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Who Owns The Arrangement?

2/2/2012

39 Comments

 
By Jonathan Minkoff ©2009

Sarah’s been in the New York University Women’s College Bobbletones since her freshman year. She arranged every single one of the songs for 
the All-Michael-Jackson A cappella Tribute Album. They’re even thinking about inviting MJ and his publishers to their big concert and surprising them with the arrangements. But just as the group is about to go into the studio, Sarah has a huge fight with Jessika, the musical director.

“That solo on “P.Y.T.” was supposed to be mine, Jessika!”

“It’s a great arrangement, Sarah, but you already have two solos, and besides, Lakisha just sounded better on the upper notes.”

“Oh she did, did she? That’s crap! Go blow my “pitch-pipe”, Jessika! You guys think Lakisha’s so great? Then go do her arrangements on the MJ Tribute CD! Oh, that’s right, Lakisha doesn’t do any arrangements. Well, that’s going to be rough for the Bobbletones because I’m leaving and I’m taking the arrangements with me!”

“You can’t do that, Sarah! We already learned the arrangements! We just paid the royalty payments to the Harry Fox Agency! The concert is next week, the recording session is today and I’m sending the “Surprise!-We-Arranged-Your-Songs!” invitations out to MJ and his publishers tomorrow!”

“I don’t care! They’re my arrangements!”

Far fetched? Not really. Membership changes in a cappella groups are common  and those changes don’t always go smoothly. When someone stakes a claim it’s important to know whether they’re backed up by law or just a lot of hot air. 

So which is it? Can Sarah take her arrangements and go? Does she have the group by the ….uh… neck? 

Forget about whether it’s right or moral to do this at the last minute. Forget about the wasted efforts of her fellow singers. Those are debatable questions and the answers are subjective. 

The focus of this article is on legality: Does Sarah have the legal right to stop the Bobbletones from performing her arrangements of the MJ tribute songs? The answer may surprise you.

The key to solving this dilemma is the fact that the Bobbletones are “surprising” Mr. Jackson and his publishers. We don’t actually care whether MJ and his publishers are actually surprised; what we do care about is that neither Sarah nor the Bobbletones asked for permission to make these arrangements. Why is this important?

Arrangements are what the Copyright Act calls derivative works. Making derivative works is a right exclusively granted to the songwriter under copyright law. The arranger can claim a copyright only when the songwriter has granted that privilege to the arranger. But that’s not the case with Sarah. Like most a cappella arrangers, she heard the songs, liked the songs and put her heart and soul into arranging the songs. That's not enough to give Sarah ownership.

While it is legal for Sarah to arrange songs for a recording when the group pays the proper royalties for the songs, neither Sarah nor the Bobbletones actually own the arrangements of those songs. 

Not only can Sarah not stop the Bobbletones from using her arrangements, she also cannot stop each and every a cappella group in the country from making their own Michael Jackson Tribute CDs using her arrangements. 

And they don’t even have to ask permission or pay Sarah a penny.

Let’s change the facts a little. The Michael Jackson Tribute CD? Forget it. It’s gone. Instead it’s “Mozart’s Hottest Jams, Yo!”, a collection of Mozart’s most well-known pieces arranged in a hip-hop, funky new style. Again, Sarah has done all the arrangements. And again she storms out and threatens to take the arrangements with her. Can she do it this time? 

Yes! Sarah owns her arrangements of songs which are in the public domain. All Mozart’s works are in the public domain. The Bobbletones can still do a funky, modern, hip-hop version of the very same songs, but they can’t use Sarah’s exact arrangements. This time, Sarah owns a copyright in them. She doesn’t own the idea of doing Mozart in a modern way. But she owns her arrangements.

Let’s change the facts one more time before we call it a day. Forget the MJ, forget the Mozart. This time, Sarah wrote, not just the arrangements, but the songs themselves. She wrote the music and the lyrics and she even released the songs as an a cappella solo CD last summer to rave reviews. 

