 The Clarinet BBoard
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Author: reprise
Date: 2009-05-11 22:43
Hi all -- I understand that in order to do a transcription or arrangement of a work that is not in the public domain, you must secure permission from whoever owns the rights. I'm looking at doing some arrangements for clarinet trio -- they would be played at a church service. That said, before I begin jumping through hoops...
Has anyone had personal experience with doing this? I'm interested in getting an idea of how long the process can take, and whether there are typically costs involved if the transcription/arrangement is not going to be made available for sale. (I've seen various clarinet trios/quartets who've said they do their own transcriptions, so I'm hoping someone is out there from one!)
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Author: BflatNH
Date: 2009-05-12 12:35
I think you do not need to ask for permission to re-arrange (or otherwise change) a non-public domain piece. I think the restriction you fear is called 'moral rights' which may be in effect in some countries (France?) that prevent you from changing someone else's creation, but I don't think it is in effect in the US, and I don't know about Canada. I think that once you have purchased the underlying piece, you are free to add your own creative layer, which BTW, you can claim rights to.
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Author: Mark Charette
Date: 2009-05-12 13:16
BflatNH wrote:
> I think you do not need to ask for permission to re-arrange (or
> otherwise change) a non-public domain piece.
I know you are wrong in the USA, and wonder why you'd suggest such a thing when you don't know.
There is no permission given to making arrangements of copyrighted songs without the consent of the copyright owner.
Costs & difficulty in obtaining permission vary. I did not had any trouble in the one case I did this (asking permission to arrange "Spanish Eyes" for our piano class, "n hands"), but each piece of the arrangement had to be sent to the copyright owner for reference, stamped with "for class use only", and could not be played in any forum other than class or a recital, with recorded copies only available to the families of the participants. There were significant penalties involved if we did anything but follow the rules.
It didn't cost us anything.
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Author: skygardener
Date: 2009-05-12 13:40
Mark (or anyone that knows)-
What are the procedures to secure copyrights for arrangements of public domain things (Bach, for example)?
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Author: Mark Charette
Date: 2009-05-12 13:45
skygardener wrote:
> Mark (or anyone that knows)-
> What are the procedures to secure copyrights for arrangements
> of public domain things (Bach, for example)?
In Japan - I'm clueless.
In the USA - copyrights are secured as soon as you put it in a tangible medium (what a tangible medium is ... is a different problem). If you want to secure additional rights in court, it needs to be registered.
http://www.copyright.gov/ is the place to go for accurate information.
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Author: BflatNH
Date: 2009-05-12 14:57
It is better to be safe here.
An interesting article on "The Legality of Arranging"
http://www.singstrong.org/articles/41-the-legality-of-arrangements
states in part:
"Arrangements may (possibly) be legal when the arrangements are created by or for a group publicly performing where the group or owner of the performance space has paid for the rights to publicly perform the song. "
If the church has paid for this right as part of the cost of the music, then an argument may be made, but I don't know if this theory has been tested.
I think that explicitly getting the rights is the better way as you will branch out to perform and arrange under different circumstances.
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Author: johng ★2017
Date: 2009-05-12 15:02
Simply write to the copyright holder and request it, being specific about how you plan to use the music, and your qualifications for doing so. Most people would have no problem with this, but if the copyright is held by a large company, you may be ignored. I have had good and bad luck with this, but don't take it personally. Just recently I got permission to arrange a work from the 1950's from the composer's family who were pleased to have the music played again, though in a different form. I am planning to perform it on a recital and not sell it, so no special agreements were needed.
John Gibson, Founder of JB Linear Music, www.music4woodwinds.com
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Author: Mark Charette
Date: 2009-05-12 15:09
BflatNH wrote:
> If the church has paid for this right as part of the cost of
> the music,
This is most commonly is not part of the cost of the music, but is a contract with the organizations responsible for collecting royalties for music performance. That is a different right from making an arrangement for the group - there are copyrights for the music, the performance, the recordings, and more, each with it's own set of rules. There are many simplistic assumptions being made on the 'net, most of which are based on what the author thinks is "common sense".
There's common sense, and then there's the law ...
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Author: BflatNH
Date: 2009-05-12 16:34
Since the next question may be "How much will this cost and how does it work?", I wonder if anyone who has contracted for arranging permission with the rights holder (and paid a fee) would share (generally) how it was determined.
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Author: mrn
Date: 2009-05-12 19:15
Mark wrote:
<<There's common sense, and then there's the law ...>>
Amen. (As a lawyer who works in this area of the law, I can say this is especially true of copyright law.)
I'm sorry to have to say this, BflatNH, but you're wrong on all accounts. Making an arrangement of a piece under copyright without permission is creating a *derivative work*, which is copyright infringement in the U.S., plain and simple. Canada's copyright law is similar in this regard, but differs in some of the specifics.
This has absolutely nothing to do with moral rights, which protect against things like defacing artwork that you own (e.g., drawing moustaches on portraits, etc.). In the U.S., we do actually recognize certain moral rights for visual arts (17 U.S.C. 106A), although this is a relatively recent development.
Performance rights do not, per se, give you permission to make a new arrangement or adaptation. Of course, performers are always permitted some leeway in interpretation of a work (as that is the nature of musical performance), but (and this is important) *there is no clear dividing line between what constitutes an interpretation as opposed to an arrangement.* If you have any doubt, you should ask the publisher (or whoever the copyright owner is, if it's not the publisher) for permission. Most are quite approachable in this regard--they are used to this sort of thing.
