'm safe to make one too. If I do, can I perform it for a school concert? I'm not planning on selling it, but I am debating on whether or not to record it. Your thoughts and feedback? Thanks!

Jonathan Minkoff link

1/15/2014 10:22:55 pm

Michael, let's say you lived near a highway. As you drive on that highway, you see that people regularly drive about 10mph above the posted limit. Could you say that you are "safe" to drive above the speed limit, even though, technically, you're still breaking the law and could be ticketed? The situation is similar with arrangements of copyrighted songs. You have to separate the issue of legality from probability of enforcement.

The law states that for a copyrighted work that is not in the public domain, ONLY THE COMPOSER may prepare an arrangement, except in the case of a recording made pursuant to a compulsory license.

I know that you are more interested in making the arrangement than making a recording. But if you make one copy of a licensed recording, which would cost you about a dime (plus the postage to send it to the composer/publisher), then you would also have the right to make an arrangement, which is what you really wanted.

I've written a lot more on this subject, and it's all available on this site. But that's the general gist of "how to drive the speed limit". If you feel like going over the limit, then you might just make the arrangement and not tell, ask or pay anyone anything. Now, the issue is about being caught (enforcement), and the morality of using someone else's work without payment or permission. And for now, I leave that to your own sense of right and wrong. I'll add two things: 1) like that highway, most people just make the arrangement and 2) Given how tough it is for artists and composers, I'd like to see more people do the right thing. A little bit from a lot of people goes a long way.

I hope that's helpful!

Matthew

1/19/2014 01:15:02 pm

I'm a high school student. I just wrote an arrangement of a copywrited piece of music just for the fun of it. I don't intend to sell it, or record it, or preform it. Should I still be scared that someone's going to try to sue my pants off if they find out about my arrangement?

Jonathan Minkoff link

1/20/2014 01:54:44 am

Matthew,

If your real question is, "Is making an arrangement of a copyrighted work legal, so long as I do not sell, copy, gift, disseminate, record or perform it?" then the answer, surprisingly, is "No. It is not legal. Even "preparing" an arrangement is a violation of the copyright act." That may seem unfair, but it's the letter of the law. If, on the other hand, your question is whether you should be scared you'll be sued for merely making an arrangement for your own enjoyment, then I think the answer is no. But you'd need to be careful: making an arrangement and offering it online for free could land you in hot water. Despite what the media reports, people, and especially struggling musicians, don't like to sue anyone, much less their fans. It's often as scary and expensive to sue as it is to be sued.

Vera

2/17/2014 10:18:47 pm

Hi, I am a simple amateur and I have written several simple children's songs with the lyrics. When I say "written," it means the melody and the words only (no chords, no harmony, no multiple instruments).

I would like to have a musician (probably a music student) arrange these songs - that is, put in chords, possibly harmony, and a few instruments so that I can sell them online or in multimedia products. Any recommendation on what kinds of remuneration or royalties such an arranger is entitled to? Is there any standard practice among musicians?

From your article, what I understand is that if I register my simple song (melody +words), and someone wants to add chords and more to it, that is considered an arrangement, and they would need my permission, right?

Jonathan Minkoff link

2/18/2014 12:32:36 am

Vera,

Standard practice is for you to pay the arranger a flat fee for the completed arrangement and all rights to it. That is true the if arrangement is written, or written and recorded, or just recorded. Costs range widely between approximately $50 per written arrangement to about $1,000 or more per arrangement, especially if the arrangements are very complex and recorded with multiple instruments.

Once you have published these songs (sold or given away any copies), then anyone may record an arrangement of your songs without asking your permission, so long as they pay you your fees under the compulsory license provisions of the Copyright Act, usually about 9.1 cent per copy of the song. They can sell their audio recordings of your songs for any amount or just give them away; that doesn't affect what you are owed. They may not sell or give away the written arrangements. They mast not sync videos to your songs without your permission. They may not use the songs to advertise a product or service on TV, or play it live unless you grant those rights by becoming a member of ASCAP, BMI, etc.. There are many things they cannot do.

If the arranger wishes to own the arrangement of your song, this is something that they would have to negotiate from you. You would require a written a agreement.

All this is true whether or not you register. But registration is highly recommended because you cannot enforce your rights effectively without doing so.

I hope that helps! Good luck!

Jonathan

Vera

2/22/2014 04:08:16 am

Hello, thank you for your quick and detailed response! I thought I had understood, but I'm not sure I did.

In the post, you explained: WHO CAN MAKE A MUSICAL ARRANGEMENT?
"As we can see from the above language, the default rule is that ONLY the composer of a song can prepare a musical arrangement of the song. But thankfully, there are exceptions."

So this ban on arrangements is while the song has never been published? As long as the song has not been published, even if a musician gets a hold of the song, they cannot arrange it without my permission?

Once the song is published, then anyone can make an arrangement as long as they pay me the correct fees - is this correct?

Vera

2/22/2014 04:08:44 am

Kris

2/22/2014 02:15:32 am

I'm currently a senior in High School. I had an idea for a medley of multiple video game melodies. I was hoping to play it in a non-profit orchestra concert at my school. Would that be considered illegal?

Kris

2/22/2014 02:23:14 am

I would like to add that it is only going to be performed. It is not going to be distributed for use outside of the performance.

Kris link

2/25/2014 01:56:54 am

Kris,

I think you want to read this article first: http://www.acappella101.com/1/post/2012/02/permission-to-arrange-for-live-performance.html

Jonathan

Vera

2/22/2014 04:09:27 am

Vera link

2/25/2014 02:01:32 am

The ban on ANY arrangements or performances or recordings, is prior to the song being published. But following its publishing, the composer still retains the sole, exclusive right to prepare an arrangement, EXCEPT for the purpose of making a licensed recording under the compulsory license provisions of the Copyright Act. So once the song is published, anyone can make an arrangement FOR THE PURPOSE OF RECORDING IT, if they pay the right fees. That still will not give them the right to sell or gift the arrangement. I hope that helps.

Vera

2/22/2014 04:10:43 am

sorry for the repeated posts - I kept getting an error while trying to post!!

Bob (Bob Quaman)

4/18/2014 10:54:58 am

I am a teacher at a high school. Every year we host a marching band festival for local high school bands as a fund raiser for the vocal and instrumental music programs at the high school, and we have been doing so for over 30 years. As the copyright issue becomes more in question, we are concerned as to insuring that we do whatever we are supposed to do. For the past 10 years or so, an independent local recording company videos the show and sells the videos. They probably sell a maximum of 100 videos - probably less.

I am concerned we may be violating some copyright laws, or that the video company or the performing bands may be doing this. The published information is confusing.

I have read that three things are required for each tune - permission to arrange the music (realistically every performance involves music that has some changes from the published version like adding some percussion parts - and some is totally rewritten), permission to perform it (even standing still), and permission to march while playing it (a synchronization license)? Is this correct? Who is legally responsible for these things? Could we be liable in some way as the host of the festival? As I said, we sell tickets to the event as a fundraiser for our high school music program, but we do not make any revenue from selling the videos. We want to be legal, but the complication is intimidating. What should we be doing?

Jonathan Minkoff link

4/20/2014 04:05:52 am

Bob,

Here are the rights that implicated in the scenario you described: 1) RIGHT to arrange FOR THE PURPOSE OF PUBLIC PERFORMANCE (the purpose matters); 2) Right to perform publicly; 3) Right to SYNC a video to recorded audio and/or record audio and video together and then copy and distribute the video. For #1 read this: http://www.acappella101.com/1/post/2012/02/permission-to-arrange-for-live-performance.html For #2 the venue or the producing entity (you) must purchase rights from ASCAP, BMI, SESAC, and or SONY. This can be done via a blanket license. #3 Requires you to contact the publishers or composers of each composition and the performers and get their permission. The school or venue would probably be legally responsible for obtaining all rights and would be liable in the event of a lawsuit. The amount of money you make from the event is unlikely to have an effect on the legal analysis. I cannot tell you how likely a lawsuit is. Some rights holders are very aggressive. Some are extremely lax. Finally most districts have legal departments that they can turn to. I strongly suggest that you utilize yours! I hope that this is helpful to you and I wish you the best!

Jonathan Minkoff link

4/20/2014 04:13:05 am

Just to be clear, when I say "the performers" I mean the performers who will be in the recorded audio or video (probably students).

Jeff

4/24/2014 08:49:40 am

Hi Jonathan,

Thank younfor this website and for your timely responses to everyone's posts. I have read several different pages and posts and am still needing a little clarification. If you would be willing enough to answer it would really put my mind at ease. This year I have arranged several songs from different musicals to form my middle school's broaway review. We will be having 2 performances of the review at my school. We will be charging admission to both performances, but there is going to be no selling of the music I arranged and no videos made of the performance. Do I need to contact the publishing companies to get approval of the arrangements and the performance of them? Or do I fall under the safety blanket of ASCAP?

Thank you so much,

Jeff

Jeff

4/25/2014 02:53:41 am

Jonathan,

I apologize for the typos and spelling errors of my last post. With some further reading, I have found that the issues I am having are with small and grand performing rights. I am now feeling that because the nature of our production is a revue, I am going to need to contact each publisher and get permission. Is this correct?

Jonathan Minkoff link

4/25/2014 05:37:55 am

Jeff,

Are you staging the performance or just standing and singing? If it's the latter, you can usually just get the blanket license from the appropriate society (often SESAC). Also, be sure to read this article regarding arranging for live performance: http://www.acappella101.com/1/post/2012/02/permission-to-arrange-for-live-performance.html

Good luck!

Jeff

4/26/2014 03:49:19 pm

Hi Jonathan,

Thank you for your reply. Some of our pieces are standstill, and some have choreography that has been designed by our dance instructor. I have read the article you posted. That gives me some relief.

Jeff

Jonathan Minkoff link

4/29/2014 01:29:22 am

Jeff,

The choreography may invoke the need for grand rights. Check with your school's attorney on this one as I see some danger signs here. Good luck!

John

4/29/2014 12:13:32 am

Hello,
I am a High school choir teacher and my students are always asking me to arrange songs from the radio for them to sing. I was wondering if it is illegal to arrange a work for the choir to perform in a concert or do I need to obtain permission.

John

Jonathan Minkoff link

4/29/2014 01:32:39 am

John,

The answer you seek was right above you in this very article! Here it is:

WHEN MAY SOMEONE OTHER THAN THE COMPOSER PREPARE AN ARRANGEMENT?
Arrangements made by someone other than the composer are LEGAL when:

the song being arranged is in public domain; OR
the arranger has the explicit permission of any one of the song's composers/publishers to make the arrangement; OR
the song arrangement is created specifically to be recorded under a compulsory license, AND the arrangement IS recorded, AND proper royalties are actually paid in accordance with section 115.

