By Jonathan Minkoff ©2009
WHERE DOES THE RIGHT TO MAKE MUSICAL ARRANGEMENTS COME FROM?
The constitution of the United States gives
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 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.
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.
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.