Transcription, Arrangement,Copyright issues

[scottw]

We have a serious situation with one of my bands: our former leader has been removed for reasons which do not concern us in our discussion today. The problem is that he also transcribed/arranged many of the pieces we play. Every one of them is in the public domain and were taken directly from old piano parts from the period. That is, the alto parts were assigned to alto horns, the tenor parts to tenor horn or baritone, etc. There was no application ever made for copyright on any of them and they were made on the band-owned computer, paper, and copy machines, using band-owned software.
As you may see, he is now demanding that we no longer use anything with which he might have any remote connection. Our alternatives are to pack it all up in a big box and give him the pieces, which we will probably do. A couple pieces in dispute we would prefer to continue using for simply pragmatic reasons. We can consult a copyright attorney, but we would prefer to avoid that whole messy issue for the good of everyone. And, why spend band money needlessly?
Based on the extensive body of knowledge of the TNFJ, is there a copyright issue involved here? We really do not want to honor this person by playing his transcriptions/arrangements, but some are on CD's we still use and some of these pieces are expected at certain performances. If there are serious concerns from TNFJ, then we will carefully consider our options. We do not want to infringe on copyright issues. If not, then it might just be a good time to tell him to pound sand!
Thanks in advance for any input.
Regards,
Scottw

[Dan Schultz]

Like Wade said.... he doesn't need to seek copyright to own the arrangements. Use what you want and just give him the rest of his stuff. Since the relationship is already 'trashed'... what difference does it make? It's not likely he will sue you. But... if he does, just quit using his stuff and he won't have a case. Same with the recordings.

I think this is a great case to try to 'bury the hatchet'. Music is too damned important to involve personality disorders and domestic squabbles.

[Uncle Buck]

We really do not want to honor this person by playing his transcriptions/arrangements, but some are on CD's we still use and some of these pieces are expected at certain performances.

If your band really needs to keep performing these pieces, one option is just to offer to buy them from the guy. Probably cheaper than fighting him on the law (but clearly more expensive than just not playing his stuff anymore - but you seem to state that isn't an option for your band).

Could your band members begin performing these pieces directly from public domain publications (doing their own transcription, etc.)? That could be another option - but I'm not giving an opinion on the legality of that because he might still decide to fight you on it.

(Hypothetical - if a conductor develops her own trademark interpretation of a public domain piece, and the organization continues to use those interpretations after the conductor leaves . . .)

Not meaning to be a Monday-morning-quarterback, but there is a valuable lesson here that others on TubeNet could learn. A pre-nup would have helped here - something in writing at the outset that clearly established ownership of the arrangements. That doesn't help you now, but it may help others avoid this.

[hup_d_dup]

Scott, you have received advice I agree with. There are a couple of points not mentioned, and perhaps not relevant, that I will add. You didn't say exactly what the employer/employee relationship between the director and the band was. If the director was an employee, in the sense that a high school band director is an employee, the copyright would be owned by the employer if the arrangements were understood to have been made within the normal scope of the employee duties. The arrangements would be considered "work for hire". I have a feeling that is not the case in your situation.

The other point is that it is correct that the director owns the copyright to the arrangements, whether the copyrights were registered or not. However, the fact that the copyrights have not been registered is significant, for a couple of reasons. First, a legal action cannot be pursued unless and until the works are registered, and It's not clear to me how the former director can do this if he doesn't have access to the work. Second, a very powerful tool of the copyright law is the ability of a plaintiff to recover legal fees from a defendant if the case is successful. It's very time-consuming and expensive to pursue a copyright case. If the actual damages are low, they can be far exceeded by the legal expenses. However, the copyright law takes this into account by forcing an infringer to pay the plaintiff's legal fees if the case is successful. This statutory damage recovery means that lawyers are alway eager to take a strong copyright case because of the likelihood that it will be settled out of court before the defendant's legal fees build up, or if necessary, to spend additional money to come into trial with strong case. This is a big hammer that little people have against even big corporations. However, plaintiff legals fees can only be recovered if the copyright is registered in a timely manner, which is defined as before infringement, or within 90 of publication, whichever is later. It appears that window has been shut for your former director. This means even if and when he registers the copyright, he will only be able to sue for actual damages; unless he can show that the market value of his arrangements was significant, no lawyer will ever take the case, at least on contingency.

Hup

[hup_d_dup]

One other thing that occurred to me just now, and it's something that I'm going to bring up at our next band board meeting. I know from my experience in commercial photography that a normal liability insurance policy will probably not protect you in a copyright lawsuit. That is handled by a different type of policy called "Errors and Omissions." Something else to consider if you feel you may be vulnerable to an infringement lawsuit.

Hup

[Mark]

I really think you should consult an attorney. If he made the arrangements as part of his job as the band's director, the band may own the rights to the music as it would be "work product". An attorney experienced in copyright should be able to tell you your options for a minimal fee or might even donate the time to the band.

[Dan Schultz]

Always seek out an attorney to play in your band. It strengthens your "team" in such a situation.

HAHAHA!!!

[pgym]

There was no application ever made for copyright on any of them and they were made on the band-owned computer, paper, and copy machines, using band-owned software.

If there are receipts and/or insurance records showing band ownership of the computer and software, and the software is registered in the name of the band rather than the director), they would be prima facie evidence for the transcriptions/arrangements to be considered works for hire. In that case, absent a signed, written agreement between the band and the director specifically assigning copyright of the arrangements to the director, the band would be presume to be the owner of the copyrights.