I hope that's helpful!

Jonathan

John

4/29/2014 12:25:24 am

Hi again,

Next year during my pops concert, the band teacher and myself at my school want to have a 5th - 12th grade performance of a frozen medley (Band and choir). Is it illegal to arrange the voice parts for the elementary, jr. and sr. choir (making some of them easier for specific skill levels) if I purchase the arrangments by Mark Brymer first. We would have both the band arrangements as well as the choir pieces, I would just need to make the choir voices line up with the instrumental parts (or arrange a band score based off of the piano in the vocal music.)

Jonathan Minkoff link

4/29/2014 01:40:01 am

John,

It sounds like you are making extremely limited alterations of a licensed arrangement for the purpose of a live performance. So long as you are paying the appropriate licensing fees to perform the copyrighted works, I see no issues with this, based in part on this article: http://www.acappella101.com/1/post/2012/02/permission-to-arrange-for-live-performance.html

Remember that schools generally have attorneys, and any legal advice must come from your own attorney, not a website that just generally discusses the law (like this one). The reason for this is that YOUR attorney will ask you additional questions, do research, etc. to give you the right answer. All I am doing (or even can do) is simply discussing the bird's eye view of issues that may be relevant. That isn't legal advice. Just please keep that in mind.

Thanks and good luck!

Jonathan

John

4/29/2014 12:25:44 am

Kevin

5/1/2014 02:26:34 pm

What would happen if you arrange a piece for a public performance, but don't intend on making any profit? Does that infringe copyright laws? Will I need to seek permission from the copyright owner?

Jonathan Minkoff link

5/2/2014 12:52:55 am

Kevin,

Arranging for public performance is discussed here:

http://www.acappella101.com/1/post/2012/02/permission-to-arrange-for-live-performance.html

You'll read and see that public performance has some shades of grey to it.

For the most part, copyright law is not particularly concerned with whether you intended to or actually did make a profit. The primary focus is on whether your use violates one of the author's exclusive rights, whether you violated the right purely by accident or by a deliberate action, and the effects of your violation on the copyright holder.

Imagine copying The Beatles White Album and giving away free copies because you believe that all music should be free. You haven't earned a penny. You did it for love!

You are still in violation of the copyright act for a deliberate act that had a significant negative effect on the income earned by all the copyright holders in that album. You could owe something like $150,000 for each copy you made.

However, read the article, I think you'll find the situation a bit more hopeful.

Good luck!

Jonathan

Michael

5/27/2014 03:18:55 pm

Hi Jonathan,

Thanks for this awesome website. It has answered a lot of questions regarding arranging for me. I have been making string quartet arrangements of pop songs and posting videos of them on youtube. You mentioned that youtube videos like the ones The Piano Guys make bring revenue to the composer and youtube as well as free publicity to the Piano Guys so it benefits everyone. But if I have not gotten permission to arrange the music beforehand, am I technically doing something illegal?

Also, as a professional musician, I have noticed that many wedding gig groups will have music arrangements of pop music that they will play at weddings. Is it legal for them to have made those music arrangements let alone perform them?

Also, how does one get permission from a composer to arrange a song? I have searched online and it seems near impossible to locate or even understand how to navigate through this process which almost discourages one from going about it the legal way.

This final question doesn't have to do with arranging but I figured I would try asking anyway. I posted a video of a piece that I performed that is definitely in the public domain. It was a piece by J.S. Bach. But after uploading it, it got flagged for "Matched third party content." How can that be when I was the one who recorded the piece myself and since it is in the public domain?

Erik

6/15/2014 07:16:59 am

My question is what is the proper guidelines if you are arranging an arranged piece. Ex. A symphony orchestra piece has been arranged for Wind Orchestra. So what happens when you take the Wind Orchestra Arrangement and arrange that. Is the guideline setup as like a chain of command or do I just go to the original writer. The piece is also under copyright.

Jonathan Minkoff link

6/15/2014 11:01:38 am

If the arrangement is not copyrighted, as most aren't, then you only concern yourself with the original author of the work. If the arrangement is separately copyrighted, then you still usually only deal with the original author. The only exception is when you are directly lifting significant elements of the copyrighted arrangement, as opposed to elements of the original work, or elements that live in the public domain. This is extremely rare, but it could happen. In that case, you would need to deal with both copyright holders.

Rebekah H

9/24/2014 10:13:38 am

This is an excellent article, thanks for sharing. I am in a similar situation: I want to compose an arrangement of a song that is NOT under copyright, but I am going to use ideas I have gotten from a copyrighted arrangement. How unique does an arrangement have to be to be considered my own? Do I still need to gain permission to arrange as if it was an original composition by the first arranger?

Anne LaFaye

9/12/2018 07:48:29 pm

Jonathan,
This is not correct. One needs to specify whether the original underlying work is in the public domain or not, and if in the public domain, is the arrangement old enough to also be in the public domain.

An arrangement of a public domain piece is copyrighted upon its creation and protected - with the copyright being held by the arranger and not the original composer. (An arrangement of a non-public domain piece is sometimes able to be copyrighted, but the rights revert to the original copyright holder/owner unless specific permissions and transfers of rights have been granted.) Any derivative of an arrangement that is itself not public domain and is based upon a public domain original, is infringing without permission from the arranger. The original composer is irrelevant, as their work is no longer entitled to copyright protection (it is public domain). The registration (or lack thereof) merely affects a parties ability to bring a lawsuit and collect special damages for infringement.

Jonathan Minkoff

9/13/2018 10:52:29 am

This is a response to Anne LeFay's comment. She writes:

"Jonathan,
This is not correct. One needs to specify whether the original underlying work is in the public domain or not, and if in the public domain, is the arrangement old enough to also be in the public domain.

An arrangement of a public domain piece is copyrighted upon its creation and protected - with the copyright being held by the arranger and not the original composer. (An arrangement of a non-public domain piece is sometimes able to be copyrighted, but the rights revert to the original copyright holder/owner unless specific permissions and transfers of rights have been granted.)"

JM COMMENT: Yes. So far this matches the description above.

"Any derivative of an arrangement that is itself not public domain and is based upon a public domain original, is infringing without permission from the arranger."

This is false, depending on the phrase "based upon". A direct "lift" is a violation. But often a similar arrangement is not a copyright violation. This is because so much of the arrangement of a public domain work is itself still in the public domain. The entirety of an arrangement of a public domain work may be copyrighted, however that protection is frequently extremely "thin" in regard to its component elements, such as the new arrangers' instrumentation, key, and even chord progressions, along with the original composition's melody, lyrics etc. Thus, frequently only a very literal taking of an arrangement will be in violation of the new arranger's copyright. Of course, this is an issue of fact not strictly law, and without hearing the original in the public domain and the copyrighted arrangement in question, we commenters are all "whistling in the dark" -just speaking theoretically- but it's important to remember that the protection in question here is often quite thin. Thanks so much for your commentary! -Jonathan

The original composer is irrelevant, as their work is no longer entitled to copyright protection (it is public domain). The registration (or lack thereof) merely affects a parties ability to bring a lawsuit and collect special damages for infringement.

dino davis

6/16/2014 03:58:04 pm

If I wrote a song and created the basic structure and melody, and doing the a dry run a band member have some ideas to lend to the song are they entitled to any arrangement rights?

Jonathan Minkoff link

6/16/2014 10:58:15 pm

Dino,

This is the stuff that great lawsuits are made of! Why? Because you will say that the band member merely suggested some minor arranging ideas and so that member deserves no additional rights or payment. And the band member will say that they co-wrote the song with you and deserve 1/2 of the royalties. For this reason the band Queen had an agreement whereby they would always split the income from songwriting equally. My suggestion is to have an agreement in writing about who owns what in a band, even before you do "dry runs". It's the safest approach. I would also urge that you "fix" (record, notate, etc) a version of your songs before sharing them. Should a case ever be made against your authorship, you'll want clear proof of what you created and when.

Patrick

6/26/2014 02:19:13 am

Is there a length that you can arrange without need for permission? Like is it limited to 10 seconds? Any Time? 5 bars?

Jonathan Minkoff link

6/26/2014 06:44:12 am

Patrick,

I think the answers you are looking for are in this article:

http://www.acappella101.com/home/fair-use-using-others-works-without-permission-or-payment

Good luck!

Jonathan

Juan

7/9/2014 04:30:26 am

Hi, I am an instrumental music teacher in a high school. I have very "eclectic" ensembles, like 4 keyboards, 4 guitars, 3 violins, double bass and alto sax....I buy copyrighted material. Usually arranged for more traditional ensembles (jazz band or orchestra) but then I need to "orchestrate" for my ensemble. Can I add these parts and have my students play them both during our class time and at school concerts provided we DON'T make any money, or record, or charge admission? Thank you.

Jonathan Minkoff link

7/29/2014 08:16:15 am

Juan,

A different arrangement is an arrangement, whether or not you charge. So all the arguments and grey areas and legalese of the article above would apply. The fact that you "need" to make the arrangement due to the instruments you use, would not exempt you from following the law. I strong advise that you also read the other articles on this site for guidance as to the limitations of arranging. Good luck!

Louise

7/29/2014 06:43:58 am

Hi, great info here, thanks!
Hope I'm not repeating something already answered. I want to arrange music for school band (to sell). When I approach for permission should this be before I've arranged it or do the arrangement then get permission?
Also, how much is the licence likely to cost me for each song, just a ball park figure, any idea?

Jonathan Minkoff link

7/29/2014 08:20:00 am

Louise,

Legally, you should request permission before preparing the arrangement. The reason for this is that the author has a monopoly on even the preparation, not just selling. However, you may get a publisher or author that wants to approve your arrangement before granting permission to sell. In that case, that is permission to make an arrangement for the purpose of showing it to get approval. As for how much, there is no way to gage this. It's a monopoly so it could range from free to a simple "not at any price". Good luck!

Jamie

10/11/2014 08:33:54 am

Jonathan,

"Legally, you should request permission before preparing the arrangement. The reason for this is that the author has a monopoly on even the preparation, not just selling. However, you may get a publisher or author that wants to approve your arrangement before granting permission to sell. In that case, that is permission to make an arrangement for the purpose of showing it to get approval. As for how much, there is no way to gage this. It's a monopoly so it could range from free to a simple "not at any price". Good luck!"

Thanks so much for this post. After clicking around all over the interwebs for quite some time, I'm still confused as to permission to arrange vs. permission to record. Permission to record is fairly straightforward. Harry Fox has a simple online request process.

What is the mechanism for requesting permission to arrange? Whom do we ask, and how?

Jeremy

8/12/2014 07:03:33 am

What if I'm just arranging by ear and performing the said arrangement, possibly for money paid on the performance? No sheet music is being sold

Jonathan Minkoff link

8/12/2014 11:27:00 am

Jeremy,

Your question is right on the money! And the answer depends on where and for whom you perform.

