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Can I arrange and perform a piece without acquiring permission?

I have made a choral arrangement of a piece of music after transcribing it from You Tube.  I haven't been successful in reaching the artists in order to request permission to arrange and perform. Can I legally program this piece of music?  There is no sheet music published for this song. 
Replies (20): Threaded | Chronological
on October 2, 2012 4:25am
Carol, a crucial point is the following: try to check whether in your country "transcriptions" are disciplined differently from "arrangements", and in case check if your score can be classified as transcription; here in Italy, transcritpions are totally free, you do not have to ask for any permission (you just need to have an official score of the music you are transcribing). Conversely, arrangements have a rigid discipline (in some respects inapplicable, and the sad result is that nobody respects the law). The funny thing is that the formal difference between arrangement and transcription is not at all clear. The matter is real, real complex. From an OPERATIONAL point of view, take into account that after the initial steps (writing an arrangement, sharing it), the crucial point comes when someone performs the arrangment publicly: at that stage it's mandatory and it is right that the copyright holders get paid. This step can and must be controlled. The preliminary steps (writing the arrangements and sharing them) seems to be slippery, whichever perspective you assume. Let me take the occasion for greeting John (Howell) with whom I discussed on this matter in the past: nice to read you again, John!
on October 2, 2012 5:45pm
Good to hear from you, Fabio.  Carol, Fabio brings up an interesting point, but it is not one that applies under U.S. copyright law (and I see that you are in Arizona, U.S.A.).
 
In fact it's even more confusing than Fabio's description suggests, because over the past century or so the generally accepted definitions of "transcription" and "arrangement" have not just been confused with each other, but have actually reversed meanings.  (I researched this about 30 years ago when I first started teaching an arranging course.)
 
But it's irrrelevant because under U.S. copyright law both are considered "derivative versions" of the copyrighted work, and that's the term that is used in the law.  And the creation and distribution of derivative versions is prohibited under the law without permission, subject to some VERY tightly written exceptions either in the law itself or the Fair Use Guidelines.
 
My own working definitions, in case anyone cares, are these.  A "transcription" converts information in one form into another form while attempting to neither add nor lose any inforrmation in the process.  Thus a secretary used to take dictation of the spoken word using shorthand, "transcribe" that shorthand into typescript, and create a written version of the letter.  But the letter ALWAYS gained and lost inforrmation, since the spoken word includes voice inflections and subtle twists of phrase while the written word requires spelling, correction of grammar, choice of homynymns, and punctuation.  On the other hand a "transcription" of a readio broadcast was a recording of that broadcast which could be (and was) flown from the East Coast to the West Coast to be played there after a 2-week delay, and later on a kinescope (film) of a TV broadcast which was treated the same way.
 
An "arrangement," however, is a reworking of the original work, primarily to make it performable by a different musical ensemble, but in the writing of which any of the musical elements of the original can be and are subject to modification and change.
 
Thus an orchestral work may be "transcribed" for concert band, and properly attempt to gain or lose as little information as necessary, but it will always gain or lose some.  But any song may be "arranged" for any kind of ensemble and any of its basic elements modified in the process.
 
And an "edition," just to follow through for completeness, has the purpose of preparing a work for publication, which may or may not involve added intellectual content, while both "transcriptions" and "arrangements" are much more concerned with performance.  In fact one of the huge exceptions under U.S. law is that payment of the statutory fee for permission to record a work INCLUDES the right to make a "suitable" arrangement, although there is no such provision for public performance.
 
There was, in fact, a transition period in about the middle of the 20th century when some musical dictionaries (including the venerable Harvard) cross-referenced the terms "transcription" and "arrangement" and treated them as synonyms.  But a working arranger would never approach them in that way.
 
All the best,
John
on October 3, 2012 7:54am
For the sake of this thread, "Copyright Registration for Derivative Works (US)" might be helpful.
 
To simplify the issue, let's just imagine this situation...
 
1) You knew a piece of music for whatever the reason (maybe you had heard or read it somewhere and remembered it by heart). But you didn't have/own the score of the piece. But, you knew that the piece had been "published" in terms of copyright.
2) You wanted to perform the piece, and you paid the performance royalty (very important).
3) You performed the piece somehow, and there were maybe written memos you made, and the piece might have been different from the original...
 
This situation happens all the time, and in the US, this practice has been traditionally allowed (much much more than any other countries which the "moral right" is stronger), although there is no mention of this situation in the law unlike the mechanical (recording) like John wrote.
 
The right to make derivative works, and the right to reproduce the work belong to the copyright owner. You cannot fool around with this.
You may not make a musical arrangement nor make a copy (score) of the music without the permission from the copyright owner, unless the situation falls into the fair-use.
 
