What about "private" musical arrangements

[Carroll]

I was following another thread and one poster made a comment about "tweaking" arrangements for use with his group. He offered to share his work but under the caveat:

If you end up using any of my stuff PLEASE DO NOT list it on a printed program - only announce it verbally - because I hate getting those Cease and Desist letters…

I, too, alter and adapt arrangements for use with groups I play in. I hesitate to share these for fear of publisher reprisal. I wonder how many of us are in this boat and how we protect ourselves from legal actions.

Can one ever really be sure the beneficiary of our sharing will not print the name of the arrangement provider and expose us as infringers?

[scottw]

Similarly, adapting brass band or concert band arrangements for large brass ensemble is likely a copyright problem. Where I fail to see the problem is that I bought the original arrangement in the absence of a large brass arrangement in the first place--I would have bought it if there were one available! Changing key and clef and reassigning parts is not quite re-arranging the original, but I bet it's some manner of violation for which I would be excoriated. There is something wrong with that law in that, upon duly purchasing something, I am forbidden to alter it or copy it or share it.
Rant over.

[Tom]

Can one ever really be sure the beneficiary of our sharing will not print the name of the arrangement provider and expose us as infringers?

The only way to be sure is for the group not to volunteer the arranger or for the presenter/church/etc. not to ask. When pressed, often times groups will claim to perform one arrangement and actually perform another...99% of those listening don't know and never will know the difference...pretty common practice where I am.

[Geotuba]

Actually cacking a note in performance is probably a copyright violation because you have deviated from what the composer wrote

[jmerring]

I play in a non-profit group and our wind ensemble director arranges music for us, often. He also gets acknowledgement in our programs. I smell trouble.

[windshieldbug]

As they say, "No evidence, no harm, no fowl".

I know we never left any avians for such activities...

[Carroll]

But my personal arrangements are mostly of copyrighted material and are, therefore, illegal, as I have not yet paid for the right to arrange. That will happen one day. Until then, these are very good pieces that just cannot be listed on a printed program for submittal to ASCAP or BMI.

This was my intended discussion, as well. I have done LOTS of "illegal" quartet arrangements. I do not mind sharing them with others. I do not want to get more trouble than they are worth.

[MaryAnn]

I'm no lawyer, but....you have to somehow threaten the profit that would have been made if the original arrangement were played instead of your modification. If you're not performing for money, I can see no harm (once again, not a lawyer.) But if someone uses your arrangement and plays for money...you're in legal hot water if the copyright holder decides to come after you. Remember the whole Happy Birthday thing?

MA

[Alex C]

I play in a non-profit group and our wind ensemble director arranges music for us, often. He also gets acknowledgement in our programs. I smell trouble.

If the copyright manager (e.g. EMI for Beatles tunes) ever saw a program with the tune listed and checked for the arrangement license, you would get a nasty letter demanding that all parts, scores and sketches be remanded to them. If it continued you could well end up in court. Not worth the ‘fame’ of having your name in a program.

It’s just plain stupid to put your name on an unlicensed arrangement. And yet there are arrangements advertised for sale on commercial sites that violate the print license copyright. Dumb!

Actually cacking a note in performance is probably a copyright violation because you have deviated from what the composer wrote

Never fear. It has to be written down. UNLESS you make a recording but that’s another issue entirely. Recordings tend to attract more notice too.

… LOTS of "illegal" quartet arrangements. I do not mind sharing them with others. I do not want to get more trouble than they are worth.

If you share them, be nervous enough to leave your name off.

The publishers are beginning to notice that there is a lot of money being lost to marching bands and, no the educational use clause probably won’t cover it. Brass bands and such will not be far behind.

There is a lurker on the board who could speak to the issues of intellectual copyrights. I wish he could leave some online sources for the rest of us but he has good reason to pass.

8888888

I saw an interesting approach toward the print copyright law. A famous brass ensemble had a well known orchestral piece they were playing; I looked in one of the books and they had taken a score and cut the parts they wanted for their performance out and taped them to black construction paper.

Literally, they had not made an arrangement. They were playing the parts of the score that they wanted to play. They had not written or scored anything but were selectively playing the parts already arranged.

I asked the leader if this was the case and he said yes. He said that SESAC licenses paid for the performance rights and if they made a recording, they would get the mechanical license. Even that sounded like a dark grey area to me. I'm sure their attorney didn't know or approve it.

Had they taken those parts and used a notation program to simply ‘clean up’ what they were doing, it would have been an infringement. A brave approach but smarter than the group who made an arrangement of "Mr. Grinch" and blasted the illegal arranger's name on the printed program. If it'd been me, I'd still be in jail.