If you perform privately, say, in your shower, then no permission is required.

If you perform publicly, then the venue you perform at will generally be held accountable for securing the performance rights. There are some rare instances when the artist can be held accountable to secure performance rights, but as I said, this is rare.

For a more complete answer, read this:

http://www.acappella101.com/home/permission-to-arrange-for-live-performance

Good luck!

Jonathan

9/1/2014 12:20:14 am

This 'derivative works' law should really be rewritten. It stifles creativity.

Jonathan Minkoff link

9/2/2014 05:00:12 am

Jo,

I'd love to hear what you think should be allowed. I personally think that making an arrangement should be subject to a compulsory license, the same as making a recording. I even think that a compulsory license to make videos for non-commercial purposes should be allowed. What do you think?

Jonathan

Becky Archibald link

9/15/2014 11:58:49 pm

Jonathan, I am a composer living in the US. A vocalist in Europe is asking me to write an arrangement (3 instruments plus voice) of a song in the public domain. She said she wants a "cover" vs an "arrangement" so that she can allow it to be published on her cd. Since it is a pd song, I know that I am allowed to arrange it. I'm trying to research whether it is in my best interest to make a cover vs. an arrangement. She is offering for me to share in the royalties, but wouldn't the royalties be much less, or are there royalties at all for covers?) And since it would be my arrangement, wouldn't it be up to me to give her permission to record it for her cd? (Which, of course, I would give her.) Maybe there are different rules overseas? Thanks for your help!

Jonathan Minkoff link

9/16/2014 02:19:53 am

Becky,

You have a quite an interesting situation here and it's really beyond what can be answered in a short blog comment. That's why if there's anything "real" at stake here, it's worth speaking with YOUR attorney about this, since I can't give you specific legal advice without doing research and asking you many more questions -something beyond the scope of this blog. But I'll mention a few issues to get the ball rolling.

Let me start by saying that I only practice law here in the US, so my understanding of EU law is not to be relied on (without research, which I have not done here). But generally, you may arrange any song in the public domain, and the law sees little or no distinction between a "cover" and an arrangement, except that the more original your arrangement is, the more protectable it is.

Let's say you are "covering" Mozart -that is, performing the parts he wrote in support of a melody he wrote with words he wrote. That's fine, but what did you add that makes the arrangement yours? In this case, nothing. You transcribed or copied the existing parts. You haven't added enough to make a copyrightable arrangement.

Alternatively, if you created a punk rock style accompaniment that reharmonizes the piece and changes the tempo and key, you would have a stronger protection: likely a copyrightable arrangement. This arrangement would be even stronger, and more certain of copyright, if you added a distinct, new melody or lyrics. This is because copyright places a special emphasis on melody and lyrics while deemphasizing chordal alterations, especially slight ones. (This is because all chords are public domain.) Then your arrangement would have independently protectable elements. Please also keep in mind that judges can be somewhat hard to predict in how they apply these concepts, but that's another discussion.

All that said, I don't know how important any of this is to your situation, practically. What I suspect will matter most is the written agreement between you and this artist/her record company, and your ability to insure that the terms you agree to are actually complied with.

In other words, if she promises to give you, say, 9.1 cents per copy of the arrangement, and full payment for all performances and streaming as if you were the composer of an original song, whether or not the arrangement is independently copyrightable, then your rights will stem from the contract. That's a desirable outcome for you as it partially limits your risk, as between you and this artist. The issue of copyrightability will then matter mostly as between you and any others who are not a party to the contract and who "cover" your arrangement.

Finally, as always, I recommend registration of the arrangement immediately in all countries where you expect to enforce your rights. In many jurisdictions, you won't even be able to start a lawsuit without having a registered work.

There are many more issues here, but I think we started the conversation, and gave other readers something to think about while hopefully nudging you towards getting your own attorney to handle this.

All the best to you! Please let us know how it goes!

Jonathan

Jonathan Minkoff link

10/11/2014 11:10:21 am

Jaime asked what the mechanism was for getting permission to arrange. If you make a licensed recording, the right is included and you do not have to make a request. For any other purpose, you must research the publisher or composer and ask. I hope that helps! Good luck!

Barb Banman

10/14/2014 11:59:38 pm

I have recordings of my performance of piano solos of piano arrangements (copyrighted sheet music by several different arrangers). None of the performed solos are my original composition. What type of mechanical license do I need for retail sale of the CD's? Can I copyright the CD's? Do I need to hire a publisher, and if so, what is resource for finding publishers? Thank you.

Jonathan Minkoff link

10/16/2014 02:08:10 am

Barb,

If the only thing you wish to do is release an album of you playing piano solos written by others, then I think this article should answer all your questions: http://www.acappella101.com/home/licensing-and-distribution

Jonathan

thanos

10/26/2014 12:57:52 pm

Hello,

I found your information very helpfull.I would like to ask you about a difficult situation. I wrote a song and i recorded it.I don ' t know any musical instrument so i recorded only my voice to show to the arranger how i would like to be the music of the song.Then i sent it to the arranger and i said to him to put three instruments to my song with the melody i show to him with my voice. Then i paid him for his services.So i would like to know who has the copyrights of the song and who is the composer of the song!
Thank you

Jonathan Minkoff link

10/27/2014 03:25:53 am

Thanos;

As always, I am an attorney, but not YOUR attorney and for any issue that "matters" I recommend that you hire your own attorney to get accurate advice for your situation. That said, almost always, the composer of the melody and lyrics is the copyright owner of the song, even if someone else arranges an accompaniment that changes the chords. I hope that's helpful to you. Good luck!

Hannah

10/29/2014 08:50:40 am

Hi! Great info! I just want to make sure I'm gleaning the right thing from all this. I'm a student teacher for a school who's mascot is a panther. I had the idea to surprise them with a 30 second arrangement of The Pink Panther Theme to play at the last football game. The way I understand this, that would be dangerous because it's in a public forum where it could end up on the internet and I could get sued. Is that the gist of it?

Jonathan Minkoff link

10/30/2014 09:58:12 am

Hannah,

If it would be legal to perform the piece AT ALL, then I would argue that you can perform your arrangement of the piece. The details of that argument are here: http://www.acappella101.com/home/permission-to-arrange-for-live-performance

I hope that's helpful. Good luck!

Jonathan

Ray

10/31/2014 12:20:15 pm

So if I wanted to arrange a piece for a group of fellow trumpets in my high school to play at a solo and ensemble contest, and not publicly publish or distribute the music, would that be legal?

Jonathan Minkoff link

11/1/2014 04:02:00 am

Ray;

My thoughts on live performance arranging are summed up here: http://www.acappella101.com/home/permission-to-arrange-for-live-performance

However, as a practical matter, you should check that the contest will allow you to do this. Many contests have their own rules regarding the use of arrangements. Good luck!

Victoria

11/21/2014 10:47:58 am

I am trying to produce a classical cd with songs all of which are in public domain. The pianist is playing the music as arranged in the public domain websites for the different songs. I am the soloist. I plan to record the performances and sell the cds. Is this legal?

Jonathan Minkoff link

11/21/2014 12:22:42 pm

Victoria,

Recording music which is in the public domain and then selling the recording is legal. To avoid potential issues, you may wish to have a written agreement with anyone performing on the recording or assisting in making the recording. The agreement would make clear who owns what and who is entitled to what payments. Also be sure that you are not recording a copyrighted arrangement of a public domain work. Good luck!

Shawna

11/22/2014 03:21:19 am

Hello and thank you so much for this article. I'm trying to make sense of all of this. I just don't want to make any mistakes. What I desire to do it make an arrangement off of someone else's arrangement. The arranger of this piece is not the composer. Now the composer would be the one who created the original version correct? Anyway, Am I free to proceed or do I need permission to arrange from the ARRANGER? I will be using this arrangement to perform live with an orchestra.

Shawna

11/22/2014 03:25:51 am

I'm sorry, Allow me to be clear. I'm a singer that wants to perform live with this arrangement.

Jonathan Minkoff link

11/23/2014 07:51:09 am

Shawna,

Typically, you only need to be concerned with the composers' rights. If the venue you are performing in has the right to perform the song (such as via a blanket license with ASCAP, BMI, SESAC...) then you should be good to go. The exception to this is if the song is in the public domain and the arrangement is copyrighted; then treat the arranger as a composer. That's a very rare case though! Good luck!

Allison

1/16/2015 11:18:49 pm

Thank you so much for this article. My situation is this: My grandfather made a wonderful arrangement (for piano) of the song "Penthouse Serenade". This song does not appear to be under public domain. I would like to publish his arrangement of this song. The song was originally published under Famous Music Corporation in 1931, but Famous Music Corporation was apparently sold to Sony/ATV Music Publishing (?). Who owns the rights to this song now, and what might my next step be in obtaining permission to publish and an arrangement? Do I stand a chance at doing this successfully?

Jonathan Minkoff link

1/17/2015 10:01:26 am

Allison,

You are very welcome! You are entering the "zone" of what an attorney does. They research who has the rights. That involves knowing whether this song's copyright was renewed properly, and whether the rights were properly transferred to another party, as well as other issues. I wish I could give you precise instructions so you could do it all on your own, but that's beyond the scope of this website. You certainly could call up Sony/ATV but what they tell you on the phone may or may not be accurate. That's just one reason why hiring your own attorney is important. I know this answer is probably not what you wanted to hear, but it is the best advice I can give you. I truly wish you the best of luck!

Allison Schommer

1/24/2015 12:29:18 am

Thanks Jonathan - I appreciate your feedback and advice. You have pretty much confirmed my suspicions. However, I do have a follow-up question for you: if I could find a sheet music publishing company that liked the arrangement enough, would they take on the responsibility of getting the proper license to publish?

Jonathan Minkoff link

2/4/2015 01:11:02 am

Allison,

Yes. If a company fell madly in love with your arrangements they could take on the task of securing any necessary rights. It's just good business. Good luck!

Jonathan

Jonathan Minkoff link

2/4/2015 01:14:56 am

I received this question: "So what are "public domain" songs ?? "

The answer is here: http://www.acappella101.com/home/public-domain

What they are is the easy question. Whether they are, is only sometimes an easy question. Check it out!

-Jonathan

Louis

3/12/2015 01:48:06 am

We are joining a singing competition, can we use a re-arrange song?

We have just raise the note to one or two level up.

If the answer is Yes, Will it not be affected by the judges decision?

Your quick reply is highly appreciated.

Thanks,

Jonathan Minkoff link

3/12/2015 05:02:20 am

Louis,

Your English is a little bit "broken" but it seems like you are asking if transposing an arrangement creates a new arrangement. I know of no instance in which merely transposing an arrangement qualified as a new arrangement. You also asked how judges' would react to that choice. Of course each judge may feel differently so there is no way to know, however, a note to the judges indicating that you will be performing your arrangement in the key of X instead of Y might go a long way to making the judges more comfortable with your performance. Good luck!