Now, just as before, she’s storming out and threatening to take the songs and her arrangements and walk. Can she stop the Bobbletones from recording her songs? 

No! Sarah released the songs on her own one-woman a cappella CD last summer. In a very real sense, those songs have been set free. So long as the Bobbletones pay Sarah the statutory royalties –the same royalties that Mr. Jackson was entitled to for the use of his songs- then they do not need Sarah’s permission. 

As you can see, seemingly small details often make all the difference in legal outcomes. For instance, do we get the same results in international waters? What if Sarah translated Mozart’s lyrics into Spanish? What if she added her own lyrics to Mozart’s melodies? What if she recorded, but didn’t release the original songs she wrote? (If you really care to examine these points in detail, drop me an email. But for now the answers are: 1) No. 2) She owns a copyright in them. 3)Same as #2. 4) She can prevent anyone from recording her music because she hasn't released the songs and she has the right to be the first. By the way, if I knew how to print these answers upside down, like on those kid menus with puzzles, I would do it.)

We use our intuition and our sense of fairness and morality to guide our actions. These powerful tools usually allow us to reason fair solutions, often based on “Things-I-Learned-In-Kindergarten” principles (don’t steal, be nice to others, clean up after yourself, etc.). 

But life and the law are nonetheless filled with unexpected departures from this path. There are times when commonsense is curtly rejected like a pimply–faced geek going for the grab at the Jr. Prom, and intuition is hit over the head with a frying pan like a … uh cartoon character who is … hit over the head with a frying pan. 

The harsh truth is that one’s intuition regarding copyright law tends to be severely hampered if one has never actually read the Copyright Act. This is often a source of great frustration for laypeople.

(“Laypeople” is the name lawyers use to describe non-lawyers. The derivation has nothing to do with actually “laying” anything (egg or otherwise), but the term simply begs for some good cracks about being “screwed” by lawyers, so feel free to insert your own oh-so-hysterically funny joke here. Ha. I’ll go cry myself to sleep now.)

Now you're in the know. You're armed with more than just a gut instinct. And you can politely tell Sarah that though you hope she reconsiders, you're going to record her MJ arrangements anyway.

Important legal disclaimer: Nothing in this article is legal advice. It's merely a general discussion of the law, and sometimes it’s just me rambling on. Allow me to specify: if you have a specific question or situation requiring legal counsel, you need to speak to a specific lawyer personally who will ask you specific questions about your specific situation which will allow him to do specific research in order to give you specific advice. 
39 Comments
Devin Roth link
12/25/2012 04:51:01 pm

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

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

Reply
Jonathan Minkoff link
12/27/2012 01:49:06 am

Devin,

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

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

Reply
Kay Leach
1/7/2013 11:26:19 am

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

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

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

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

Reply
Jonathan Minkoff link
1/10/2013 01:01:49 am

Kay,

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

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

Reply
Patrick
2/19/2013 12:31:14 am

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

Reply
Jonathan Minkoff link
2/19/2013 10:27:17 am

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

Reply
Bridget
5/19/2013 11:28:23 am

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

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

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

Reply
Jonathan Minkoff link
5/22/2013 02:54:14 pm

Bridget,

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

Reply
Jonathan Minkoff link
5/22/2013 03:35:41 pm

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

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

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

Jessica
8/23/2013 12:35:51 pm

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

Reply
Jonathan Minkoff link
8/26/2013 07:58:45 am

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

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

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

Reply
Nathan
10/8/2013 03:55:37 pm

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

Reply
Jonathan Minkoff link
10/8/2013 11:58:55 pm

Nathan,

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

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

I hope that's helpful to you!

Jonathan

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david
1/13/2014 03:21:56 pm

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

Reply
Jonathan Minkoff link
1/14/2014 12:51:50 am

David,

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

Reply
Betsy
4/14/2014 11:09:35 pm

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

Reply
Jonathan Minkoff link
4/15/2014 01:07:08 am

Betsy,

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

Reply
tom torriglia link
5/4/2014 03:53:21 pm

Hi
I created an arrangement of a song in the public domain and recorded it with my band. There are many versions of this song. My arrangement is similar to another arrangement because I liked that other arrangement. If my arrangement is similar to someone else's, do I need permission to create and copyright my arrangement?

