Friday, May 11, 2012

Arrangements And Derivative Works

Arrangement [Ger. Bearbeitung]. (1) The adaptation of a composition for a medium different from that for which it was originally composed, usually with the intention of preserving the essentials of the musical substance: also the result of such a process of adaptation.”[1]
            There are many types of derivative works. Although the copyright laws allow the right to make derivative works exclusively to the copyright owners, it has been customary to create adaptations of others works since before copyright was ever made the law. Most every musician and composer create arrangements of their favorite music, which is why a publisher must be ready when:

(1)   The publishers song is being arranged by an outside writer
(2)   One of the publisher’s signed writers arranges a song written by an outside writer
(3)   The writer splits credit for an arrangement with another arranger
(4)   The publisher’s signed writer arranges a work that has fallen into Public Domain

Before determining who gets credit, a publisher must also must know what qualifies a work as an “arrangement” and not a “cover.” A cover song is basically a copy performed by another musician who is not the original writer. Although many cover versions are not exact copies of the original musical work, traditionally there's no intention of receiving writers credit when performing or recording covers; whereas  an arrangement can constitute for shared royalties between the original writer and the new writer. Another thing a publisher or anyone working in industry should be aware of is the difference between a different sound recording of the same work, and an arrangement of the work. If a new rock group recorded Beethoven’s 5th symphony exactly how Ludwig wrote it, that would just be a “cover.” If the new rock group added a solo and lyrics, that would be an example of an arrangement.
For a music publisher it is almost an everyday thing to determine the percentage of credit that a new writer can take for their adaptation whether it includes lyrics added to an instrumental piece, new chord changes, timing differences, style differences or even different ways of interpreting the writing on sheet music! All of these questions are determined by the publishers and their lawyers, some disputes seem to be never ending.
If a new version of a somewhat dormant song can only bring in extra revenue for the original writer and publisher, agreements can happen rather quickly. It is in the case of popular artists and their hit songs that they might not want others to even release cover versions let alone receive writers credit.
This Business of Music by William Krasilovsky uses the case of “When the Red, Red Robin Comes Bob, Bobbin’ Along” in Woods v. Bourne Co. F.3d978 as an example of one of these arranger disputes where the new writer changed parts while reading the sheet music:
“This was a test action supported by the Songwriters Guild of America to contest the claim of the former publisher that, notwithstanding a valid termination of publishing grants, the old publisher continued to be entitled to receive ASCAP publisher credits when old records containing prior arrangements were performed. After a full trial the district court ruled that although musical arrangements are recognized as a possible derivative use to be protected against termination, the courts ruling should not be read in a vacuum. The courts ruled that a mere cocktail piano arrangement or preparation of arrangement for sheet music or folio use does not qualify for a claim to all recorded renditions of the song involved.”[2] This is how deeply a civil lawsuit over copyrights can look into what qualifies a song as an arrangement.
Often a record label will not have cleared a product with a new arrangement before it reaches the public. Of course the publisher would be paid indefinitely for mechanical uses, but if the song needed to be licensed for a synchronization use, the publisher has the right to deny the arrangement on that release. Many products have been pulled off of the shelves, or royalties have been backlogged because writers and arrangers cannot decide on who gets what percentage.
The PRO’s can provide good leverage for a publisher to negotiate the split of writers' credit with the publisher of the original version, usually because the PRO’s will only render an arrangement worthy of royalties if the new version is “substantially different.” Showing that the song has new qualities, with a society to back up the claim can persuade the original publisher to let the new writer get a piece of the royalties. However, if there is no original publisher, or if the work is in Public Domain, the record label releasing those works might agree to pay a small amount if anything for PD arrangements:
“The contracts of many record labels state that the recording artist grants to the label a free mechanical right license for copyrighted arrangements of songs in the public domain that are recorded and controlled by the artist. This results in greater profits to the record company since there are no mechanical royalties to be paid.”[3]
Many of the decisions about PD arrangements also lay within the performing rights societies that determine whether a new arrangement can be registered for royalty collection. A good first thing to do for a publisher with an arranged song is to register those arrangements with a performing rights society:
 “When ownership of a copyright is split, administration of the property can be difficult. Where coauthors are involved, ASCAP, BMI and SESAC will honor directions from the co-owners to divide performance royalties among the writers and publishers involved… ASCAP, BMI and SESAC are accustomed to paying (often reduced) royalties to authors and publishers of arrangements based on works in the public domain.”[4]
Usually for PD arrangements, BMI will pay 20% writers credit to the new writer(s), ASCAP will pay 15% and SESAC will pay 10%. Here is an example message that a record label might send to a publisher that is claiming rights to a PD title when the songs are not controlled by the recording artist:
“You are claiming copyright ownership on behalf of the arrangers and arrangements listed above. Mike Lerman Recordings Inc., policy is to use your performing rights society’s credit rating to calculate royalties for Public Domain titles provided there is no prior agreement addressing the PD works. Your performing rights society, BMI, grants a 20% credit for Public Domain titles, and as such your mechanical license will reflect your pro-rata share of this percentage. If your performing rights society has reviewed this title for content and original merit and found it to be worth more than the standard percentage, please provide documentation of said review at this time. Please feel free to contact your performance society or myself if you have any questions.”
Some foreign publishers often have a big problem with this message because they are used to getting full pay for their Public Domain arrangements overseas where arrangers take full writers credit. Although most foreign publishers royalties are collected from the territorial performing rights organizations (that often allow full rates for PD arrangements) they must register their arrangement with ASCAP, BMI or SESAC if they want to be paid for licenses in the USA. Many foreign publishers return the with e-mails explaining that the record label’s “policy” has no merit and that they should receive full credit; along witha demand that the song must be pulled from that release and taken from the shelves under an infringement lawsuit. However, the result will most likely conclude with the label sending that publisher a license with the reduced rate anyway regardless of the (and most of the time the publisher still signs it!) After all, as far as this author has witnessed, US copyright law does not obligate USA based record labels to pay for PD arrangements in the first place. 
When it comes to public domain arrangements of works in the public domain (perhaps majority of printed music) there are ways of telling if the written music is an arrangement:
“Often the sheet music publisher will tell you so somewhere on the work. The absence of a copyright notice in the publisher’s name is also a sure sign that the work is not a new arrangement.”[5]
For publishers and writers alike it is extremely important to know how to treat arrangements and other derivative works. Although negotiating the splits on new arrangements can be tricky, it is imperative that people use these arrangements to keep old songs a live. Music in the public domain is made public for a reason, if a new writer can change the piece enough to sound like a new song, a portion of writers credit should be the incentive for derivative works to be recognized.

[1] Randel, Don Michael The Harvard Concise Dictionary of Music and Musicians
Harvard University Press, 1999
[2] Krasilovsky, William M. This Business of Music: The Definitive Guide to the Music Industry Billboard Books, 2007
[3] Krasilovsky, William M. This Business of Music: The Definitive Guide to the Music Industry Billboard Books, 2007
[4] Baskerville, David The Music Business Handbook and Career Guide.  Thousand Oaks: 2006
[5] Fishman, Stephen. Public domain: How To Find & Use Copyright-Free Writings, Music, Art & More. NOLO Publishing.  2008

1 comment:

  1. I have a derivative work that is being used on TV. The song has been totally flipped, new chord, progression, new melody, new everything.

    What are the steps I need to take to get composer credit on this. Do I just add the song to my pub companies at ASCAP?