Cam

3/13/2015 02:57:34 am

Okay, this may be a weird question, but we'll see how goes: I'd like to kind of parody a TV show(the Walking Dead, specifically) and would like to arrange an intro track that is similar to the actual Walking Dead show's introduction. Ideally, I would be able to use the same melody line, but just change the rest the arrangement a little bit to make it decidedly different, but still a recognizable nod. Where is the boundary there? Is it permissible to take the basic melody line, change the whole thing around, and use it as an intro for a parody, or is that crossing the line? Thanks for the info! Super informative already!

Jonathan Minkoff link

3/13/2015 04:48:27 am

Cam,

In making a parody, you must be parodying the creation or creator. If you use Walking Dead to make fun of, let's say, Obama, that's not technically a parody. Secondly, I strongly recommend that you do NOT use the melody or lyrics. Instead use just enough of the general feel (choice of instruments, modality, effects like reverb and EQ, etc.) to evoke the mood. Hope that helps! Good luck!

An aspiring piano arranger

3/20/2015 05:33:20 pm

Hi There,

I was wondering of arranging and selling copyrighted pop music in to piano arrangements. Is there anyway that I can buy the compulsory license so I can legally sell the arrangements? I want to do it the right way but it seems like no where offers this service for any ordinary person like me. Is this even possible other than going through and making deals with big music companies such as sheetmusicplus.com or musicnotes.com? Thanks for your message! The more I try to investigate the right way, more lost I get. As you wrote, "It's time for a compulsory license for musical arrangements. Composers get revenue, arrangers and artists get peace of mind and everybody wins." You've written this article in 2012, has anything changed since?

Jonathan Minkoff

3/23/2015 11:39:47 am

Hello! Buying a compulsory license does not entitle you to sell arrangements. You need permission of a composer or publisher. There is not yet a compulsory arranging license that entitles the arranger to sell the arrangement. Congress is currently evaluating changes in the law, but it's uncertain as to the outcome. Good luck!

Jon

3/23/2015 01:06:19 pm

First of all, thank you Jonathan for answers to so many of these questions! Are compulsory license for musical arrangements in the works? I'd like to hear your thoughts on this.

Jonathan Minkoff

3/24/2015 01:18:26 am

Jon,

Thanks for the kind words. It's tough to tell what is being "seriously" considered by Congress. Politics are a mysterious thing.

Professional Arranger

4/14/2015 05:03:43 am

With a community that has become largely based on interpretation of popular music, I think it is safe to assume that a majority of arrangements that have been written and performed in recent memory have all been - in one way or another - illegal. Do you have a suggestion of anything that we - as arrangers and performers - can do to ensure our legal safety?

Jonathan Minkoff

4/14/2015 11:02:01 am

Dear Professional Arranger;

I agree that that most arrangements are done illegally. Composers are screwed out of payments they are owed and arrangers live in limbo.

In answer to your question, arrangers can better insure their safety by having signed legal agreements in which their clients assume all responsibility for acquiring any necessary permissions to arrange.

One way those clients can obtain the necessary permission is by making a licensed recording for which the arrangement is being sought. If the rights for that are paid on time and to the correct party, they will include a compulsory right to arrange.

Jonathan

Ross

4/22/2015 05:31:06 am

Hi Jonathan,

Thanks for all the great info.

I have a question about arranging sheet music. Since I purchased the sheet music, does arranging the song for a group to perform give me fair use arranging rights or does the group still have get the performing license in order for the arrangement to be "legal"? I have verbiage on all of my arrangements as you've indicated above "clients assume all responsibility" so thank you for confirming that.

Thanks!

Jonathan Minkoff

4/22/2015 08:09:18 am

Ross,

You've got some language in your question that has me a little confused. But I'll do my best to answer.

The best approach to arranging is getting permission to arrange from the composer or publisher.

If you can't, then you can purchase a compulsory license to record the work. That comes with the right to arrange for the purpose of making the recording. But it won't give you the right to do many other things like sell your arrangement.

I hope that helps!

-Jonathan

Chase

4/29/2015 03:55:32 am

If I want to arrange a mashup of, lets say, Too Close by Alex Claire and I Need You're Love by Calvin Harris feat. Ellie Goulding to post on youtube and share on facebook, do I need permission of any kind to post it? Thanks!

Jonathan Minkoff

4/29/2015 05:03:35 am

Chase,

Technically and legally you need to get a synch license from both composers/publishers that includes permission to combine the songs. But as a practical matter, many people just go ahead and do what they want and then post it on youtube. Then if the artists complain, youtube takes down the video. To get a good idea of whether yours will get a takedown notice, you can search for other mash-ups using these artists on youtube. If those are up, your chances are good that your version will also be allowed. If not, you will need to go about getting a synch license as described. Good luck! -Jonathan

Byron

5/20/2015 09:39:26 pm

Dear Jonathan,

Thank you for your thorough research on our behalf and for the insightful discussion.

I have a question that I hope you can advise me on preliminarily:
I heard a catchy song written as jingle for a TV advert. I want to arrange it for vocal ensemble and publish the arrangement. To date, to my knowledge, based on 'research', I can NOT find ANY commercially recorded version of the song, or any published sheet music thereof. The ONLY 'version' - in any case - is that heard on the advert.

The writer/performer (I happen to know that this is the same person) has not recorded and published it, do I still need to get permission, or pay a kind of royalty for arranging this piece? It goes without saying that on the score I will credit the original composer as the composer and list myself only as arranger.

What are your thoughts?

Jonathan Minkoff

5/26/2015 02:53:04 am

Byron,

The legal question here is does a commercial (public performance) constitute publishing (distribution for sale or for free to the public). Generally the answer is no. However, look to see whether the song is made available by the company for free download on their website. If it is, that would likely constitute publishing. Once the song is published, you do not need permission to record it and to arrange it to make the recording. You only need to make the proper payment. By the way- the "advice"/general discussion I am providing is always subject to all the disclaimers on this site. But something in your post reminded me of an additional disclaimer: you used the word advert. That's not typically used in the US. We say "advertisement". All my legal background is based on US law. If you were based in Iran, let's say, then it might be the case that NONE of what I say is applicable! That's why it's key to have important questions evaluated by your OWN attorney. I wish I could give every one answers they can fully rely on, but it's just not possible without actually doing all the expensive research that you pay lawyers so handsomely for. Think of it like getting doctor's advice without the doctor examining the patient: dangerous and often wrong! Good luck to you, wherever you are!

Byron

6/3/2015 10:18:35 pm

Jonathan,

Thank you for the reply, I appreciate your time. Yes, I am based outside the US, so your referral to an attorney is wise. I want to publish through a US publisher, but I guess any infringement on home-soil should also be mitigated. Still working on getting to a point where I can actually afford legal advice!!..hehe.
All the best, and thanks for keeping up this interesting site.

Kind regards

Bill Heigen link

6/20/2015 09:18:09 am

Hi Jonathan! I came across some of your articles at www.acappella101.com. They are really helpful! Thanks for doing this!
However, I couldn't find an answer about what a really need to do to make my YouTube Channel 100% legal regarding copyright laws. Let me explain:

I have a YouTube Channel called "Choral Good Vibes Project". Every Tuesday I upload an excerpt of a pop/rock song arranged in 4 parts. It is a multitrack a cappella channel, which means I am the only one singing. I change the style of the song, giving it a more classical approach. In order to do that, I change some rhythms, tempo, and harmonies. The sheet music is available for free download at my website www.billheigen.com.

I am not selling the recordings. Which kind of fee/license should I pay in order to keep up with my work? If I have to pay this, where can I find info about how to get the license?

Here is the link for my channel:
https://www.youtube.com/channel/UCj7csACrKqFoO2jyjKYU2vA

Thank you so much!

Best,
Bill

Jonathan Minkoff link

6/22/2015 07:29:54 am

Bill,

Thanks for the kind words. Now to your discussion...

When you upload a "cover" to youtube, the composers/publisher has the right to refuse to allow the video, or to monetize it, or to just allow it. (This is not a part of the law so much as the way google manipulates a loophole in the law. But that's how it works in real life.)

When you record audio SEPARATELY FROM VIDEO, whether you sell it or not, you are supposed to pay the composers 9.1 cents PER COPY THAT YOU MAKE. (Not sell). This is called a compulsory license.

To sell OR GIVE AWAY sheet music for a cover song, you need the permission of the authors/publishers. There is a very limited exception: you are allowed to make sheet music for the purpose of recording an audio only cover for which you have timely and properly paid the statutory licensing fees. This is extremely limited. It would not give you the right to then sell or give away that same arrangement.

I have several additional articles on this website that will assist you in getting the licenses you need.

I hope that's helpful to you!

Jonathan

Noah

6/26/2015 11:10:02 am

Jonathan,

I would like to make an arrangement of a main theme to a film and upload a MIDI recording of the arrangement to SoundCloud. Would I need permission from the composer for this? Thanks.

Jonathan Minkoff

7/16/2015 05:22:48 am

Recording someone else's published work does not require permission, but it does require payment. You might find this article useful: http://www.acappella101.com/home/licensing-and-distribution

Good luck!

Jonathan

Lou

7/15/2015 03:09:47 am

Hello. I recently recorded myself on video playing a song from a video game. I copied (learnt) this song off YouTube literally by watching the finger movements of the person originally playing it. This arrangement of the song was his original transcription and arrangement. Do I need his permission to upload a video of me playing the song using his arrangement?

Jonathan Minkoff link

7/16/2015 05:12:17 am

Lou,

Generally, the arranger of a song does not have any legally recognized ownership in the arrangement that is distinct from the original copyright. So the original composer's permission is required, but the arranger's permission almost never is. The only exception is when the arrangement was specifically authorized by the composer and it's sufficiently distinctive and varied from the original to qualify as a kind of derivative work.

Jonathan

Tom

7/20/2015 01:58:22 pm

Jonathan -

This a great thread and I thank you for starting it and staying part of it over the last (almost) 3 years!

My question is about lead sheets. Often times, when we talk of an arrangement, people envision that all of the parts (sans vocal percussion) are explicitly written out. If, for example, I were to arrange any rock song and write out the backgrounds as TTBB + Solo, I have clearly included the copyrighted melody and lyrics of song in question. In this situation, it is clear to me that this a derivative work of the song in question and I need to have cleared, legal arrangement.

