Arranging someone else's music Legal?

• Aug 4, 2014 - 21:49

Hi all
I have written an arrangement of "Round Midnight" (using MuseScore obviously!) and it's first live performance can be found here:

//www.youtube.com/watch?v=9uHSiu83S8U

What I'm unclear about is the legality of doing so. I haven't asked permission of the copyright holders. I'm guessing that as long as I don't; 1) sell the arrangement or 2) record it for resale then I will be ok. Am I correct?

And whilst on the subject, how do you get permission to record/arrange others' music Has anyone who uses MuseScore done so?

Cheers

Onscuba

ps note to MarcS - enjoyed your arrangement of Rhapsody in Blue

Comments

• Aug 4, 2014 - 22:51

Copyright law varies from country to country.

If you are in the UK then permission can be sought from PRS/MCPS. If you are not in the UK then I can't really help.

Jojo is absolutely right in that arrangement of an existing song without permission is a breach of copyright in most countrys. You will have to find out the details about your country's particular law as there are various fair use clauses in some countries which may apply.

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• Aug 4, 2014 - 23:32

MCPS/PRS are the people to go to - I used to arrange backing tracks for a living at one time, and used to get my licences from them.

You can reach them here: http://www.prsformusic.com/Pages/default.aspx

These guys are the recognised licensing people for the UK and will make sure any royalties necessary will go to composers and lyricists worldwide.

I was arranging stuff as varied as Count Basie to the Beatles - they handle it all.

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• Aug 1, 2017 - 22:53

> Copyright law varies from country to country.

Exactly.

>>As far as I know publishing in any form violates copyright, not only commercial use

>Jojo is absolutely right in that arrangement of an existing song without permission is a breach of copyright in most countrys.

Note that’s not what he said.

As for Germany, TTBOMK (IANAL) it’s legal to only make derivations for yourself alone without a permit from the holder of the exploitation rights (copyright holder or their employer or someone they contracted it to), not to publish them. Not too sure about the ability to record or perform it, I mostly do copyright/licencing stuff related to software (which counts as literary work) and can transfer that somewhat to sheet music, but have no experience with the performancing part.

I am aware that the situation in, for example, the USA is completely different, so you need advice for your specific legislation (assuming you’re in a Berne convention signatory state and a citizen thereof; if not, it gets even more complicated).

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• Aug 5, 2014 - 00:08

Thanks for the comment on Rhapsody!

As mentioned, laws do vary by country, but there are various international treaties that keep a lot of things the same. My experience is in the US, but a lot of this will apply to other countries as well.

Copyright law does not care if you *create* an arrangement. It cares what you *do* with that arrangement.

*Live performance* of your arrangement is cool anywhere live performance of the original is cool. That is, any place that pays regular BMI/ASCAP/SESAC fees as appropriate (similar organizations exist in other countries). When performing at a venu that does *not* pay these fees, it's supposedly up to you to negotiate fees with the copyright holders of the songs you perform - realistically, except for major advertised concerts, I suspect no one does this.

Publishing a *recording* of your arrangement is cool if you have purchased a license to record the song in the first place. The license to record includes the right to arrange it appropriately - that's written into the law. Recording licenses (called "mechanical" licenses, a holdover from vinyl days) are obtained through the Harry Fox Agency for most composers, or occasionally directly through the copyright holder, but the rate is set by law.

Publishing *sheet music* requires explicit permission, and they can charge whatever they want for this right. Whether you *sell* the arrangement or or give it away for free *does not matter*! You cannot publish an arrangement - including making it publicly available for free on musescore.com - without permission. In fact, making it free is potentially *worse* than selling it int he eyes of the law, because if you sell it, you are at least competing fairly with the other legal arrangements, so people wouldn't necessarily be likely to choose your over the legal ones. Whereas by giving it away for free, you're reducing the market for the other arrangements.

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• Aug 5, 2014 - 01:03

Not sure about a couple of your points, Marc. In US copyright law, if your arrangement is more substantially different from the original than a typical cover version, then you have to get permission to do a live performance. And while the fair use provisions are generally thought to allow you to make a backup copy, and to format shift (pdf to html, or mp3 to ogg), I think that they don't allow you to make arrangements without permission. I did read somewhere that thinking of a different arrangement, and committing it to memory, is a violation! I'm not sure if that last one was a reductio ad absurdum, or technically true. As usual, the legal stuff here gets complicated. I did a quick search and found this link:

http://info.legalzoom.com/song-arrangements-copyrighted-23709.html

Not sure if it's authoritative, but it is consistent with what I recall. Of course, this is just an exercise in discussing what the law seems to be, not what I think you ought to do...

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• Aug 5, 2014 - 01:48

I admit I'm not a lawyer, but I am skeptical. Where is your source for the claim that "substantially different" arrangements require explicit permission for live performance? Perhaps you are thinking of the "Cover Songs" section in the link you posted, but if you read that carefully, you'll see it's talking about *recordings*, not live performance - mention of the "compulsory license fee" makes that clear, even if it is not stated explicitly (there is no such thing as a compulsory license for live performance). So I'd be careful about taking that particular source too literally.

