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Music licensing fees

I have, on a few occasions, created arrangements of music still under copyright.  I always go through the process of obtaining a license (or in some cases, attempting to obtain a license, as there have been some cases where I could not locate the copyright holder based on the listed copyright holder on the score, or via an internet search).  The fees are rather all over the place, from sometimes free use for a funeral, to one this week for $100 for my request to create a handbell arrangement for my church for one time use.  The license holder does grant the license for reusable copies, up to 100, but I wil never likely need more than 10.  I have appealed for a reduced fee, but haven't yet heard back.
 
Some of these fees seem really a bit over the top to me, and definitely over my budget, which has serious limits.  I am wondering what some of the rest of you might know about how these fees get set, or if there are strategies to employ to reduce them if you have limits.  Obviously, the easy answer is "do something else", but I am wondering what might be possible or what might be known.  It seems to me that when these fees far exceed what you would pay for the sheet music, and you, the arranger, have to do the actual writing.  I am a composer myself, and of course I want to do the right thing.  But it is hard to feel excitied about it when it is such a stretch.
 
Thanks for your advice and comments!
 
Nan Beth Walton
Replies (15): Threaded | Chronological
on February 2, 2013 5:39pm
Nan Beth:  The law sets statutory fees (that is, fees that are actually established in the law itself) for only ONE of the several rights included in the package of copyright rights, the right to make a recording.  That fee was set in the 1909 revision of the law, and has since been reviewed periodically and raised periodically by a committee charged with that responsibility.
 
ALL other rights and royalties are negotiated.  All of them.  There are no set fees in the law, and there are no industry-wide set fees.  You can ask for permission, but it is entirely up to the copyright owner to say yes, to say yes and ask for a reasonable fee, to say no, or to say yes but ask for an entirely unresonable fee to discourage you from using their copyrighted property.  And your budget or the cost of purchasing existing arrangements is simply irrelevant to this, although the use you intend for the arrangement may indeed lead to reduced fees.  But you're asking to use someone else's property, and they aren't required to give you that permission.
 
When my wife was editing folksong arrangements for a couple of books published by OAKE back in the '80s, we dutifully wrote to every copyright owner we could identify, unless we could find the song in at least two published sources without copyright attribution.  Some answered promptly, some never answered at all, and a couple answered too late for us to include the arrangements in the books.  And since we had no funding for royalties we were ONLY able to use those arrangements which were in the public domain or for which we had written permission for use without payment.  In one case where we couldn't get a satifactory answer another Kodaly teacher was kind enough to go to the Folk Archive of the Library of Congress and transcribe the song from the archive recordings (which are ALL public domain by law).  And in one case we got a very nasty letter back from someone who felt that because he had published public domain folk songs in arrangements he therefore owned those songs--a fundamental misunderstanding of the copyright law and the public domain itself.
All the best,
John
on February 2, 2013 8:59pm
Thanks, John.
 
That these fees are negotiable is helpful.  I am attempting that with my most recent situation, and pray that I will be successful.
 
Nan
Applauded by an audience of 2
on February 3, 2013 8:22am
One additional factor that is often misunderstood.  Even when permission to arrange is given (and there may be very strict limitations on the use that can be made of such an arrangement), the arrangement is not the property of the arranger UNLESS there is a statement in writing to that effect.  Arrangements are "derivative works" under the copyright law, and any arrangement is the property of the owner of the original copyrighted work from which the arrangement is derived.
 
This is something that many arrangers--especially jazz arrangers--have ignored over the years, but it is something that publishers CAN NOT ignore, not least because they may want to issue their own arrangement of such a piece in the future and they are not going to give up their right to do so.
John
on February 4, 2013 6:41am
I am quite clear on what the permissions cover, and do my very best to make certain that everyone I work with knows this, too, though as you can imagine, a lot of my church members don't understand why churches cannot have permission for free.  Because they are my arrangements, I pay the fee out of my own pocket, rather than having the church pay.  Nearly all of the permissions have been for a single use, only.  Some have come with an ability to request additional use each time we want to use it, with an assurrance that the permision will be granted upon receipt of the fee.  I generally destroy all evidence of the one-time use arrangments, including deleting them from my computer files (many of these have been for specific funeral services, anyway).  For those that we could have an additional uses, I keep three copies of the license, on my computer, in my permissions file at work, and one copy stapled to the manila folder containing the music. 
 