Thanks, Tom

Reply
Jonathan Minkoff link
5/5/2014 03:09:34 am

Tom,

If your arrangement of a public domain song is substantially similar to a copyrighted arrangement you had access to, and the similarities are due to common elements that are not in the original song, but just the arrangements themselves, then you may need permission from that arranger to get your own copyright on your arrangement.

Jonathan

Reply
Joseph
1/26/2015 08:33:30 am

Hi Jonathan!

I am in a situation where I was part of an a cappella group with a friend of mine who had written and fully owned the rights to an original song that she wanted to cover with our group. She gave us permission to arrange, perform and record the song, and the arrangement was subsequently done by her, myself, and a third friend of ours in the group. The three of us later left that a cappella group and shortly thereafter started a new group with other members. We brought the arrangement of the song with us to the new group and are now planning on learning, performing and possibly recording it. My question is: who owns the right to this particular arrangement, if anyone? Is there any legal reason our new group could be barred from performing the arrangement by the old group, even though all of the arrangers and the songwriter herself are now in the new one? Conversely, can we prevent the old group from using that arrangement (we aren't considering that, but I was curious)? Neither the original song nor the arrangement has been released by anyone as of yet.

Thanks for the great article and your help!
- Joseph

Reply
Jonathan Minkoff link
1/26/2015 12:36:00 pm

Joseph,

Arrangers require the permission of authors to ever own copyright in their arrangements. But anyone may arrange a work without permission for the purpose of making a compulsory recording. However, the author also has the right to publish first. And until that first publishing, no one may use the compulsory license at all. OK. how does this play out? Here's how: the arrangement rights basically collapse into the author's rights. Assuming your friend is the sole author of the lyrics and melody, and that she has not published this work yet, then she possesses all the rights. She can exercise complete control over (i.e. deny or authorize) any live performance, or recording until she does publish. After she publishes, she still retains all live performance rights, but anyone can record the work so long as they pay her the statutory fees. And they can use the arrangement embodying that work, or their own arrangement, freely without a separate fee. I hope that's helpful. Good luck!

Reply
Elle
6/12/2015 12:39:53 am

Hi Jonathan,
I have a transcription of an arrangement of a public domain piece that was written/copyrighted by another group. My group wants to sing it in a concert in which no tickets will be sold but there will be suggested donation.

What do I need to do to make sure everything is legal?
Thank you!

Reply
Jonathan Minkoff
6/12/2015 05:04:09 am

Technically, the arrangement should be treated as a (thinly) copyrighted original work. So you need permission to sing that exact arrangement of a public domain song, even though you don't need permission to sing your own arrangement of the same song. Interestingly, that permission is usually demanded not of the group, but of the venue you perform in. The way this happens is that venues pay ASCAP, BMI, SONY etc for blanket licenses to perform all the songs in their catalogs. So *if* this group is a member of the above named PROs *and* your venue has a blanket license with that PRO, then you are already covered. Wouldn't that be nice! What happens if the group isn't a member? Well, typically nothing happens to the group. Most groups just go ahead and perform what they want and small, unaffiliated songwriter/arranger/copyright holders just ignore it or don't know about it. Even when they do know, it's typically the venue that is held responsible for any payment. But, it is always possible that the group could be pursued. However, this is unlikely based on my experience. I hope that's helpful, even if a little convoluted.

Reply
Me link
8/12/2015 03:41:34 am

The "lay' part of layperson comes from leity, which is some kind of Greek or Roman word.

