Need help for a copyright infringement, somebody reuploaded my arrangment

• Aug 2, 2016 - 18:02

I have posted my arrangement of music from Captain America: Civil War, and I have found someone a month later take my arrangement and reupload it with minor differences. My original arrangement I consider transformative enough to be my work (it's not a straight transcription, but then again I don't know how copyright works), so would it be within my boundaries to report this guy for copyright infringement? Or would that cause trouble? When I have confronted the guy on why he uploaded it, he said he was bored and didn't really seem to give any sort of credence to my worries that I didn't think this was alright. I am credited within the actual scoresheet fortunately, but the guy makes no effort at all to point people towards that. I don't feel that he transformed my original arrangement enough to validate him uploading it. Can anyone help me out? Should I just let it be, or is there something I should do?

Here is my arrangement:
https://musescore.com/user/7754081/scores/2151891

Here is his reupload:
https://musescore.com/user/3649821/scores/2447036

Comments

• Aug 2, 2016 - 20:23

This music is not in the public domain, and what you have done is not within the rules of 'fair use' under any legal theory I have ever seen. Do you have permission from the copyright owner of the original music to publish an arrangement of his work? If you do not, that is an infringement of his copyright. You cannot absolve yourself of that by simply crediting the original composer on your arrangement; in fact, that's rather like stealing a car, giving it a new paint job, and then slapping on a bumper-sticker reading, "Stolen from [name of real owner]."

BTW, that film was co-produced by Marvel and Disney. Disney Corp. is well known to be extremely aggressive in enforcing its trademarks and copyrights even against individuals such as yourself. They have an entire legal department which does nothing but run searches looking for stuff like this.

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• Aug 2, 2016 - 22:20

That's good basic information for US musicians/arrangers/publishers, but it is not a legal opinion on the merits of any theory of fair use. It is simply a description of how to obtain the appropriate licences to use copyrighted material. What's unstated there is that if someone does NOT obtain the proper license before publishing, recording, or performing a new arrangment of a copyrighted work, he could find himself in a great deal of legal trouble.

The OP published a version of something Disney owns. As for whether he actually obtains any pecuniary return from that publication, Disney doesn't care, nor do they care how much in damages they might be awarded if it were to come to trial (or if they could collect them). They don't even care if they win a lawsuit. They can afford to lose and shrug it off because their real goal is to discourage IP theft at all levels, and they are extremely effective at doing that by bankrupting people who use their property without their permission. A large corporation such as Disney does not have to win damages to do that; it is actually easier to do so by stringing out the legal proceedings for years and in the process cost the defendant his entire net worth in legal fees and lost time from work to attend preliminary hearings and ABTs (Appearances Before Trial). It is generally accepted in the music industry that it is a good deal safer to stick your head in a lion's mouth while kicking him in the nether regions than it is to mess with Disney's legal department. At least with the lion, you have a 50-50 chance of him opening wider instead of clamping down when your toe connects.

The OP has been particularly careless here, in my view. If I were a lawyer working for Disney and I saw the scores and conversations on that user's page (wherein he accepts commissions to create arrangements of Disney-owned themes for other users), I would rub my hands together in glee, then download all his scores and screen-shot those conversations as a basis for an e-discovery proceeding against Google and MuseScore. The OP has his real name and his G-mail address posted on his scores and user page. Talk about pinning a "Kick me!" sign on one's own back....

Disclaimer: I am not a licensed attorney in any jurisdiction, but as a performer, composer, and publisher, I have a professional need to understand this area of law rather better than most. I have also been in and out of the music industry in a number of capacities since the early 1970s, and have seen what happens to people who don't do their homework before publishing. I'm sure the OP thought he was within his rights to do what he did--he'd have had to be incredibly stupid to do so if he didn't!--but, as the old dictum states: 'Ignorance of the law is no excuse.'

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• Aug 2, 2016 - 23:26

Steps to reproduce:

1. Go to Narnia*
2. Behave just badly enough that Aslan* shows up to chide you gently
3. Stick your head in his mouth when he opens it to touch your face with his tongue
4. Kick him where it counts
5. Lather, Rinse, Repeat n times [n>100]
6. Correlate the results in your longitudinal study and submit it to your faculty advisor
7. Obtain your doctorate and wave it proudly, especially in front of all your mother's friends. ;o)

----------------------------
* The Chronicles of Narnia®, Narnia® and all book titles, characters and locales original to The Chronicles of Narnia are trademarks of C.S. Lewis Pte. Ltd. Use without permission is strictly prohibited.
All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information address HarperCollins Children's Books, a division of HarperCollins Publishers, 10 East 53rd Street, New York, NY 10022.

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• Aug 4, 2016 - 14:37

Well explained Recorder485.
I think your comments are very useful and whereas they are not a legal interpretation of Copyright Law in any particular jurisdiction, I think that they are useful guidelines.

