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Arrangements of Copyrighted Material

I may know the answer but, I just took over a men's chorus where a previous director made arrangements of some popular music for men.  May I assume that performance of these pieces for a paying audience is illegal?  I can safely say that those arrangements account for 20% of the library.  I will not perform anything but legal works.  I appreciate your replies.
Replies (10): Threaded | Chronological
on April 20, 2010 2:29pm
Hi, Joseph.  Your question is simple.  The answer is anything but!
 
Copyright, as you probably know, is actually a bundle of separate rights, not a single right.  The arrangements you speak of are "derivative works" and should not have been made without obtaining the permission of the copyright owners.  My guess, like yours, is that this was probably not done.  And if so that means that the arrangements themselves are illegal.  However, since you did not make the arrangements, but inherited, simply using them is not in itself illegal, no.  (When I first came to this school I found a row of file cabinets stuffed with arrangements, including illegal copies of published arrangements, and filled several dumpsters with them, so I understand exactly what you're asking.)
 
But performance is a separate question.  Regardless of the source of the arrangements or their legality, you do owe performance royalties which are payable to the owners of the underlying copyrighted songs, not to the arranger(s), but if you're already paying ASCAP and BMI licensing fees those are probably covered.  (And if you aren't, you probably should be!)
 
And similarly, if you record those arrangements you will owe the statutory mechanical license fees for permission to record, but those fees will go to the owners of the underlying copyrights, NOT to the arranger.  And this is usually handled through the Harry Fox Angency in NYC.  In both performance and recording you owe the copyright owners of the original songs, NOT the arranger.
 
The only exceptions I can think of would be (a) in the case of public domain music, in which case any fees would be due the arranger IF the arrangements are properly copyrighted (which they cannot be if permission to arrange was never acquired); (b) performances in the course of day to day instruction in a recognized educational institution (which comes under Fair Use); and (c) performance in the course of a religious service (which also comes under Fair Use).
 
I am not an attorney, and these are my personal opinions!
 
All the best,
John
 
P.S.  If anyone knows that my analysis is incorrect, I'd love to see the evidence.
 
 
 
 
on April 20, 2010 3:04pm
I disclaim being a copyright lawyer, but this is actually a pretty straightforward question....
 
>>May I assume that performance of these pieces for a paying audience is illegal?
 
Not necessarily. If the pieces were arranged with permission then the permission letters (or copies of them) should have been kept with the music copies in the library. If so, check to see whether the permissions include a fee for performance royalties and whether they are extendable past a single performance.
 
But if you don't have the permission letters, or if permissions were apparently never requested, then you should assume the copyright law was broken by the previous individual, and you should destroy all the music copies because performance of the music, whether or not for a paying audience, would be illegal.
 
I think it would be very hard to make you "jointly and severally responsible" for someone's else's infringement actions, but you never know these days....... better safe than sorry!
 
-Cecil Rigby (
Liberty, SC
on April 20, 2010 5:38pm
Without permission, one maynot make a derivative work. This is simple. 
 
However...
Practical modification for actual performance/recording has been always done and permitted.
 
Let's say your previous director liked a certain piece and wished to perform with his ensemble. He obtained the scores for members, but he found out it cannot be performed as is, or found out that certain changes would make the performance more practical (like giving a certain part to another part, cutting repeat and a certain part, modifing some expression and dynamics marking, changing keys or the melody a bit because singer can't reach the highest or lowest notes). The director wrote down "MEMO" of that perticular changes...
Later, you find the original scores and "memos," and wanted the perform the piece and you found the "memo" very usuful.
 
Can you perform "the piece"? Yes, you can. (This can apply to the pieces with no scores published).
 
Again, although the right to make derivative works (arrangments) resides in the copyright owner, practical modification has always been done in recording and performance, and will continue to be. Otherwise, most performances and recordings in the US would cease...
on April 21, 2010 6:08pm
Practical modifications to an existing score (baritones, you take the second tenor note) and arranging are two different things.
 
Yes, arrangers should place in their folders their permission letters. Also, publishers require specific copyright information to be placed on the arrangement as well.  It usually begins with the original copyright date and owners and then says, "This arrangement copyright __date__" and the copyright information of the owner of the copyright again.
 
Usually the letters will give you performance permission for ONE performance. If you do performances in the future, you usually have to pay a per copy price again.
 
If these arrangements do not have a permission letter and the copyright information on them, get rid of them!
Regardless of whether or not you agree with the copyright law, thank you for your integrity in following the law.
 
Susan Nace
The Harker School
San Jose, CA
on April 21, 2010 7:59pm
Joseph & others:  There are two different concepts that are being confused here, and it's important to understand the differences.
 
First, there's a specific provision in the LAW that allows a "suitable arrangement" to be made for a recording.  (That isn't the exact wording, and I don't have it handy.)  There is NO such provision regarding live performance.  This is illogical, but that's the way it is.
 