Reply
Juliette
12/13/2015 07:20:27 am

Hi Jonathan,

I recently wrote the lyrics and melody to an original instrumental track a producer sent me. I did a vocal arrangement of my original lyric/melody. He then asked me to send him my original audio files, which I did. Now - he has used my arrangement with an independent artist, wants 50% for his track, has received his producer fee, and is claiming that my arrangement only constitutes as writing, which he believes I only deserve 25% (I wrote the lyric and melody with my friend). My questions are:

Do I have the write to be compensated for him using my vocal arrangement? Or is it just considered writing?

Can he use my vocal arrangement if I don't want him too?

Reply
Jonathan Minkoff link
12/13/2015 08:33:11 am

Juliette,

This sounds like you should speak with an attorney well-versed in copyright law in your jurisdiction. It's more than can be addressed by a blog post.

In general, the composer of the lyrics and melody owns the song completely. As the copyright holder she would be able to control any use of the lyrics or melody. But the fact that here you composed that "to" an existing track provided by a producer may make him a co-writer. Part of the analysis in cases like this revolves around control: who made the final decisions? Who paid for studio time? Who directed activities?

The answer to that question determines the outcome in many ways.

If there is a written agreement between you, the court may give that some deference.

There is no way to get to the bottom of this without really analyzing your communications, agreements, behaviors and the law of your jurisdiction. All things we can't do here. You need an attorney.

Your post should act as a reminder for musicians to put their understandings in writing and also to do their best to control their creative materials. Stopping someone from using your materials may one day require that you hire an attorney. That can be expensive. It's much less expensive to have not sent the materials in the first place or at least not to send them without a written agreement. That isn't always possible, but it is good practice.

I hope this is of some help to you. Best of luck.

Reply
Tuck
7/31/2016 06:06:13 am

Would you please provide a clarification? In the body of this section your example stated that "[if] Sarah wrote, not just the arrangements, but the songs themselves... Can she stop the Bobbletones from recording her songs? No! Sarah released the songs on her own one-woman a cappella CD last summer. In a very real sense, those songs have been set free. So long as the Bobbletones pay Sarah the statutory royalties... then they do not need Sarah’s permission."

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

These statements seem contradictory. What am I missing? Can a composer stop someone from recording his/her music?

On another note…

Years ago my school received permission to record and sell an arrangement of a song I wrote. I now want to publish and sell copies of the arrangement (assuming permission is granted), with the intent of donating all arranging royalties to a nonprofit to support music scholarships.

While I don't mind making the donation, I do not want to incur any expenses in the process such as publishing costs or income tax responsibilities. As I am not even familiar with how the royalties are paid or who is responsible for their distribution, I don't even know if this is possible. While I'm sure a detailed answer would be too convoluted for this forum, would you please provide your best "not my lawyer" answer as to whether this has ever been done before, or is even reasonably feasible? If so, do you have any suggestions on how I might sweettalk the copyright owners and the publishers into the best deal possible to promote this goodwill gesture?

Thank you for a tremendously informative website.

Reply
Jonathan Minkoff
8/5/2016 06:53:19 pm

Tuck,

I see where you are getting confused: pperformance vs recording. The composer has the exclusive right to control performances, but not recordings when the compulsory license is used.

So once "Sarah" has published her songs, anyone can record them so long as they pay her the compulsory licensing fee.

By contrast, if Sarah is not a member of a performing rights organization like BMI or ASCAP, then she still retains her exclusive right to refuse to allow public performances of her songs.

I hope that helps.

Now, regarding your arrangement...

Could you be as specific as possible about explaining this sentence:

"my school received permission to record and sell an arrangement of a song I wrote".

It's not clear to me exactly who wrote what and who granted whom permission to do what.

And finally, thanks for the kind words!

Jonathan

Reply
Tuck
8/11/2016 01:13:38 pm

Thank you for the clarification, and I'm sorry for the subsequent confusion.

I wrote an arrangement of a copyrighted song (1926) that my school was granted permission to record for sale (compulsory recording?). Forty years later I am considering having the arrangement (not the recording) published and sold (if permission is granted) with the intent of any arranging royalties being donated to a non-profit. Is this possible? Can the royalties go directly to the charity without going through me? My confusion is in part due to not knowing how arranging royalties are paid or who is responsible for paying them.