[pgym]

you have to somehow threaten the profit that would have been made if the original arrangement were played instead of your modification.

Strictly speaking, no, you don't: a "private arrangement" based on an existing copyrighted arrangement is, by definition, a derivative work, making it a de facto violation.

Quite apart from that, however, I would also point out that distribution of an unauthorized "private arrangement" to individuals or groups who do not own the original arrangement necessarily harms the copyright holder's exclusive right to profit from his or her work by denying the rights holder the sale of the work, either in its original form or in the form of an authorize arrangement, to those individuals/groups, as well as any performance and/or any mechanical and performance royalties that may arise from performance of that work.

Pgym.

[olaness]

Interesting topic!

Not lest since I have heard and played many legal and licensed arrangements that were just appallingly poor, and also many illegal ones that were very good indeed (for example made by a student who wrote it for his own quintet when a published one was found to be sub-standard, but could not afford the license fees).

On a related topic though, how does it work legally is you make your own composition and decide to quote someone else's work in there?
And indeed if you make a composition that uses someone else's copyrighted material as main material, but where the two compositions involved are entirely different entities?

This sort of thing happened (and presumably still happens) all the time in the classical music industry, but I can imagine a few people being pissed off at having their melody nicked and setting the hounds of law on the infringer. Would be interesting to know how this works legally.

[Rick Denney]

If someone took, say, an in-copyright piano arrangement of an out-of-copyright piece and used it as the basis for an arrangement for a wind ensemble, surely it would be difficult to prove in a court of law that there was an infringement, unless the new arranger was foolish enough to put on record what he had done. (I'm thinking of "Anchors Aweigh", first performed in 1907).

Note that for works that have registered copyrights that are still in force, the burden of proof is on the accused infringer to show that he did not infringe. Having a copy of a score predating 1923 is automatic proof and everything in that score is in the public domain. Likewise anything published before 1979 that did not include a copyright notice (whether or not it was ever registered). The point is that the guy who owns the copyright for a modern arrangement doesn't necessarily have to prove that you used his arrangement by showing how his special features found their way into your arrangement. Even if you work from an original score and come up with the those unique features, he will have a case but will probably not be able to collect damages. He will be able to force you to rearrange to avoid using his unique features. You could argue that his features are not actually unique, but if both of you end up in court then you lose no matter what.

The way it would normally happen is this: He gets wind that you have an arrangement that might use his special features. He gets his lawyer to send you a cease-and-desist letter. If you have that public-domain score and if you used that, then you can write him back saying your arrangement came from public-domain sources. Unless "he" is Disney or some other major publisher, that will probably end it right there. If you used that piano arrangement, then you cease and desist because you know you don't have what it takes to defend yourself in court, even if you ultimately win.

But there's a sort of parallel here with naval architecture. Boat designers just about always claim copyright, but my understanding is that a copyist is in the clear (i.e. unlikely to lose a suit for damages) if he just changes a few lines or dimensions when drawing or building a new boat.

There is no parallel here. You cannot copyright a design. You can only copyright a drawing. If someone else comes up with the same design, and can show how they came up with it, then you have no case. You can, however, patent a design, but that is a far more involved and difficult process than copyright protection.

Rick "yes, it sucks" Denney

[Rick Denney]

On a related topic though, how does it work legally is you make your own composition and decide to quote someone else's work in there?

It depends on how much you quote and whether your quote, whether it could reasonably deprive the person quoted of sales, and whether the quote serves to confuse the marketplace.

For example, Gregson quoted about four bars of Vaughan Williams's tuba concerto melody in his own tuba concerto. It would be very difficult to argue that the sale of Gregson's work could deprive Oxford University Press of the sale of the RVW Concerto, and there is certainly no issue of Gregson's work confusing potential buyers about whose work is whose. And it is obvious on the face of it that Gregson was not trying to make his work more marketable by quoting a bit of RVW. Thus, the quotation would likely fall under the fair use provision, it seems to me. But that doesn't mean that Oxford wouldn't challenge Mr. Gregson, starting with a cease-and-desist letter. I would bet that Gregson or his publisher (was that Novello?) got permission from Oxford just in case.

Of course, I'm referring to my understanding of provisions in U.S. Copyright Law, not the law in the UK, though my understanding is that they are similar.

Doing arrangements is difficult. If you can identify the owner, then there's no use in not asking permission. If a thorough search can't locate a copyright holder, then it's a risk perhaps worth taking because there may no longer being a copyright owner who is alive and paying attention. But if you get the cease-and-desist letter, then expect a negotiation to proceed that will end in sending the copyright owner money.

Rick "not a lawyer" Denney