FYI. a person in the congregation so enjoyed the piece of my recent arrangement that she is paying the fee!
 
Nan
Applauded by an audience of 1
on February 3, 2013 5:21am
I'm interested to find this out, as well. A recent arrangement we did of.a Paul Simon song cost us $185 for the permission to arrange!

Chewyn Ambuter

on February 3, 2013 6:01am
Nan Beth,
 
John's response is right on the mark. About the only thing I would add would be a more direct answer to your question about how such fees are set. Much depends on the size and organization of the company involved. Regardless of size, any company will want a fee sufficient to cover their actual expenses to issue the license. When the firm is large, that can be more than one might think. First, they're going to have to research the title to be certain that they are actually authorized to grant such permission (because for a certain percentage of their publications they won't be). Then, respond to your correspondence with an actual permission. Next they have to file and keep track of that permission so that, if challenged, they can document it. Finally, if they owe a percentage of the fee to someone else, they have to determine the percentage and issue a check of their own. With some companies and some titles, all of this may add up to a substantial chunk of time for one or more employees, hence, what seems like a large fee to you and me. You may be reasonably certain that, regardless of the fee, the whole process is not going to add up to much profit for the company at the end of the year. Quite possibly it will be handled at a break even or at a net loss.
 
You can see that they have a real and reasonable incentive to set the fee sufficiently high that trivial or casual uses are not encouraged.
 
I hope this background helps make the picture a bit clearer.
 
Dan Gawthrop
 
Applauded by an audience of 5
on February 4, 2013 6:42am
Thanks, Dan, that is quite interesting and does ease my spirit a bit!
on February 4, 2013 7:02am
This is an excellent explanation, Dan, and one that I will share with my employers (who sometimes look like they will faint when the "permission to arrange" bill arrives!).
 
I have found that some publishers are open to negotiation when it comes to renting music - which also involves significant labor - but I have tried in vain to negotiate arrangement licensing fees. As such, I think being a deterrent is also a factor in the pricing. I've also noticed that the fees on average have increased significantly. A decade ago it cost around $50 per song, whereas nowdays it tends to be in the realm of $150 - $200. I would be interested to learn why the licensing fees have increased so dramatically - I doubt the employees at the publishing companies are being paid three times as much!
 
I have also found that publishers have a tendency to pick and choose to whom they will grant permission. The Bernstein Estate, for instance, granted permission for me to arrange a song for a large, well-known organization, but denied permission for the same song (same arranger) for a smaller, lesser-known organization.
 
The inconsistencies in this area of our work is certainly frustrating, but as John points out, the property owners can do as they wish. On the bright side, when we compose music, we also have those rights.
 
- Kathleen
 
Dr. Kathleen McGuire
on February 4, 2013 7:39am
Thank you all for an interesting thread. I am reading with a sinking feeling because, while I've arranged many songs for Kaia and we've always paid fees for CD sales, we've never paid anyone for the right to arrange. I've also sold some of my arrangements.
 
From what you all are saying, it sounds like we don't actually have the right to do any arrangement unless we pay a fee first -- is that right? And that I don't have the right to license or publish my arrangements?
 
Ack!
Cairril
on February 4, 2013 9:23am
Cairril:  You do not have the right to arrange copyrighted music unless you have permission, which may or may not require paying a fee, and which may or may not carry some restrictions on the use of that arrangement.  And the copyright owner can deny permission for any reason at all, or for NO stated reason!  And selling your arrangements is a clear copyright violation because you're depriving the owner of the copyright of income.  (Sweet Adelines, Inc., is very helpful in getting permissions for their arrangers to arrange copyrighted works, and in facilitating the payment of royalties from those arrangements to the copyright owners who gives the permissions.)
 
And yes, your arrangements do not belong to you but to the owner of the original copyright, unless you have a contract that says otherwise.  But remember that all this applies ONLY to music currently covered by copyright, and not to anything in the public domain.  And the useful rule of thumb is that anything copyrighted prior to 1923 in the U.S. is PD (although it's actually a lot more complicated than that!).
All the best,
John
Applauded by an audience of 2
on February 5, 2013 5:17am
Tresona Multimedia, Alfred Music, and Hal Leonard Corporation represent most publishers of popular music and have online forms where one can seek licenses for permission to arrange. It can take anywhere from a few days to a few months to secure a license, depending on the piece of music, but most will at least let you know in short order how long it is likely to be.
 