[scottw]

Thanks to all for the insightful replies. We have learned some things from all this mess and will take steps that it never again happens.We have decided to make a complete and total break: we will give this person everything he claims to have created and will demand he return band property in return. Never again will his arrangement/transcription/whatever be played by the band and we will not give another thought to him. Legally, we could either win or make it so costly to him that it would not be worth doing, but the high road is best for us.
Again, thanks!
Scottw

[hup_d_dup]

If there are receipts and/or insurance records showing band ownership of the computer and software, and the software is registered in the name of the band rather than the director), they would be prima facie evidence for the transcriptions/arrangements to be considered works for hire. In that case, absent a signed, written agreement between the band and the director specifically assigning copyright of the arrangements to the director, the band would be presume to be the owner of the copyrights.

You've got this backwards. Absent a written agreement between the band and director, the copyright belongs to the director, not the band. Receipts, software, insurance records do not alter this. Yes, receipts and the like may indicate that the director was an employee, in which case the arrangements are considered "work for hire." However, there are more important factors to determine if the director was truly an employee: did he have a salary, was he paid for his work without submitting invoices, did he have payroll taxes deducted from his paycheck, is he eligible for unemployment insurance, etc. If the answer to most or all of these questions is no, he is not an employee, he is an independent contractor. Independent contractors ALWAYS own the copyright to the work they create unless there is a written contract to the contrary.

Hup

[pgym]

You've got this backwards. Absent a written agreement between the band and director, the copyright belongs to the director, not the band.

Nope.

If the arrangements are considered WORKS FOR HIRE the copyright belongs to the employer, which in this case would be the band.

[Uncle Buck]

If the arrangements are considered WORKS FOR HIRE

Yeah, but absent a significant factual analysis, that's a pretty damn big "if." Looks like the situation that led to this thread is resolved, though.

[scottw]

If the arrangements are considered WORKS FOR HIRE

Yeah, but absent a significant factual analysis, that's a pretty damn big "if." Looks like the situation that led to this thread is resolved, though.

Resolved in the sense that we are going to just give him what he wants and make the whole thing go away. There is a part of me that wants to fight back, though!
There is a possibility that this person will simply walk back through the door when this is over and demand his membership be re-instated; how he would even think this a good thing I cannot say, in light of the awful situation. In this case, is there any lawful way we can throw his butt out of the room and deny him membership? Crazy times!

[TubaRay]

There is a possibility that this person will simply walk back through the door when this is over and demand his membership be re-instated; how he would even think this a good thing I cannot say, in light of the awful situation. In this case, is there any lawful way we can throw his butt out of the room and deny him membership? Crazy times!

I would guess this would depend on the stated rules of the organization.

[scottw]

There is a possibility that this person will simply walk back through the door when this is over and demand his membership be re-instated; how he would even think this a good thing I cannot say, in light of the awful situation. In this case, is there any lawful way we can throw his butt out of the room and deny him membership? Crazy times!

I would guess this would depend on the stated rules of the organization.

We have nothing to cover a member who takes a leave of absence, makes a terrible mess on exit, demands we never again use his music, then {maybe?} decides to waltz back in as though nothing happened!

[pgym]

If the arrangements are considered WORKS FOR HIRE

Yeah, but absent a significant factual analysis, that's a pretty damn big "if."

Which is why I said it was prima facie evidence of ownership, rather than proof of ownership.

[hup_d_dup]

Which is why I said it was prima facie evidence of ownership, rather than proof of ownership.

What you are missing is whether or not the director is an employee. That isn't determined by receipts; it's determined, for the most part, by payroll records. A high school band director is an employee, a community band director is not. We already know from the OP, there is no work for hire contract. Independent contractors own copyright to the work they create unless they sign it away.

It's understandable why this issue may be misunderstood. The statute reads as follows:
(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

A cursory reading of this paragraph could reasonably — but incorrectly — be interpreted to mean that the employer or other person (say for instance, the community band) does not need a contract to own the copyright.

But the thing to remember is that this episode is not a work for hire situation to begin with. In the Copyright Act of 1976 work for hire is defined thusly;
(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (emphasis mine)

The OP has told us there is no contract (2); if the director was not an employee (1), he will own the copyright.

Hup

[iiipopes]

I really think you should consult an attorney. If he made the arrangements as part of his job as the band's director, the band may own the rights to the music as it would be "work product". An attorney experienced in copyright should be able to tell you your options for a minimal fee or might even donate the time to the band.

THIS!!!

[hup_d_dup]

I really think you should consult an attorney. If he made the arrangements as part of his job as the band's director, the band may own the rights to the music as it would be "work product". An attorney experienced in copyright should be able to tell you your options for a minimal fee or might even donate the time to the band.

THIS!!!

Watch out for any attorney who is self-described as "experienced in copyright". I have personally seen how badly this can end up. If this is going to be your path, you better damn well make sure your lawyer specializes in intellectual property law. It should say "intellectual property law" or something to that effect on the business card, letterhead and website. This doesn't guarantee you will have a good lawyer but at least he will be won't be coming into a football game wearing a scuba tank and fins. I have heard some very dubious and outright incorrect opinions from attorneys who knew just little enough about copyright law to be dangerous.

I mention this because it was suggested that an attorney may donate his time to the band. This is true. An attorney might donate his time to give an opinion on a "simple" copyright case in order to get more business in his actual area of expertise, which may be something as far removed as real estate closings. This can lead to an unhappy result.

Hup