And while it's true that the text of the law grants copyright holders "exclusive rights" to "prepare derivative works", I am pretty sure no court has ever interpreted that so narrowly as to prevent one from creating an arrangement for one's own educational purposes. The bulk of copyright law deals with *publication* of work, and law is set as much by court precedent ("case law") as with literal reading of the law. Fair use as defined by case law is pretty broad when it comes to unpublished works. The most important factor is generally held to be the extent to which the market for original work is reduced, and unpublished derivative works reduce it by at most 1. I guess without a specific court precedent to point to, we could speculate all day long, but I *really* doubt any court would rule against this. Still, I'll rephrase: it's *probably* OK, and I think one could safely assume it is until a court rules otherwise, which I doubt will ever happen.

Anyhow, I *definitely* would not be putting any faith in sources who say that "thinking of a different arrangement, and committing it to memory, is a violation". That's clearly not the case.

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• Aug 5, 2014 - 09:10

One thing to take note of is that in the UK there are no fair use clauses, you are not allowed (in theory) to make a personal copy in .MP3 for example of a track you have already bought on CD.

You are also not allowed to produce a performing copy by photocopying pages from the original score and sticking them together, or scanning them as a PDF and reading them from a tablet.

Strictly speaking performance of copyright works is also rigid - my church's copyright licence specifically says that I must not deviate from the arrangement on the printed page, but must play it exactly as it appears. I don't think any church musician takes notice of this, however.

PS I suspect that UK copyright is deliberately left this way so lawyers can make money out of it!

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• Mar 9, 2019 - 21:56

this is a very old post, but can you tell me if I would be infringing copyright by downloading a musescore file of, e.g., Vivaldi's Four Seasons (which someone else has uploaded), saving it as a midi file, dragging it into garageband and then using it as background music for a podcast on facebook?

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• Mar 9, 2019 - 23:05

Thanks for your quick replies. Apparently Facebook is very fierce about copyright in music, but in light of what you’ve said, their rules don’t seem to apply to what I have in mind....especially as I have changed the arrangement a bit. Thanks again for your help.

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• Aug 5, 2014 - 06:31

I read the article, thanks for posting! Still, I don't see it as saying anything much different from what I wrote. The only discrepancy is that indeed, as you say, a sufficiently unique arrangement of a song would not be covered by BMI/ASCAP/SESAC license. But the examples given are pretty extreme - replacing lyrics with an entirely new set. I see no reason to assume it would apply to ordinary arrangements, no matter how different. This is done *all the time* in the real world. And in the absence of existing case law to establish how "different" an arrangement would need to be in order to not fall under the terms of the ASCAP/BMI/SESAC contract, I still think in practice this is a non-issue. But it is true that adding an entirely new set of new lyrics to an existing tine needs explicit permission for recording - that is definitely not included in a generic Harry Fox license. I've had to do this on several occasions. In most cases, the copyright holder was happy to have royalties and didn't care anything about the new lyrics. In one case, they actually micromanaged a bit, wanting to choose the new title. In another, they actually refused permission.

In any case, there is still nothing on that srticle to suggest that merely *creating* the arrangement would be a problem.

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• Aug 5, 2014 - 19:58

From an excerpt in one of the links sent by MikeN I "think" we can breathe a sigh of relief. next follows the bit .....

1. A purely adaptive arrangement of “Yellow Submarine” for live performance.
Permission analysis:
Examples of a purely adaptive arrangement of this musical work might be an arrangement for oboe with no other changes or an arrangement in the style of reggae. Based on these specific facts, this arrangement may not be publicly performed without permission from the owner of the copyright in the musical work. Obtaining this type of permission, a “public performance license,”is quite easy and has probably already been obtained. Typically, locations where music is performed publicly, such as concert halls, parks, and nightclubs, already have obtained this type of license from the three performing rights organizations(PROs) in the U.S. (ASCAP, BMI, and SESAC) in a blanket way that includes all performances at their location. These three PROs grant these rights on behalf of virtually every music publisher and songwriter in the United States. These licenses are very broad and would include situations where only a portion of the original musical work or arrangement was performed. Therefore, the writer of this arrangement has nothing further to do in terms of obtaining permission for the performance beyond confirming with the location that the blanket licenses are already in place.

In England I would therefore assume that as long as I (we) play in a PRS licensed venue, we should be ok.......

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• Aug 5, 2014 - 20:27

Yes, that is the intent. "Normal" arrangements are covered as part of the generic performance license a venue already has through its PRO's, and if you record, the usual mechanical license you would purchase yourself.

The only cases where you need to be concerned about performance are:

1) If your arrangement is so radical that it counts as a "contributive" arrangement according (not that this is a term used in copyright law, at least in the US - I think it's an informal term used by the author of that article) - and that basically means a wholesale replacement of the lyrics. Of course, there is virtually zero chance of actually getting called on this. The reps from the PRO's don't go around policing clubs that *do* pay licenses just to see if anyone is doing anything "contributive" - but they most assuredly do go around to the clubs that *don't* pay licenses to make sure no one is playing any of the music they represent.