Second, there's a provision in the FAIR USE GUIDELINES (which are NOT part of the law itself) that allows legally-purchased copies of a piece to be "edited or simplified" for performance (and I think that's pretty close to the exact wording).  Now that isn't the same as obtaining permission to ARRANGE, but it sort of opens the door to interpretation.  And the law is all about interpretation, and decisions which establish which interpretations are correct.
 
And third, I have to say I find the concept of "keeping the letter of permission in the folder with the music" pretty bizarre.  That letter is a legal document and belongs in a safe deposit box!  The permission should be stated as part of the required copyright information ON the music, as someone suggested.  And in fact the permission would likely have been given to the arranger and not to the organization, so it would properly have been retained by the arranger.  But if no permission was obtained, unless the work is public domain, then what everyone has said is true.
 
And as to whether such a letter specifies a certain number of performances or not, that's a matter of negotiation.  The Music Publisher's Association may have a "standard" form, but ANYTHING can be negotiated if you take the trouble.  There IS no standard form, in legal terms.
 
All the best,
John
 
 
on April 29, 2010 10:48am
First, thank you all for your help.  I expected what the answer would be.  Here is an example of what the issue is - let's say we took the West Side Medley for SATB and rearranged it for men's chorus or take the melody to God Bless the USA and arranged it for men's chorus.  My opinion, based on your replies, makes those pieces illegal, correct?
on April 29, 2010 1:39pm
Joseph:  Actually NOTHING involving copyight is that simple!  If you bought legal copies of the SATB West Side Story Medley and then made adjustments by assigning other voices to different lines, that's legal under Fair Use.  Whether it would be legal to write out your changes is a question that is not at all clear.  And what would be illegal is to try to sell or otherwise distribute your edited version.
 
"God Bless" is an entirely different question.  It would require permission to make a derivative work (i.e., an "arrangement").  And that, of course, is the important point.  And it comes under "Things We Should Have Learned in Kindergarten":  if you want to play with someone else's toys, ask permission!
 
All the best,
John
 
on August 1, 2010 9:52am
My question is partially related on this topic. But, I personally found a problem when I went to search at the Copyright database for the author of the"Carol of the Bells) (http://www.copyright.gov/records/)
 
As I entered the title, I found more than 150 registrations under the same title. I need to request permission to write an arrangement of this Carol. But, who do I suppose to contact? if I found more than 150 registrations, and most of them under the category "arrangement", so, I am confused here and I need your help.  I could go ahead and also register my own arrangement too and It would be copyrighted too?
 
David 
on August 1, 2010 11:07am
Hi, David.  Your confusion is understandable!  But the correct answer to your question is "definitely maybe"!!
 
To explain:  I seem to remember that the original of "Carol of the Bells" was Russian or Ukranian, or some such thing, and a quick Google confirms that:  ""Carol of the Bells" (also known as the "Ukrainian Bell Carol") is a choral miniature work originally composed by the Ukrainian composer Mykola Dmytrovych Leontovych. Throughout the composition, Leontovych used a four note motif as an ostinato which was taken from an ancient pagan Ukrainian New Year's chant known in Ukrainian as "Shchedryk" [the Generous One]. The composer created the piece as an assignment for a harmony course he was taking by correspondence in the use of an ostinato. The original work was intended to be sung a cappella by mixed choir. Two other variants of the composition; one for woman's choir and another for children's choir with piano accompaniment were also created by the composer."
 
But the most significant thing is this:  "The "Carol of the Bells" was premiered in December 1916 by a choral group made up of students at Kiev University. It was introduced to Western audiences by the Ukrainian National Chorus during its concert tour of Europe and the Americas, where it premiered in the United States on October 5, 1921 at Carnegie Hall. It was later adapted into an English language version by Peter Wilhousky in the 1930s, and to this day is performed and sung worldwide during the Christmas season. An alternate English version ("Ring, Christmas Bells") featuring more Nativity-based lyrics, written by Minna Louise Hohman in 1947, is also widely performed.[1]"  [Quotations are from Wikipedia.]
 
Now what this tells us is that the original should be in the Public Domain in the U.S., and therefore it is free to be arranged by anyone, which is why you have found so many versions!  However, the English words by Peter Wilhousky are still under copyright, so you would need permission to use those words (or the later lyrics from 1947).
 
I know this sounds picky, but it's the stiuation.  And the fact that so many arrangements ARE on the market suggests that the Wilhousky lyrics have been used with permission many times by many arrangers.  (Of course this is all out the window if the original was among the Russian works to which copyright was returned several years ago, in which case the music itself would also be under copyright, but since it was premiered the year BEFORE the Communist revolution that is probably not the case.)
 
Nobody said the answer would be easy!!!
 
All the best,
John
on August 1, 2010 6:07pm
Thank you Robert and John, I begin to see some light at the end of the tunnel. My composition teacher was right when he said: "It's easier to write your own music than arrange someone else" - I understand better now. Thank you!
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