Thank you in advance for your time,

Tuck

Tuck
8/11/2016 01:13:50 pm

Thank you for the clarification, and I'm sorry for the subsequent confusion.

I wrote an arrangement of a copyrighted song (1926) that my school was granted permission to record for sale (compulsory recording?). Forty years later I am considering having the arrangement (not the recording) published and sold (if permission is granted) with the intent of any arranging royalties being donated to a non-profit. Is this possible? Can the royalties go directly to the charity without going through me? My confusion is in part due to not knowing how arranging royalties are paid or who is responsible for paying them.

Thank you in advance for your time,

Tuck

Tuck
8/11/2016 01:14:08 pm

Thank you for the clarification, and I'm sorry for the subsequent confusion.

I wrote an arrangement of a copyrighted song (1926) that my school was granted permission to record for sale (compulsory recording?). Forty years later I am considering having the arrangement (not the recording) published and sold (if permission is granted) with the intent of any arranging royalties being donated to a non-profit. Is this possible? Can the royalties go directly to the charity without going through me? My confusion is in part due to not knowing how arranging royalties are paid or who is responsible for paying them.

Thank you in advance for your time,

Tuck

Tuck
8/11/2016 01:17:46 pm

Sorry for the duplicate postings. I kept getting error messages.

Reply
Jonathan Minkoff
8/14/2016 01:30:46 pm

Tuck,

On re-reading your post, you appear to have a tax question, not a copyright question. You want to know whether you can assign royalty payments to a tax exempt entity and implied in the question is a desired outcome regarding taxation. Consult your tax advisor for the best way to accomplish your goals. Good luck!

Jonathan

Reply
Tuck
8/14/2016 07:40:35 pm

Thank you again for your assistance and a great website!

Dom
1/24/2017 10:52:08 am

Hi,

I recently produced a track - (my own composition and I did both composing and programming). I hired a vocal producer (Mr.X) to do vocal arrangement (Background vocals/Harmony). This includes the vocal producer singing both my vocal arrangement as well as the vocal pieces Mr.X wrote himself. I paid Mr.X for doing the vocal arrangement as well as singing the track. After mixing and mastering the track, Mr.X came to me and asked how I want to split the writers share.

Does Mr.X have the right to ask for a share in terms of royalty? Mr.X did not bring this up when hired to do the arrangement. Do i need to share my song revenue with Mr.X? Can I also say that I cannot pay the royalty until I recoup my investment (money I spent on the song)?

Reply
Jonathan Minkoff link
1/24/2017 07:44:12 pm

Dom,

Your situation is EXACTLY why getting attorneys involved and executing written contracts in advance make for wise investments.

In the US...

IF, Mr. X did an arrangement only (creating neither melody nor lyrics) then he is entitled to NOTHING in terms of a writer's share. If he is a CO-WRITER of Lyrics or Melody then he is entitled to a share, possibly even half or more depending on his contribution. It is especially "dangerous" that Mr X is involved with vocals, as courts will closely examine whether what YOU call backgrounds are in fact backgrounds and not, say, an integral counter melody or even a lead.

A lot may turn on this phrase "the vocal pieces Mr.X wrote himself." If you meant ARRANGED, then Mr. X is not a writer. If you meant WROTE, then he may be.

I also strongly suggest you familiarize yourself with the work-for-hire doctrine.

I suggest you consider freezing this project until your attorneys have a written agreement with every single person who contributed anything to the track.

If you want to buy out everyone for their contributions, the time to do that is now (really before you began, but alas, no time machine). Otherwise you take risks that people will later claim to be owed for their contributions. And whether they are successful may depend on what a jury or judge believes the facts were at the time. Your version of events is not guaranteed to prevail.

Good luck!



Reply
Jim link
7/31/2019 09:09:44 am

I just found this site and thank you for this. It prompted a couple of questions.