Now, I choose to create a new TTBB arrangement, however, this time when I write the arrangement I do NOT include the solo line. The background notes may or may not try to mimic what the instruments do (I'm not sure if this even matters). This is, at least to me, equivalent to a jazz lead sheet. In addition, I write lyrics that the singers sing for the TTBB backgrounds are either A) standard a cappella nonsense words (do, ba, oo, ah, etc.) or B) real dictionary words that are clearly NOT the lyrics of the song, though they could echo, be related to, or make fun of the solo, but do not blatantly repeat (Ex: SOLO: "I cross the street"; BACKGROUNDS:"Ooo, look both ways like mommy said). Hey, you may not like my arrangement, but it works.

So my question is: Do I have to go through the same process to make a legal arrangement? Jazz musicians, to my knowledge, do not have to go through this to create lead sheet (that is why "The Fake Book" is possible, yes?). I know that chord progressions are not something that can be copyrighted, and I can't see anyone actually being allowed to copyright the lyrics of "do bah" sung for 3:00+ minutes.

And just for FYI: I typically write arrangements out that stick true to the song, and as such do not write the solo out (ok, maybe I'm just a lazy arranger sometimes). I get my arrangements cleared so I am legal and I have no problem doing so. However, it is has recently come up as a question because of a time sensitive performance issue (the group in question will only perform legit arrangements), and I know how long things can take to get cleared sometimes. So, in your lawyer (but not my lawyer) opinion, where do I stand on this issue? I mostly want to know so I can talk more intelligently to the unknowing powers that be and say "Hey, I don't have to do that, but I will because I am not a jerk."

Sorry for the crazy long post!!

Jonathan Minkoff

7/21/2015 12:40:41 am

Tom,

Thanks for the kind words.

To your question: only copyrighted elements of a song are protected. You may freely use any non-copyrighted elements. If your work uses none of the copyrighted elements then I'd say you have a strong argument that you need pay no fees and gather no permissions.

The main issue that could bite you in the butt one day is one that made headlines in 2015 with the "Blurred Lines" Marvin Gaye case. The issue is whether the combination of many elements, which are themselves non-copyrightable, will result in something that is copyrightable. This is a complex area of law and very hard to predict.

While I don't agree with the methodology, I'd say a good rule of thumb is that the closer your work gets to seeming like a rip-off, the more the court will wiggle to find you liable.

I hope that's helpful to you. Good luck!

Jonathan

Gershom

10/7/2015 12:20:45 pm

What do I need to do to start my own business and legally arrange and sell Pop, R&B, Rock ,etc. songs to be played by high school or college marching and pep bands?

Jonathan Minkoff

10/7/2015 01:24:52 pm

To be legal in making and selling written arrangements, you need permission to arrange from at least one author or authorized publisher per song.

Many of us are hopeful that new copyright laws will make this easier, but as of now, that's what you have to do.

Jonathan

Laura

11/1/2015 08:01:41 pm

If I arrange a song for my school's pep band does it need permission? Also, if I base it off of a different arrangement with some tweaks should I ask that arranger for permission?

Jonathan Minkoff

11/2/2015 07:45:15 am

You are "someone other than the composer". And you want to "prepare an arrangement". So the article says...

WHEN MAY SOMEONE OTHER THAN THE COMPOSER PREPARE AN ARRANGEMENT?

Arrangements made by someone other than the composer are LEGAL when:

the song being arranged is in public domain; OR
the arranger has the explicit permission of any one of the song's composers/publishers to make the arrangement; OR
the song arrangement is created specifically to be recorded under a compulsory license, AND the arrangement IS recorded, AND proper royalties are actually paid in accordance with section 115.

[OR]

Arrangements may (possibly) be legal when the arrangements are created by or for a group publicly performing where the group or owner of the performance space has paid for the rights to publicly perform the song.

[OR]

Parody.

There ya go!

As to whether you need to ask permission of another arranger: generally no, unless the arrangement is so unique that it has its own copyrightable elements and you are using those elements. This is quite rare.

Generally, arrangers who aren't selling anything or putting their arrangements on the internet just arrange without any permissions at all. This isn't always legal but it is common. To be 100% legal follow the advice of the article. Good luck!

Jonathan

Sonal

11/19/2015 11:03:37 pm

Hi Jonathan,

I paid for a mechanical license for a cover of a song I wanted to do. The original is a rock song, I wanted to do an electronica version. I haven't changed the vocal melody or the lyrics at all. The original song uses guitars and drums, while my as-yet-unreleased version uses only synths and, well, electronic sounds.

My question is this: am I allowed to do this kind of cover with the license I have obtained? I ask because when I received the license, it said this:
"d) Your authorization is limited to reproduction of the Composition(s), and does not include the right to rearrange the Composition(s),"

Does my version count as a rearrangement?

I'm confused because I had found this earlier while looking up the Copyright Law:

"The compulsory license includes the privilege of making
a musical arrangement of the work to the “extent necessary
to conform it to the style or manner of interpretation of the
performance involved.”

Would you have any more clarity about this?

Thanks in advance!
Sonal

Jonathan Minkoff

11/20/2015 08:45:39 am

If you paid a compulsory license then you DO have the right to arrange the song for the purpose of making the recording.

What you cannot do is sell the sheet music of your new arrangement.

But you certainly can sell the new recording you made with synths of a song that formerly had guitars.

All the best, Sonal!

Jonathan

Sonal

11/20/2015 08:21:51 pm

Thank you very much for the prompt and clear reply, Jonathan!

I was very excited about the cover I'd made and now I'm happy I'll be able to release it :)

Have a good weekend!

11/27/2015 08:25:59 pm

Hi! I'm a senior in high school, and arranging a stand tune for my marching band for next seasons football games. The tune is "Never Gonna Give You Up" by Rick Astley, I'm sure you know it. Anyhow, what's the legality of me making entirely free copies of my arrangement for marching band, which came from a piano arrangement of the song, which derived from the original? Would I need to ask both the piano arranger and Rick Astley's people for permission, or just Rick Astley? How would I go about crediting the both of them if necessary? And if sports fans have to pay for a 5 dollar to get in, even though the band nor me sees any of this money, would that be considered profiting off it? Sorry, lots of questions, I know, I'd just like to not get my pants sued off my first year outta high school.

Jonathan Minkoff

1/9/2016 05:52:21 pm

CJ-

First, let me apologize for not getting back to you sooner. Somehow I missed your post!

Now to your situation: it sounds like you want to know whether you can make an arrangement for live performance? See this link for the answer: http://www.acappella101.com/home/permission-to-arrange-for-live-performance

You also want to know whether you need permission from the other arranger. That generally depends on how creative and distinctive the arrangement really was and whether the arranger had permission to make their arrangement. If it's just the material found in the original or if the arranger did not have permission, then you do not have a legal obligation to the arranger.

Finally, whether you make money, and/or whether fans pay money, are both issues that do NOT determine whether you are infringing copyright.

You can be a terrible businessman and still be an infringer! Profit may affect the severity of your punishment and the likelihood of arguing Fair Use as a defense successfully. See this article: http://www.acappella101.com/home/fair-use-using-others-works-without-permission-or-payment

I hope that answers your questions! Good luck!

Jonathan

Brooke

12/29/2015 05:04:45 pm

Im a freshman in high school and im arranging a full percussion ensemble of a song originally composed by twenty one pilots and im wondering what i have to do to be able to sell this arrangement once i am done.

Jonathan Minkoff

12/30/2015 11:12:57 am

Dear Brooke;

Selling your arrangement legally requires permission from at least one composer of the song or their publisher.

That's probably not the news you hoped for, but it's the reality of the situation.

Good luck!

Jonathan

Concerned community member

12/30/2015 10:00:12 am

I can name, off the top of my head, numerous "professional" arrangers within the a cappella community that do not seek out any sort of permissions for their arrangements. And yet these arrangers continue to sell those arrangements, as well as churn out brand new ones every day. How is this possible?

Jonathan Minkoff

12/30/2015 11:10:57 am

Dear Concerned Community Member;

Yes. I too have noticed many arrangers selling arrangements. The only legal ways to do this are listed above.

I have also noticed many cars on the highway going faster than the speed limit.

Don't let either observation regarding "enforcement" convince you that the law doesn't apply to you.

Good luck!

Jonathan

Nina

1/8/2016 11:05:28 pm

Dear Jonathan,

What a goldmine of information! I manage a production duo who just discovered that one of their compositions (the track in a song written by another songwriter, not the artist) was used without their permission by an independent artist and put it up for sale. At the time, the artist recorded the demo than reneged on payment claiming lack of funds,we thought it was over and never heard from her. This was 7 months ago. But in fact, used a rough mp3 to record a video post on youtube and VEVO, sell on itunes, and promote on her website and numerous music blogs.

I am preparing a cease and desist letter - and if they do not comply or decide on a settlement I am preparing for legal action. Am I within my bounds to do this?

Thanks so much for your insight.

Jonathan Minkoff link

1/9/2016 05:32:53 pm

Nina,

Thank you so much for the kind words! As I understand it, you represent a Duo and they wrote and recorded a track which another artist used to create a new work which that artist then sold. If those are the facts, I believe you would have a very strong case. However, I recommend that you REGISTER all your copyrights before proceeding.

Best of luck to you!

Jonathan

David Carter

2/10/2016 05:43:54 pm

Having read a number of the above comments, I still have a question. My sister sings in a women's choir that is made of all volunteers and sing exclusively for free. Their performances are mostly for their own retirement community and surrounding elder care facilities. They have no budget, do not charge for any performances, and no one profits in any way from their performances. The people they perform for want to hear songs from their youth - the 30s and 40s. The cost of purchasing copies of arrangements for 20 singers is prohibitive for them. If I write some original arrangements for the group that would never be sold, distributed or profited from, would I legally still have to receive permission from the owner of a copyright owner? The question is, if these arrangements are never distributed to the general public and only performed in this kind of setting, and there is no monetary gain for anyone involved, the performances are not recorded, is it necessary to get permission? Its basically the same as a church choir singing for their congregation...

Jonathan Minkoff

3/15/2016 12:17:19 pm

Whether you profit or not is not a major aspect of the analysis. Many people have an instinct that it should, but that's not the law. The "harm" you cause is using someone's work without permission. Here that's the composer of the song, who "owns" the exclusive right to prepare arrangements. So the analysis I provide in the articles on this site are applicable even to a retirement home and even if you don't sell the arrangements and even if you don't charge for admission and even if you don't have enough money to buy arrangements. For infringement analysis purposes, that all does not matter. (It might come into play for damages, but that's another analysis.) Now, I cannot tell you whether this would be enforced or not. I would hate to see a senior community sued! But it could happen. I hope that this is helpful to you!

David

3/14/2016 05:30:20 am

What about an arrangement legally done in another country, say Canada or the UK, and purchased by someone in the US for performance? Is that legal?

If I perform an arrangement which was done without permission but didn't know that, am I liable for infringement?