2) If you play in a venue that is *not* a regular live music establishment - like if you rent an event center of some kind to put on your own concert. Here you are required to negotiate your own licenses song-by-song - and yes, some people actually do this (I participated in such an event a few months ago, but luckily, someone else was in charge of getting the licenses). In this case, it doesn't matter what your arrangement is like - it could be an exact note for note copy of the original. It's the playing of the song that is the issue, not your arrangement.

Now, if you play other people's songs (again, regardless of arrangement) at a venue that *should* have a blanket licenses from the PRO's in your country, sooner or later they will probably get caught. But at least in the US, it is the *venue* that gets in trouble, not you. I've had that happen many times. At no times are the musicians themselves ever harassed about this (except by the club owners if they have an "originals only" policy in place that you violated).

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• Aug 5, 2014 - 22:05

Please note!!!!!

US copyright law does not apply in the UK

What you have been reading is for US only!

You should check with someone who knows UK copyright law.

In particular PRS rules say that if the venue is not PRS licensed then it is down to the musician(s) to apply for the appropriate licences

PS Check with PRS - they are always very hlpful in steering musicians through th copyright licensing minefield.

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• Aug 5, 2014 - 22:20

Yes, sorry for not being clear about the places where the international treaties do *not* ensure consistency.

The other area where I know the US does things differently from most other countries - and I know they fought hard to make sure the treaties wouldn't force them to change - is that in most countries, the artist who records a cover song gets a share of the royalties when that record is played on the radio or is otherwise broadcast. In the US, only the composer gets those royalties. So as many times as you might have heard, say, that one girl from "Wicked" singing that one song from "Frozen" on the radio, she didn't receive any of those royalties in the US. I suppose she probably got a share of the royalties from radio airplay in other countries.

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• Nov 16, 2016 - 13:05

In the US, it's legal to write it, and legal to record it.

Releasing the recording requires a mechanical licenses, obtainable through Harry Fox. You're still OK.

What's not OK

If you or somebody else performs your arrangement in a public place with your sheet music on the stands, you're potentially at risk, although enforcement is rare in the general case.
Here's what enforcement usually looks like:
Representatives from Trésona Inc (a loose partner of Hal Leonard, Inc, the giant print publishers) attend events like marching band or show choir competitions, where there are likely to be a lot of custom arrangements. They might also be a college jazz festivals or other major public events. They look at the music on the stands to check for licensing language in the footer of the parts. If there is none, they sue, for many thousands of dollars, naming the ensemble, school administration, or anybody else connected who is likely to have money and vulnerable assets.

Trésona also sells licenses in the form of "Permission to Arrange" - but they are more expensive than Hal Leonard. Start here: //www.halleonard.com/permissions/index.action . They can take up to 6 weeks to get back to you.
- Jon Burr //arrangerforhire.com

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• Jul 31, 2017 - 16:11

Hi guys and guyesses,

The following is from an English perspective:

I've just rung MCPS +44 (0)20 3741 3888 and explained that I've arranged Stevie Wonder's "Higher Ground" for my Big band, haven't changed the tune or words but have put my own slant on the arrangement. Also told them that it will not be sold but will be performed in PRS licensed buildings. Did I need permission or a license for that arrangement. The chap that I spoke to said a very definite "No".

Thank you for all your various inputs.

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Anonymous
• Aug 4, 2017 - 16:22

Performing an already published and well known piece is fine in the US as long as you don't sell the print, disc, record, download or sync copies etc. of it without getting the appropriate mechanical and publishing license(s) on the one hand. On the other hand if the performance venue was commercial, they needed another license. The complicating issue here is You Tube and recording. I don't know where they are at these days in terms of policy with the publishing societies. You Tube has a large policy document.

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• Feb 25, 2019 - 17:35

You always have to contact the label which published the work, unless you use it only for personal purposes (you can let your friends hear your piece at your home, but no public performance)
Check this PDF: https://www.musiciansunion.org.uk/Files/Guides/Education/Toolkit/Copyri…
P.S.: If the author of the original piece is death from at least 70 years (or 50, check the copyright laws in your country), there is no copyright more on the original piece, so you are allowed to publish freely your arrangement ;)

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• Mar 5, 2019 - 15:07

The 70 year rule @Stoimenov mentions is referring to how pieces enter the public domain in the EU. IMSLP has a summary of how the public domain works in various countries and jurisdictions.

If a work is available on IMSLP then it is either in the pubic domain in at least one country, or the author has placed it under a license that allows you to distribute it freely subject to certain conditions. In some (but not all) cases the conditions include not modifying it (so no arrangements) and/or not performing it in pubic.

If you are unsure then the safest bet is to base your arrangement on an edition that is in the public domain worldwide. Here is how to recognise this with works on IMLSP: https://musescore.org/en/node/252431

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