However, you may program the "published music" in your concerts, if you paid the performance royalty. The rest is up to you, and the organization which determines the final say is the court.
on October 5, 2012 4:24am
I have some questions, since I see a gap between what one should do and what one can do, at least here in Italy. Here the subeditions which have the rights for the italian territory seem to be not interested in any non-commercial use of the song. When I contact them for asking the arranging permission, they are not interested in the score, they simply ask me: "which is the financial impact of your operation?" I reply:"0, since I just want to make an arrangement, submit it to some group for free, then they will decide whether or not perform it in some album/concerts, hence the financial impact depends on them". At this stage, subeditions do not go further: in certain cases they stop any communication with me, sometimes telling me not to bother them with such unimportant questions, in other cases they tell me:"ok, do as you prefer, we don't care", some other told me:"it's the group, not you, that has to ask for the permission", some other told me:"you do not need to ask permissions for arrangements". It's a chaos. I had some satisfaction just in one case (plus maybe another one, just in this period), where they wanted to peruse the score, they were satisfied, and gave me an official permission. As you imagine, asking for permissions, then having no replies, or partial replies, experiencing their total boredom in dealing with such a "silly matter", convinced me that I am a "black swan" in a context where everybody basically pays attention to processes that could produce money (but take into account that their perspective is not so easy to blame, since they have to do with italian burocracy, which forces them to lose energies and time, so I understand well they really have no time to waste with me). My general feeling, when I ask for arranging permission, is of bitterness and awarness that it's just a waste of time: as mentioned in my other message, all the attention is shifted on other processes (concerts, albums) which could bring money to copyright owners. My questions are: overthere, in the US, which (average) approach have the copyright owners when they receive arrangement requests? I imagine the situation is different from Italy, but at what extent? If in the US someone asks for an arrangement permissions, he/she gets some answers (positive or negative)? Which is the rate of acceptance of an arrangement? Which is the time the editions take for replying (days, weeks, months....)? I am aware these questions are maybe impossible to answer fully, but if you have some partial answer, I would be grateful.
on October 5, 2012 6:55pm
Fabio:  I would say that in the U.S. there is no "average," there is no "standard," and the situation is completely unpredictable.  It has gotten better (at least faster) now that the Internet is available, but some publishers have offices set up to handle requests for derivative works and others simply do not.
 
Back in the '80s, pre-Internet, my late wife edited two collections of folk song arrangements.  Many of them were clearly in the public domain and presented no problems.  But if we could not find a song in two sources WITHOUT a copyright claim, we did try to track down any copyright owner and obtain permission.  Some replied by letter within a few weeks.  Some never bothered to reply at all.  And at least 2 or 3 did reply but their permissions arrived too late for our publication deadline and those arrangements had to be omitted.
 
But the situation is similar to yours in at least one way.  Procedures are in place to deal with the commercial uses of copyrighted music, and to make it as easy as possible for the copyright owners to collect the royalties they are entitled to.  Many publishers do NOT have precedures in place to deal with non-commercial uses of their copyrights, which makes it difficult for those involved (or wanting to be involved) with non-commercial uses.
 
One specific situation we have here you may not have in Italy.  For decades American football has been associated with American marching bands, and a great many university marching bands have staff arrangers who produce the music for the entire marching season starting six months before the opening games.  The Music Pulishers' Association does have an on-line form to ask for permissions for this kind of arrangement, but I believe that they grant those permissions only for limited and very specific uses of the arrangements and would never consider allowing the arrangers to publish them.  And that is the general approach in the U.S.  A copyright owner has NO REQUIREMENT to grant permission for the use of copyrighted music.  They may choose to grant permission, they may choose to grant permission but require very restrictive conditions for its use, or they may choose to ask for such a high fee for permission that in effect they are denying it.
 
But the one thing about U.S. law that it's important to know is that any derivative work REMAINS THE PROPERTY of the original copyright owner and NOT the arranger, unless there is a very specific contract provision that states otherwise.  Jazz arrangers, military band arrangers, and some others are in the habit of ignoring that simple fact, but that does not change the law itself.
 
All the best,
John
Applauded by an audience of 1
on October 6, 2012 1:37am
Thank you indeed, John. Your message is much more exhaustive than I expected. I forgot this piece of information: here in Italy the association that protects the copyright (SIAE) introduced in 2010, March 22, a new procedure which allows an arranger to deposit officially an arrangement of a song in copyright, provided that he/she obtained a signed approval by the copyright owners: that is welcome, and seems very simple, but there are some complications: signature are not accepted by fax; they have to be original, so you have to use ordinary mail, and a secretary will receive your mail and deliver it to the appropriate person; the new procedure does not allow that you earn nothing (this would simplify the process, at least in my case): you have to reach an agreement on what you, the arranger, have to earn, and this implies discussing with copyright holders, at least mentioning the point.... Nothing is so difficult, but every little step requires time and a minimum of effort. Now, it is not possible to win the inertia, since the necessary ingredient is absent:  no immediate prospect of money = no interest from copyright owners = no possibility of having their signature of approval (they do not say "no": they simply skip the process, as mentioned). So, sadly, this welcome opening by SIAE towards arrangers is not at all effective, except for very few great composers (an arrangement by Ennio Moricone would be immediately met by any copyright owner). Take into account that this difficulty seems to be not limited to single arrangers. As far as I know, small publishers of choral music continue NOT including arrangements of songs in copyright in their book: I guess they experience the same problem as I do. So there is a vast grey area, in every musical genre whose market is small or very small: arrangements of songs in copyright are performed everywhere illegally, sometimes even concerts are performed without paying royalties, but nobody really cares, since the attention is focused on the genres where there is more circulation of money. Best Regards.
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