David

3/16/2016 07:01:12 am

To be clear, this is from the perspective of someone who had NO role in the arrangement, but purchased an arrangement from an arranger who offered his arrangement for sale to the general public with a clear indication that it was done with permission of the copyright holder.

If it turns out that this arranger has lied and not secured permission, are all of the people who have purchased this arrangement liable for infringement? In other words, is legally incumbent upon everyone to verify permissions on every piece of music we purchase for performance?

Jonathan Minkoff

5/24/2016 08:44:45 am

The question you are asking is really this: does copyright infringement require knowledge or is it strict liability? Surprisingly, copyright infringement is a strict liability analysis. Damages are greatly altered by whether the infringement was done by accident, or negligently or deliberately. But infringement can occur by accident. So, another way to view this is that one liar (the arranger) cannot protect an army of infringers from liability. I hope that helps and sorry for the delay in responding!

Priscilla Blythe

6/10/2016 02:40:41 pm

I have a question. I bought sheet music easy stuff for the flute, and my daughter wants to play it for a competition. Her teacher suggested finding an arrangement that has piano accompanied with it. I found something, but only a sample, but it gave me an idea who the piano part should go, so I filled in the blanks myself. I don't want to take credit or it or sell it. I'm putting the composer's name of it, but I don't know who arranged the sample part I found, so was just going to leave that off. Is this a bad idea or is it okay?

Jonathan Minkoff

6/14/2016 01:14:57 pm

Your question is whether it is ok to arrange for the purpose of a private performance? The answer is no since arranging is a separate right of the composer and the performance isn't otherwise licensed (nor does it need to be). However, if you paid 9.1 cents to record that performance, then the answer would be yes, the right to arrange is included. This is a highly technical answer. In a face-to-face, non-public performance in an educational environment, I would expect that your improvised arrangement will not present any problems. Good luck!

Edward Kramer

7/9/2016 07:14:27 pm

I make arrangements for my SAB church choir, which I direct. Sometimes the Altos sing a few tenor notes as I mark in their music. Sometimes I make a written out SAB arrangement from a SATB, sometimes I harmonize something in unison for SAB. They sing only at church services. The church has the "One Licence". Is any of this legal.
I have never asked anyone for permission.

Edward Kramer

7/9/2016 07:14:34 pm

Edward Kramer

7/9/2016 07:15:16 pm

I make arrangements for my SAB church choir, which I direct. Sometimes the Altos sing a few tenor notes as I mark in their music. Sometimes I make a written out SAB arrangement from a SATB, sometimes I harmonize something in unison for SAB. They sing only at church services. The church has the "One License". Is any of this legal.
I have never asked anyone for permission.

Edward Kramer

7/9/2016 07:15:51 pm

I make arrangements for my SAB church choir, which I direct. Sometimes the Altos sing a few tenor notes as I mark in their music. Sometimes I make a written out SAB arrangement from a SATB, sometimes I harmonize something in unison for SAB. They sing only at church services. The church has the "One License". Is any of this legal.
I have never asked anyone for permission.

Jonathan Minkoff

7/11/2016 06:48:56 pm

Edward;

If the songs are in the public domain (http://www.acappella101.com/home/public-domain), which many Church hymns are, you can make any arrangement you like. Go wild. If they are not in the Public Domain, but you have paid for permission to perform the song, then I argue here (http://www.acappella101.com/home/permission-to-arrange-for-live-performance) that you have the right to arrange the song for your performance needs.

For a timely paid dime (9.1 cents, actually) in mechanical licensing fees, if you record the arrangement as you perform it, then your arrangement is legal.

And in the end, the changes you describe in your question are unlikely to ruffle many feathers so long as you pay for the rights to perform the music.

Good luck!

Jonathan

Alex

7/15/2016 03:13:02 pm

Hi Jonathan,

First off - I'm impressed and thankful that you've been responding to the questions on this post for over four years now - thank you!

Two questions:

My group is looking to record arrangements of two hymns that have been arranged but are in public domain. The arrangement being recorded was transcribed aurally, and modified/simplified - I believe at least 8 measures' worth.

Would we need permission from the arranger to put this on a recording?

Alex

7/15/2016 03:13:12 pm

Jonathan Minkoff

7/18/2016 01:33:56 pm

Alex,

Thanks for the kind words!

Q1
While I cannot know the answer without hearing the two arrangements and the public domain hymn, I can say that generally you will not need any permission or payment to an arranger who partially inspired your own different arrangement.

Q2
There is no second question. :-)

Good luck!

Jonathan

Martin

8/3/2016 09:47:03 pm

I'm told if I get a mechanical license, I can arrange a song (notate the music for different instruments) and have my band record that arrangement. If I want to perform the music, I will then need to get a performance license. Are there any other licenses I will need?

Jonathan Minkoff

8/5/2016 06:31:15 pm

Martin,

Based on your description, no.

Good luck!

-Jonathan Minkoff

Michael Farr

8/10/2016 05:24:49 pm

Hi Jonathan, I'm in a choir. We do pay BMI and ASCAP et. al. monthly for performance rights. Additionally, we always purchase a copy of sheet music for each choir member (we believe composers should make money and go on composing!) but we usually make our own TTBB or SATB (+ guitar or other instruments) arrangement. We often return to songs every 5 or so years or so, but we can't afford to store 25 paper copies that we never used anyway. Can we photocopy our own arrangement for our own members? We do keep receipts that show that we've purchased a copy for each member. What about when we don't do our own arrangement but also can't afford to store paper music for 5 to 10 years? Can we make 25 copies of a piece of music for which we have a receipt that shows we bought 25 copies?

Can we put music on a private server so they can print at home, password protected so that only members can access? Typically we make mp3s of the individual parts to help singers learn. We are happy to pay the 9c per copy you mention above.

Sorry for the long question but I think pretty much every choral group is in the same situation.

Mike Farr

Michael Farr

8/10/2016 05:25:05 pm

Michael Farr

8/10/2016 05:25:40 pm

Michael Farr link

8/10/2016 05:25:48 pm

Jonathan Minkoff

8/14/2016 10:56:11 am

Mike,

Firstly, thanks for supporting composers! They have never needed your help more than they do today. (For just one example of how tiny the payments can be, even for a tremendous smash hit: http://www.digitalmusicnews.com/2015/09/24/my-song-was-played-178-million-times-on-spotify-i-was-paid-5679/ )

And thanks also for the great question; it's one of the most interesting I've received.

Restated: Is it permissible to digitally save and later print or view on screens, copies of deliberately destroyed, licensed sheet music copies, in a one-to one ratio? (That is, for every copy you bought, you have no more than one copy saved/printed/displayed).

I don't know of a case that addressed this topic, but I would argue that IF you retain proof of purchase, and destruction of copies, and you also institute some reasonable method of insuring the one-to-one maximum ratio, then I believe destroying the paper and using the scans should be permissible under the theory of "space-shifting". This is similar to the the theory that allows VCR and DVR recordings of TV shows to be permissible. In that case, according to the US Supreme Court, you are time-shifting.

This is not settled law, but I believe you would have the better of the argument. I also believe that most composers and publishers would have little to complain about given that you are purchasing both performance rights and sheet music in a world where so many others are less attentive to the requirements of the law.

I'm not going to really address the degree to which your TTBB or SATB arranging constitutes a separate arrangement from the purchased copies. That would require comparison of what you bought to what you made. But I refer you to the article above to the degree it constitutes a separate arrangement.

All the best to you!

Jonathan

Jonathan Minkoff

8/14/2016 10:59:53 am

Mike,

And as for making mp3s for learning purposes, technically the law does not differentiate the purpose of the recording. So if you are making an MP3 of a copyrighted song, whether for sale, or to give away, or to study, then you should do so under the compulsory license, as you alluded to in your comment.

Jonathan

Thomas

8/16/2016 06:35:09 pm

Hi. I am 16 years old and I like arranging music. I wanted to arrange a "Pirates of the Caribbean" medley for a youth orchestra I'm in. I know how tough Disney can be about the copyright laws. Would it be illegal to perform this arrangement at a venue that might cost money to enter? There would be many other pieces that are fine in terms of copyright laws but I'm not sure if Pirates of the Caribbean is. I have not asked for permission from Disney. This is all so confusing so if you could explain it to me, it would be awesome.

Thanks
Thomas

Thomas

8/16/2016 06:35:16 pm

Thomas Cumins link

8/16/2016 06:35:33 pm

Jonathan Minkoff

8/16/2016 06:45:18 pm

Thomas,

Firstly, big congrats on starting your arranging career!

Now to your question: do you need permission to arrange a song which is not in the public domain?

My thoughts on this topic are here: http://www.acappella101.com/home/permission-to-arrange-for-live-performance

I would add that I agree that Disney is unusually litigious. You might consider whether it's worth it to "poke the tiger" whether or not you might end up in the right.

I hope that helps!

Jonathan

Katarina

8/20/2016 11:36:14 am

Hi! I finally got confused. If i'm making piano cover to rock song - is or cover or derivative song? for example, i make song played with guitars, drums and voice , without piano at all - and make my own version with piano. without drums, voice etc
What kind of licence need I to get?
Have i first ASK . before i make smth with song?
And if i want to sell my arrangement - what should i do?

Thanx

Katarina

8/20/2016 11:36:53 am

Jonathan Minkoff

8/22/2016 10:59:03 am

I interpret your question as this:

"In the US, what license do I need to record my own new arrangement that changes the instrumentation or voicings of a copyrighted song?"

Answer: a compulsory license. This includes the right to make a new arrangement for the purpose of making the new recording.

Good luck!

Jonathan

Kay B. link

1/9/2017 11:55:56 am

Hi. I'm a teenager who's started a youth chorus. We're wondering what legal action and/or license we need to perform four songs.

Under Pressure: Queen and David Bowie

Best day of my life: American Authors

Living on a prayer: Bon Jovi

And Country Road: John Denver

I can't seem to find anything that I understand, as I have some issues with vocabulary comprehension, so if you have answers to any of this, I would really, really appreciate it! It would literally make my dreams come true.

Jonathan Minkoff

1/17/2017 09:50:16 pm

Kay B.

You can privately perform the 4 songs without any payment or license. You can publicly perform the songs without payment or license so long as the venue you perform in has licensed them -usually as part of a blanket license with ASCAP, BMI or another PRO. You can also buy a license yourself for each of the songs through the PRO that represents the songwriter/publisher. But overwhelmingly this is handled by the venues not the performers. You may find some of the other articles on this site useful to understanding what's necessary in your specific context. Good luck!

Kay B. link

2/14/2017 01:38:51 pm

Thank you SO much, Jonathan! As I'm just a beginner and a teenager and just launching into this, I need to know as much as I can, and I've searched and searched for answers, yet I came here and you managed to tell me all I know in one shot. Now I can make this work, so from the bottom of my heart: Thank you so very much! Because you were able to tell me this, my dream is finally able to come true!