1. Sarah sings the melody and lyrics of the original as written in Sean's arrangement. Jessika and Lane sing a 'minified' version of the lyrics for rhythmic effect, dropping articles, adjectives, adverbs, etc. Sean sings a bass line on syllables.

If you took away Sarah and Sean and listened only to Jessika and Lane, you would be able to determine the song. Do those lyric omissions take it out of the realm of Cover song to Derivative work and then should have requested the license for the arrangement, in addition to securing performance rights?

If so, does that make the arrangement open to copyright?

2. Lakisha’s arrangement is phenomenal. She updated it by changing from binary to non-binary pronouns. Does that make it a Derivative Work instead of a Cover Song?

Reply
Jonathan Minkoff
7/31/2019 10:30:34 am

Really fascinating hypothetical!

"Do lyric omissions take it out of the realm of Cover song to Derivative work - and then should [she] have requested the license for the arrangement, in addition to securing performance rights?"

The safe answer here is yes. As lyrics begin to deviate in noticeable, material, impactful ways, composers have ever stronger arguments that the change constitutes a derivative work for which the new arranger needs PERMISSION from the composer.

"If so, does that make the arrangement open to copyright?"

The arrangement is likely COPYRIGHTABLE but only with the permission of the Composer.

"2. Lakisha’s arrangement is phenomenal. She updated it by changing from binary to non-binary pronouns. Does that make it a Derivative Work instead of a Cover Song?"

Great question! I could see this being argued either way and I could see a court deciding this either way. Were I a judge (and I am not), I personally would allow blanket pronoun changes in almost all songs and rule them as de minimis arrangement choices that would be permitted in recordings or performance without separate rights negotiations. Compare that with translating the lyrics to another language, or to adding completely new lyrics, both of which constitute derivative works.

This was a fun one!

Jonathan

Reply
Iddo
4/1/2022 09:56:32 am

Hi Jonathan,
We have a dispute with our arranger and I would appreciate your advice.
We are a choir based in the UK and have commissioned (for pay) a copyrighted song from an arranger in the USA.
The finished score was handed over, there is no formal contract that either confer or exclude usage of the score by either parties.
To process the custom arrangement licence that we need we use a website called SheetMusicPlus.com - where if a song appears in their catalogue you can upload your score to the website - and then to pay for the licence ou buy back he required copies of your arrangement. All sales give you whoever published the score 10% commission, so when we buy say 50 copies we get a 10% back as commission for our own sale of the copies to ourselves.
That is how we get the custom arrangement licence.

However one of our arranger has been publishing all his work - whether commissioned by us or not - under his name - and was upset to see that we published the score which we commissioned from him on our name.

The question is: Can we publish music we commissioned?
Neither of us own it - as the real owners are the rights owners - however by putting the song on the catalogue of the website they are agree to give the licences as longas you pay the fee -which we are happy to pay.

But who is legally entitled to publish the work? The arranger or the choir that commissioned the work and paid for that score?

If that arranger is solely entitled it would mean that he would benefit from our commission 3 times: From the fee of the commission, from the copies that we have to purchase from the website of the score that we commissioned (to get the licence - and the arranger would get 10% commission), AND from commission of selling that arrangement to 3rd parties (other choirs).

What is our legal position with respect of curtailing his use of the music we commissioned? And the flip question: what legal position does he have in relation to the work he arranged, if he got paid to create the score for us - in a lack of any contract that limits his use - and vice versa - require us to purchase the licence through him posting the work online and getting 10% commission in addition to the arrangers fee that we paid him for the score?

I hope the question is clear, but I will reiterate the basic premise:

1. When commissioning music - can the commissioning body publish the work which they paid for and benefit from selling it to 3rd parties as well as getting a discount of 10% on the custom arrangement licence?
And on the other hand:
2. Can the arranger who was paid to produce a custom arrangement for a specific choir - go ahead and offer it to 3rd parties, benefitting from the commission?
Does that mean that the commissioning body has no standing in publishing the work they commissioned vis-a-vis the arranger?

I hope this made sense - and thank you for your advice!

Reply



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