I think MuseScore is very remiss in this area, and putting a tag to report copyright infringement on the webpage (which just leads to more legal gobbledegook) ain't gonna save them in a legal wrangle.
The point is that some posters here are unaware that they cannot just make an arrangement of anyone's music without checking for permissions required first.
There should be a mechanism whereby experienced musicians or even amateur posters like me can alert both the poster and museScore of potential legal enforcement of others rights (for example if the composer is still alive).

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• Aug 4, 2016 - 23:33

Thanks. Of course, the only legal interpretation of any law that really counts is the one written by a judge. An individual who relies in good faith upon the opinion of his attorney could find his burden lessened in those cases where intent plays a part in the determination, but that is rarely the case in IP theft. The 'It just crawled into my pocket, honest!' defense just doesn't cut it in most cases.

The biggest misconception today seems to be that if you don't make money by publishing your version of someone else's copyrighted work, that automatically makes it okay under the 'fair use' clause. This is not true. It might be adjudged 'fair use' under certain limited and specific circumstances, but it is much more likely to be found as indefensible theft of intellectual property. While fair-use clauses and their interpretation and application vary widely from one jurisdiction to another--and even from one judge to another!--unauthorised publication of substantial and recognisable portions of a copyrighted work is generally looked upon as outside the fair use rules, and monetary or other considerations (or lack thereof) are not in and of themselves determining elements.

It's important for people to understand what constitutes 'publication,' too, and many don't. The simple act of giving one copy of something to a second party is deemed to be publication. So is the act of uploading a digital file to a publicly-accessible webpage, or hanging a copy of it on a wall in a public place. But making a scan, photo-copy, or back-up file strictly for your own use is not publication; nor is uploading a file to a webpage that is not open to anyone but you. Publication is the act of distributing the material (or simply making it available) to other people, no matter how many or few they may be, by any method whatsoever.

A couple of examples of publication that might have a chance of passing as 'fair use'--depending on one's jurisdiction (and upon which side of the bed the judge got up that morning): (1) making a new arrangement of a copyrighted work as a school assignment (for orchestration class, for instance); (2) making an arrangment of a copyrighted work to play at home with your friends, or to play at school in orchestra or band class. In cases such as these courts have been known to decide that the potential loss to the legitimate copyright holder is too small to warrant awarding him damages (due to the closed nature of the distribution of the offending work), and/or that the goal of protecting freedom of education is sufficiently important to society as a whole that it overrides the individual copyright holder's pecuniary interest in the specific case.

BUT--and it's a very big BUT--if in either of these hypothetical cases the arranger were also to upload the score and parts of his version to a public website--or if he posted a MuseScore or YouTube 'secret link' to them on his FB page ('Hey, everybody, check out the cool arrangement of "The Impossible Dream" that I made for our school orchestra to play at graduation!!')--that would pretty much take it right outside of fair use territory. More people have gone down in legal flames as a result of something 'cool' they posted on Facebook (or Linked-In or whatever) than any other single faux pas that I can think of. Once you post something on a public website, it passes beyond your control and you can never get it back. Courts recognise this in determining if your actions have damaged the complainant even if you personally have not profited from it.

Website operators such as MuseScore who do not originate or post content are neither the publisher nor the creator of the infringing work, but as owners of a public site they are generally regarded as having a responsibility to use reasonable means to ensure that their members are not breaking the law. (The law on 'sharing' sites is highly compex and goes back to the late 90s; the first major cases revolved around Napster.) There is a practical limit to how much control these websites actually have over their members (one or two admins/mods versus hundreds of thousands of users), but since users are obliged to agree to the site's EULA before being granted site privileges, and since virtually all EULAs specifically state that users may not upload material to which they do not have rights, site operators can generally use this to claim that they have exercised due diligence.

That granted, the most a site operator will usually be ordered to do is to take down the offending material and furnish the court with all the information in its databases about the identity of the offending user, including his IP address and ISP, all associated e-mail addresses, and documentation related to the credit card or other method he used to pay for his account (if applicable). A site would have had to actively and knowingly collaborated in unauthorised distribution of copyrighted material before a court would be likely to order damages against it, and here is where 'intent' comes into play. But again, some jurisdictions are more lenient and others more strict, and the big players such as Google the major ISPs have lots of lawyers, too. It's never a clear-cut thing.

[Note: This post was edited to clarify certain points. And I re-iterate: I am not a licensed attorney in any jurisdiction. No one should act based upon the opinions I have offered here. If you are in doubt as to the legitimacy of what you are doing or intend to do, you should consult a licensed legal professional in your own jurisdiction.]

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• Aug 11, 2016 - 23:33

Hey guys thanks for the comments. I think I am looking for a simpler answer though. I am aware that I do not have copyright for this, even if it is an arrangement, but is there something that Musescore can do to stop people literally taking one person's upload and uploading it themselves? That is what happened to me, where as I can't report copyright infringement that is the only option I saw that looked close to something I can do about this. Can I appeal to musescore support directly or should I just let it go? There has got to be some policy Musescore has in place to combat this problem.

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