Elaine link

1/17/2017 05:58:59 pm

Thank you for this website, Jonathan!! I have a question in perhaps the opposite direction of most here. I'm the original composer of a solo a cappella piece, which a colleague arranged for SATB chorus with my permission. The SATB arrangement has been done by several groups and has a life of its own now; every so often I'm asked for permission to have it performed, and/or asked about where and how a choir can legally purchase copies.

I'm clear on getting paid for the performance of the work. I can submit to my PRO that it took place (though sometimes I choose not to, if they don't have a PRO relationship in place already, since I don't want to shut down small and occasional venues.)

But I'm not sure what is the correct way to go about selling copies. It's my underlying work, but it's my colleague's arrangement that caught their eye and that they want copies of to sing.

Can we sell copies jointly through MusicNotes or another source and split the (tiny) profit? Or should one or the other of us solely sell the sheet music and retain all the (tiny) profit?

Thank you for your insight!

-Elaine

Jonathan Minkoff

1/17/2017 09:43:42 pm

Elaine,

Assuming what you said above is accurate and that the arranger won't claim to actually be a co-composer of melody or lyrics, then you are QUEEN BEE. People are purchasing your song. You set whatever terms you want. The arranger has only the rights you grant him. If you haven't made an express or implied contract to the contrary, you can even use his arrangement without any payment split at all. The law typically treats arrangements of non-public domain songs as having no independent legal existence. Having said that, you may very well feel that the moral answer is more than a little different from the legal answer. Only you two know the "understanding" and expectations between you both. Good luck!

Christian

2/1/2017 09:24:41 pm

Hi so I downloaded an acapella off of youtube from somebody who is not the original composer. Since an acapella for the song isn't made by the original composer, can i overlay the acapella i found to an original song i have created and then sell that product on iTunes, spotify, etc.? Thanks

Jonathan Minkoff

2/2/2017 02:01:58 pm

Christian,

No, you cannot.

For our readers' benefit: a cappella is a style of music with no instruments, just vocals. However, "an" a cappella is a term used to describe the process of stripping away backing instrumentals in a recording and revealing only the lead vocal of that RECORDING. DJs love to make remixes where they use an a cappella of a famous lead performance and remix it with new beats and instrumentation.

This is the use and copying of a sound recording (the recorded voice) which is generally copyrighted, and its underlying composition (lyrics and melody) which is a separate copyright. You must have permission (which usually also means payment) to use any copyrighted sound recording that is not in the public domain. And use of the underlying composition also requires payment for a compulsory license.

Good luck!

Jonathan

Dene

2/16/2017 05:51:41 pm

I'm pretty disheartened at the moment and just having a vent - as an arranger, I try to go through the right channels for copyright permissions. Wanting to sing a version of a Prince song which I cannot find a stock arrangement for so am going through the regular channels to find out who is the publisher etc. This is now going to cost me over $500 when I will only make $150 from participation fees. Publisher says because I am earning income, the fee may be higher. WTF!!! Then I see other choirs sharing their videos on YouTube of this same song who are charging $$$$$$$$$ through the door without a copyright license (either print or mechanical) clearly in place and making thousands in profit - illegally. Meanwhile, publisher is scanning my website to see if I have licensed my past arrangements! I am the one approaching them so I can do the right thing and others are making thousands without even a red flag on their site - I cannot reconcile this. End of vent.

Jonathan Minkoff link

2/21/2017 09:34:46 am

I am very sympathetic. I do believe that changes are warranted in our system. But having said that, Prince is notorious for aggressively preventing any youtube videos of his music or live performances. On the other hand, no one can stop you from recording any of his songs so long as you pay the fees for compulsory license -generally 9.1 cents a copy. That part of copyright seems to work well. I do support a compulsory right to arrange sheet music as well. I think it would end the stranglehold of publishing companies and bring a steady stream of much needed income to songwriters and arrangers. But bottom line: I'm sorry for your frustrations. Watching others disobey the law is always disheartening.

Kolbe

4/2/2017 03:09:19 pm

Hi, if I'm trying to arrange a vocal song into a saxophone symphony, without changing anything about the song except the instruments (rhythms and notes stay the same), for public performance, not recording or selling of sheet music, will I need a permission from the composer?

Jonathan Minkoff link

4/5/2017 10:56:19 am

Read this article for my thoughts on that topic: http://www.acappella101.com/home/permission-to-arrange-for-live-performance

Good luck!

Jonathan

Olivia

4/2/2017 03:50:32 pm

Hi, I was just wondering about an arrangement I made for the school choir. The song in question is an arrangement of a cover of a pop song from YouTube - there was no sheet music available for this cover, and so I arranged it on Sibelius by ear and produced my own sheet music (the only difference from the cover itself is that I changed the key). The piece will be performed at a national choral competition (schools must have music copying licenses in order to compete). Thanks!

Jonathan Minkoff

4/5/2017 10:59:40 am

Olivia,

You don't actually ask a question in your post so I'm not sure what you want to know. But I suspect that you want to know whether or not your choir will be allowed to perform the song at the national choral competition. That's a "rules of that specific competition" question, not a "legal" question. As for whether it would be legal to perform your arrangement live, check out this article: http://www.acappella101.com/home/permission-to-arrange-for-live-performance

Good luck!

Jonathan

But What If

4/7/2017 11:04:57 pm

Can an arrangement of a pop song transform the source material so much that it can be considered its own independent entity? In other words, I have an a cappella arrangement of a pop song that, while it uses the lyrics of the song, transforms the structure and harmonies of the song such that it's more of a "remix" than a true traditional arrangement. Basically, most of the ideas are original material that I composed; it is simply based off of a few select elements of a copyrighted work, which I would think makes the arrangement transformative. Would something like this hold up in court?

Jonathan Minkoff

4/10/2017 11:22:43 am

Hey "But What If",

Without hearing the original and your new work, it's really impossible to tell. But generally turning an existing copyrighted song into a wildly different song is creative but NOT transformative, in the legal sense. The second song is considered a derivative work based on the first, and the original author has exclusive ownership of and control over whether derivative works are allowed or not. An example of a transformative use, by comparison, would be using a small portion of the original song lyrics in an article about lyric-writing. (The transformation here being song into article and snippet into whole). Counter-intuitively, when making g a sound recording, if your arrangement varies so wildly from the original as to be recognized as a distinct derivative work perhaps with a new character and melody, and not "just" an arrangement, then the compulsory provisions likely do not apply. So instead of just needing to make a payment, now you also need permission from the author. Thankfully, few composers seem interested in making an issue of this "fine line". They are usually happy to be paid and rarely investigate the exact nature of the arrangement choices. Though of course anything is possible! Good luck!

Nicole

8/17/2017 11:23:24 am

I became interested in arranging a piece for my school's percussion ensemble for use in festivals and other competitions recently, and from what I read it seems legal to do so. However, I'm still confused by "distribution". I want to write the piece on an online sheet music program and print copies for my classmates, but I don't quite understand what possible implications there could be and how to navigate them.

Jonathan Minkoff

9/4/2017 01:03:35 pm

Nicole,

If you were to "write the piece (copyrighted by someone else, I assume) on an online sheet music program and print copies for my classmates" who were using the sheet music solely to make a sound recording for which you paid the appropriate and timely fee (probably 9.1 cents per copy), then you would be 100% in the clear to do so and would not need permission, just proper payment.

If you are using the sheet music to prepare for a live performance in a place that has purchased a license for live performance of that piece (probably through a blanket license arrangement), you are on shakier ground, but I think you have the winning argument, as I describe in my article on that topic.

If the performance is public but *not* licensed then I think you are likely to lose the legal argument.

If you sell your arrangement or give it away to the public at large, I think you are also looking at a losing argument.

And by losing argument, I mean that you are likely infringing the exclusive rights of the original composer for which you could be sued. I hope that's helpful.

Another practical point to keep in mind: festivals often have their own rules about permitted arrangements. Check in advance to make sure that your festival actually allows arrangements made in this manner. Some festivals only allow licensed and published arrangements.

Good luck!

Samantha

11/21/2017 04:37:19 am

Hi Jonathan, I love this thread!

OK, so here's where it gets really complicated. Imagine I find a piano arrangement I really like of a public domain song. As I understand it, this arrangement is also copyright. Can I legally make an arrangement of the arrangement, say, by changing the instrumentation (to a string quartet for example), or would that be considered derivative? Many thanks for your thoughts on this!

Jonathan Minkoff

11/21/2017 10:18:22 am

Samantha,

Great question! The answer is a simple one: ONLY the NEW material provided by the arranger is protectable and therefore off-limits. Everything that was in the public domain song as well as all chords and everything else that is in the public domain is all free for you to use. So let's say the song was "Twinkle Twinkle". The melody and chords and all Mozart's variations are all yours to do with as you please. But assume that the new arrangement had a distinct original counter-melody that was created just for their arrangement. THAT single element would not be freely usable by you since the arrangement was copyrighted. I hope that's clear! Best of luck!

Samantha

11/21/2017 10:38:19 am

Thanks! It is clear that I would have to be sure what was considered 'original!' So a jazz version of 'Twinkle, Twinkle' might have some crazy chords or rhythmic element in I couldn't use? EEK!

Jonathan Minkoff

11/21/2017 11:45:12 am

Samantha,

Keep in mind that not everything CAN be copyrighted. Otherwise, you'd see notes and chords disappearing because someone else owned them! The issue for you will be, is the "thing" you want to use copyrighted at all? (This is why you can't get legal advice from a website, just a discussion of the law. An attorney would actually listen to the examples.) In general, it's fairly safe to be inspired by an arrangement of a public domain song when making your own slightly similar, but not identical arrangement. Use creativity as a shield. Avoid using any new, original melodies from the inspiring arrangement. But rhythms, chords and notes belong to the world. Again, good luck!

Samantha

11/21/2017 12:52:49 pm

That's the best advice ever, thank you so much x

Middle Schooler

5/5/2018 01:17:43 pm

Is it okay to make a public domain arrangement of a copyrighted song?

E.g. I make an arrangement on musescore (free for anyone to use) of Reverbrations by Brian Balmages. The original piece is for concert band, but I want to arrange it for wind quintet, and upload the sheet music on youtube. I do not want to perform it, just to share it with people on the internet.

Jonathan Minkoff

5/9/2018 01:18:53 pm

Middle Schooler,

Firstly, good for you for trying to do things the right way! That says a lot about what kind of person you are -especially for a middle schooler! You are already on course to make this world a better place!

Now to your question: you are using the phrase "public domain" in a way that may not be correct. To understand what the public domain is and whether a work is public domain, start here: http://www.acappella101.com/home/public-domain

When you arrange Reverbrations by Brian Balmages, it is next to impossible that this song would be in the public domain. He was born in 1975 which means that unless he posted some sort of waiver of his copyrights (via creative commons etc.) then he owns the rights to his music.