The Music Publishers' Assocation even provides a form to use for requesting permission to arrange, so there's really no excuse for not doing so:
http://mpa.org/copyright_resource_center/forms
Incidentally, in the United States, this whole business about *performance rights* (as opposed to copyright in the written score) doesn't apply in the context of music used for religious services. Hence, churches (and synagogues, etc.) in the U.S. generally do not have to secure performance rights for the music they use (although copying song sheets, etc. is another story). 17 U.S.C. 110 reads in part:
"Notwithstanding the provisions of section 106, the following are not infringements of copyright:
...
(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;
..."
Post Edited (2009-05-12 19:21)
Post Edited (2009-05-12 19:32)
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Author: GeorgeL ★2017
Date: 2009-05-12 22:22
I can offer one reason why someone might be hesitant to use the MPA arrangement approval form:
The basic theme of the agreement is that the publisher will own your arrangement. That one makes sense, because without the original piece, there would be no arrangement. And the publisher wants to control distribution of the arrangement because it could affect distribution of the original work.
There is one clause everyone might want to try to change. It says that you (the arranger) will pay them (the publisher) for permission to make an arrangement which you may perform only at a designated performance.
How many groups only play a piece of music in their library one time? Especially after you go to the trouble of making an arrangement for them.
If you do not own a copy of the original work, this clause makes sense. But if you do own the original work, you should have the right to perform your arrangement as often as you could perform the original work.
Could you get them to make this change? I do not know; but if I were an arranger, I would ask for it.
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Author: mrn
Date: 2009-05-12 22:40
GeorgeL wrote:
> I can offer one reason why someone might be hesitant to use the
> MPA arrangement approval form:
> There is one clause everyone might want to try to change. It
> says that you (the arranger) will pay them (the publisher) for
> permission to make an arrangement which you may perform only at
> a designated performance.
You don't have to use their form or use it verbatim, as long as whomever you're making the agreement with agrees to your terms.
I don't have any affiliation with the MPA, by the way. I just happen to know they have a form you can use, which ought to give someone who needs it a little guidance as to how to go about getting a license.
The MPA, by the way, does take a very pro-publisher interpretation of the law on their website (would you expect otherwise?). The law as applied in court may not be as strict as MPA makes it out to be. (On the other hand, it's hard to go wrong by following MPA's advice, because it is so pro-publisher.)
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Author: 78s2CD
Date: 2009-05-13 03:56
I'm not an attorney, and would welcome mrn's take on this. My understanding is that if one owns copies of the music, but the copies are unsuitable because of transposition or clef issues, then transcription is permissible (USA). For example, my church has an ample supply of hymnals, but my clarinet choir can't play out of the hymnals becaue the third and bass clarinets can't read bass clef. Or maybe we need a different key because some of us don't do well in seven sharps. So long as my transcription does not make a substantive change in the arrangement, and it is not being done to avoid purchasing the music, this should be okay without seeking permission. The acid tests: I did not make any creative change to the arrangement and I didn't make copies to avoid purchase.
Regards,
Jim Lockwood
Rio Rico Az
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Author: mrn
Date: 2009-05-13 18:20
78s2CD wrote:
> My
> understanding is that if one owns copies of the music, but the
> copies are unsuitable because of transposition or clef issues,
> then transcription is permissible (USA). For example, my church
> has an ample supply of hymnals, but my clarinet choir can't
> play out of the hymnals becaue the third and bass clarinets
> can't read bass clef. Or maybe we need a different key because
> some of us don't do well in seven sharps. So long as my
> transcription does not make a substantive change in the
> arrangement, and it is not being done to avoid purchasing the
> music, this should be okay without seeking permission.
This question has never been specifically addressed either by the courts or by statute, so no one can say with absolute certainty that what you're describing is legally permissible.
However, there is a very good argument to be made that it is legally permissible based on the doctrine of fair use. There are some cases involving other types of works in which the court concluded that making a transcription for the purpose of making the already-possessed legitimate copy understandable was permissable. The specific case I am thinking of presently involved the disassembly of computer object code into a human-readable form for reverse-engineering purposes. Since that is quite similar in concept to what you are describing with transposition and clef change, it seems logical that the same rule would apply to the situation you are describing.
And as a practical matter, because of the lack of economic impact this sort of copying has (not to mention the fact that the publishers want happy customers) composers and publishers are not likely to attempt to sue someone for copyright infringement for doing what you describe (which is probably why we're not likely to see this issue addressed in court any time soon, if ever). The key fact here is that what you're doing is necessary to make the music usable for you and that you are not avoiding purchase by doing so.
Sometimes doing this might be an avoidance of purchase, however, so you need to make sure. For example, I used to play in a church ensemble where the hymnals had C melody instrument books that went with them. Those parts that were too fast or full of accidentals to sight-transpose (onto Bb clarinet, since that's all I had at the time) I would write out on staff paper. When the publisher later came out with Bb instrument books, I stopped writing out the transpositions on my own (because if I had continued, that would be an avoidance of purchase) and persuaded the church to buy a set of the new Bb books (which wasn't too hard to do, since I was the de facto music director for the church at the time).
Post Edited (2009-05-13 18:45)
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Author: 78s2CD
Date: 2009-05-14 19:41
mrn,
Many thanks for your thoughtful and thorough answer.
Best regards,
Jim
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