I recommend securing the license before starting work arranging any song that is still under copyright (ie not in the public domain). I've learned the hard way how heart-breaking it can be to spend hours on an arrangemet only to have the publisher turn down the permission request, or worse yet, to have a client say they will take care of the licensing only to discover - via a perturbed publisher - that they didn't follow through. The latter isn't as unusual as one might think!
 
FYI, when an arranger is hired by a client it all appears a bit grey as to where the onus lies for securing the license (different publishers will tell you different things in this regard), so I tend to err on the side of caution and ensure the licenses have been secured before I start work on arrangements.
 
It should also be noted that permission licenses tend to be "single use" for one organization/client only, so it does not allow arrangements to be re-used (including loaned) by a different organization. If an arrangement is being created for the purpose of multi-use, it should be stated up front in the request process.
 
My theory is that if we all seek legal permission, eventually the publishers may want to publish our work or at least they will become more likely to grant permission. 
 
Optimistically,
Kathleen 
on February 5, 2013 8:17am
Kathleen:  I *THINK* this is valid, but someone else may know better than I.  If you are an arranger working "for hire," you are not responsible for securing permission to arrange.  That is the responsibility of the person paying you for your work.  (They may ask you to take care of it, of course, but if so get it in writing!)
 
On a larger scale this also affects the payment of ASCAP and BMI fees for licensing public performances.  It is the producer of the event who has responsibility for purchasing the licenses.  But you're certainly smart to want to know in advance if the person hiring you has actually followed through.
 
As in all matters that involve legal responsibility, your best course and your best defense in case things fall apart is to GET IT IN WRITING, spelling out who has responsibility for what.
All the best,
John
on February 5, 2013 5:26am
A slight amendment to my comment from yesterday. I remembered that I HAVE had a little success negotiating a permission to arrange fee. I explained the purpose of the event (it was an international choral festival). The publisher was in Australia and the festival was in the US. The publisher (and composer, whom I had contacted first) were so excited to have the piece performed at the event, they charged only a modest fee. The work was not obscure and had been a top ten hit.
 
So it's not completely beyond the realm of possibility that the fees can be negotiated, although it's definitely not a common occurrence.
 
- Kathleen
on February 15, 2013 5:54am
I'm sorry to re-open this thread but I've talked to the person who handles licensing for our group and she says arrangement rights are covered by payments to Harry Fox, ASCAP, etc. It's called a mechanical license. Can anyone clarify this for me, please?
 
Thanks,
Cairril
on February 15, 2013 8:58am
Cairril:  What you were told is at best half true.  Harry Fox does license RECORDINGS of copyrighted works, and the license that does so is indeed called a mechanical license.  (Historically this goes back to the copyright law revision of 1909, when Congress moved to stop the monopoly on the production of PIANO ROLLS--thus "mechanical.")  And thanks to a very specific clause in the copyright law, the mechanical license DOES include the right to make a "suitable" arrangment FOR THAT LICENSED RECORDING ONLY.
 
ASCAP etc. do NOT deal with mechanical licenses, which come under a separate right (the right to recording and to distribute copies of that recording) in the bundle of separate rights covered by the overall concept of "copyright."  They license public performances, and collect the royalties that are due for those public performances.  Two different rights, two different mechanisms for handling those rights under the law, two different sets of licensing/royalty fees.
 
And there is NO "right to make a suitable arrangement" included in the law when it comes to public performances.  Which is why arranging rights must be obtained separately from the copyright owner, and why the fee for those rights must be separately negotiated.  The fees for recording are statutory--that is, they are specified in the law itself.  The fees for arranging are NOT!
 
Your licensing person has conflated two DIFFERENT rights under the copyright law, and assumed that they are handled concurrently, but that is NOT THE CASE.  Each right is sparate and is handled differently.  This is pretty simple copyright information, and is readily available in brochures from both the Copyright Office of the Library of Congress and the Music Publishers Association, and your person needs to get and read those brochures.
All the best,
John
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