So given that, it seems as if you want to arrange a copyrighted song for the purpose of freely sharing the written arrangement on the internet. (There's nothing public domain about that.)

You may not do this without the composer's permission.

Only the composer and/or his publishers can authorize making an arrangement for the purpose of sharing it freely.

What you CAN do, is pay for a compulsory license to record your arrangement of that piece of music, and then share that recording (not the sheet music). To do so, you will have to pay the fee (usually 9.1 cents per copy) for each copy you make or share, whether you charge or you do not charge for the copy you make.

Alternatively, you could make a youtube video of your recorded arrangement. This could be accepted and monetized by the composer. However, this could also be blocked by the composer. And there is a degree to which even this commonly used tactic of posting on youtube is legally a grey area. But that's a discussion for another day.

I'm sure that's not the answer you were looking for, but it is the law in the US.

I hope that's helpful to you.

Good luck!

Jonathan

Pamela Stewart

8/12/2018 08:23:37 am

What about adapting a choral piece for solo voice? I have a personal letter from Samuel Barber stating that he had thought of arranging "The Coolin" for solo voice but had other projects in mind.

Jonathan Minkoff

8/13/2018 11:34:40 am

Great question, Pamela!

My answer assumes that the author Barber never wrote to you saying "I give you permission to arrange this piece for solo voice". It also assumes that Barber's work is entirely original and not itself an arrangement of a public domain work.

If all that is correct, then...

Typically such an adaptation would qualify as a derivative work and therefore require permission of the author (assuming the original work was NOT in the public domain.) But you COULD legally record such an adaptation without getting permission, so long as you timely paid the compulsory license fee.

Whether you could publicly perform the new arrangement live is a grey area over which there has been some major disagreement. And whether you could sell or share the newly written solo arrangement without permission is very likely a "no".

Now, here's a really interesting legal question: if say, you just wanted to perform the melody, exactly as written, and the accompaniment, exactly as written, but you wanted to leave out all the other sung harmonies, would that "omission" of harmony, without any other changes, constitute a new arrangement? I think it would, but reasonable people would probably differ!

I hope that helps!

Jonathan

Owen Korver

9/10/2018 04:53:12 pm

I am a 4th year high school student, and want to arrange a series of medleys for a brass quintet. (themes from John Williams, ABBA, etc.). If I state that the performance is not to be recorded, is it still under fair use since we aren't doing it for profit?

Jonathan Minkoff

9/11/2018 09:36:29 am

Oh boy. There's a whole bunch that needs to be unpacked here. 1) Medleys typically require permission as you are making a single new work from preexisting works; 2) What you choose to state is largely irrelevant compared to what you DO; 3) Doing something with no intention to profit is NOT a defense against copyright infringement; 4) Your best bet to arrange this legally is to get permission from at least one composer or publisher of each work used, but your second best bet is to make a licensed recording where you typically pay 9.1 cents for each song used per copy of the song made or distributed (again, I cannot stress enough that this is true whether you sell the recording or give it away). There are other ins and outs of this, legally that are too detailed to get into in a blog post, but that is the gist of situations like yours. I would strongly prefer a change in the law that says students can do just what you are intending to do. But that isn't the state of things now. If you want to learn more about Fair Use and what it allows, check out this link: http://www.acappella101.com/home/fair-use-using-others-works-without-permission-or-payment Good luck!

Owen

9/12/2018 07:13:19 pm

Alright, thank you! I'll take a look into it, and decide which option is best for me. This was very helpful!

Cristian

10/10/2018 08:41:48 am

Hi, I’m a young noob trying to better understand all this.

I was planning on arranging music by a Japanese composer for NON-PROFIT purposes and performance, and was wondering how the US copyright laws would affect that if at all. Would that just involve Japanese copyright law or would it also involve the US copyright law?

Thank you

Jonathan Minkoff

10/16/2018 10:27:50 am

Hi Cristian! Generally, in the US you can follow US laws about copyrighted works. Just treat the work as if it had been registered here. Also, as an aside, whether you make money or lose money on your project rarely affects whether you have infringed someone's copyright.

Hope that helps!

-Jonathan

David Aldred

10/11/2018 10:43:58 pm

Hey Jonathan -

Great information throughout this post - thank you for taking the time to keep it going and answer the various questions we all have. You do an outstanding job explaining things in clear, easy-to-understand language.

Speaking of questions, I've got one I'm not sure has been specifically addressed elsewhere. I'd like to record and distribute instrumental rock / funk versions of a variety of popular Christmas songs, none of which are in the public domain. My question is this: given that I'm replacing the vocals / lyrical content with an instrumental rendition of the melody (and not otherwise changing the melody except for stylistic embellishments characteristic of the style), does this effectively create a derivative work for which I'd need to obtain specific composer / publisher permission, or will a compulsory mechanical license cover me (pun intended)?

Thanks much,

David

Jonathan Minkoff

10/16/2018 10:29:49 am

David,

Thanks for your kind words! As two your question: Instrumental versions of songs should be treated the same as versions with the original lyrics; just pay the proper royalties and you should be fine.

Good luck!

Jonathan

Jonathan Minkoff

10/16/2018 10:31:02 am

*to

Lucja

3/20/2019 11:42:17 am

Where does busking fit in to this? I.E. when you are playing in a public place that probably does not have the rights for any music.
Is everyone who does that breaking the law?

Jonathan Minkoff

4/17/2019 07:48:07 am

Lucja,

In the US, performing PUBLICLY requires a license of every song. It's usually the venue that gets the license covered as a part of a blanket license. But it can also be the artist or producer who gets the license. That would seem to imply that most busking of non-original material, non-licensed material, or non-public domain material is in violation of the composers' public performance right. It is possible for the city or state to get licenses or for certain specific uses like in Congressional testimony or court testimony to be exempted from the need for licensing.

On the plus side, lawsuits don't typically target people who are essentially begging for scraps on the street. So the "blood from a rock" defense has probabilities of private enforcement working in your favor, even if legalities aren't.

I hope that helps!

Jonathan

Lucja

4/30/2019 03:32:44 am

Alright, thanks for the reply!

Maria link

4/16/2019 09:38:55 pm

Thanks for clearing up the musical arrangements jonathan!

Jonathan Minkoff

4/17/2019 07:49:03 am

You are very welcome, Maria!

Daniel Ruffing

7/2/2019 05:15:07 pm

Thank you for the detailed explanation in your initial post and all of your responses to comments.

This stuff is so freaking tricky to understand and do correctly. I have a bit of a scenario now.

My YouTube channel has seen a surge of subscribers since a few of my songs were featured by a popular channel, and I've been thinking of ways to expand that audience even more.

I came up with a mashup of a song from the musical "Hamilton" and Pachelbel's Canon in D. The song is for Flute, Piano, and Bass.

I totally get that Canon in D is public domain, but since it's mashed up with this song from Hamilton, I get a bit confused.

I typically will record every original composition I make, and I've never recorded a "cover" or "arrangement" like this on my channel. It would be a video recording of the instrumentalists playing the song, not like a professional audio recording.

I want to do this, post the song to my channel, and not really much more. But I have a strong sense this particular arrangement will be popular, especially in the "wedding" scene. I can imagine many people would request to buy the sheet music or even want me to professionally record it down the line.

I guess I'm still a bit confused about everything I'd need to do to be able to sell this sheet music online, if I even can. I get that I would need to obtain permission, but the issue is I haven't been able to find anything for this particular composer (Lin-Manuel Miranda) unless I'm extremely blind lol. And then I understand everything about receiving written permission, but how do you obtain that? Is that technically like an email exchange or is this something that should be physically written and mailed or something like that?

And how does all of this change if the song is a mashup AND an instrumental arrangement?

Thank you!

Sarah Jones

8/27/2019 06:48:43 am

Hi,

The publishing company of the piece I want to arrange is asking me to fill in a form stating the piece that I have arranged with all the details e.g catalogue number but I have arranged it by ear. If the form isn't filled in completely they don't send you a licence and they won't reply to any questions I have. I would like to sell it online and also perform it in public.

Thank you

Jonathan Minkoff

8/27/2019 09:32:40 am

Sarah,

This sounds like a request for specific legal advice about your situation, rather than just a general discussion of the law. That's unfortunately beyond the scope of this website. I do wish you luck in working it all out!

Jonathan Minkoff

Jim Waller link

11/7/2019 12:49:31 pm

I just completed production on my first big band jazz CD. 7 of the 14 cuts are my original compositions, the other 7 are Great American Songbook standards (five featuring a vocalist). I obtained mechanical licenses for all 7 and wrote all fourteen arrangements. My two questions are: (1) Can I legally perform my new arrangements with my big band in any venue that has the appropriate blanket licenses? (2) What copyright information should I include on the score and parts that will be on the bandstand when performing? Thank you in advance for your answer! I also have to tell you that after reading this blog, I believe you have disseminated some of the best information I've read about these kinds of copyright issues. I do have several other questions I want to ask that are important to my arranging/composing career and
if you're allowed to give a Texan legal advice when licenses in New York, I would happily pay for it. One last thing, I checked out a couple of your a cappella recordings, SPOT ON!

Jonathan Minkoff

11/8/2019 01:40:27 pm

Jim,

Congrats on your CD and thanks for the kind words.

Let's get to your questions:

(1) I would argue yes to this based on this article: http://www.acappella101.com/home/permission-to-arrange-for-live-performance but keep in mind that there is some litigation regarding this issue right now and there are some publishers and related entities that want the law to come out differently. Time will tell if this area gets a solid court case to back up the practice of the last century.

(2) AHA! This gets trickier. You created a score to make a recording for which you paid a license. There's no doubt that this is permitted. But the grey area starts right after that. What else can you use that written score for? Can you teach live performers from that score? Can you perform with written scores on stage? There's argument about this.

To be on the safe side, for copyrighted songs, I'd consider getting a license through note flight. If that was a no-go, I recommend performing the chart without any written sheet music or lyric sheets.

If that's also a total no-go, perform with sheet music that avoids the melody and lyrics and even the title of the original.

Weird advice right? The issue is too dense to discuss in a post like this, but it involves behavior that begins to encroach on the exclusive right to arrange, a right that publishers can get pretty litigious over. From their view, any written version of their song requires a negotiated license to arrange.

But didn't you get that with your recording license? Yes and no. You got a license to arrange for the purpose of making the recording. But your live performance is a different purpose. So that brings the boundaries of the use and the license into question.

Since there is a good amount of litigation in this area, I recommend being as safe as possible. It may turn out to be an overabundance of caution. But for right now, it's probably the best path.

Good luck!

Jonathan

The Legality of Arranging

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