Copyright - Staying on the Right Side of the Law

[davewerden]

We had an extensive discussion of copyright issues in a thread on another topic. I'll move the posts here. You may find the discussion enlightening!

[pam]

Originally posted by: THM

* bump *Â*

That "Great is Thy Faithfulness" transcription is wonderful. Â*Is the finale file of the euphonium part or PDF available? Â*I have the link for the piano part for our church organist/pianist and would buy a second copy for me, or buy a transcription from you, or both. Â*Â*

This arrangement is a lot less "gooey" than the easy Church solo stuff that I found before I found here.

Thanks,

Much as I hate to be the bad cop, I think it's important to recognize that transcribing a copyrighted work without prior permission of the copyright holder is an infringement of the copyright, and that distribution of an unauthorized transcription, even if no money or other consideration, changes hands, deprives the copyright holder, and ultimately the composer or arranger of the original work, of their exclusive rights to exploit their work and to control the production of derivative works.

Churches (and, unfortunately, evangelical churches especially) have a not-undeservedly bad reputation for infringing copyrights. Please consider not just the legal, but also the ethical implications of distributing unauthorized transcriptions of copyrighted works.

[THM]

* bump *

That "Great is Thy Faithfulness" transcription is wonderful. Is the finale file of the euphonium part or PDF available? I have the link for the piano part for our church organist/pianist and would buy a second copy for me, or buy a transcription from you, or both.

This arrangement is a lot less "gooey" than the easy Church solo stuff that I found before I found here.



Thanks,

[RickF]

Just noticed this reply...

Good point Pam,

Just to be clear, I contacted the arranger Cindy Berry through the publicist who replied to me regarding this. Ms. Cindy Berry wrote...

"Dear Rick,
Thanks so much for your kind words; I appreciate them. I don't think you need to get "official permission" to transcribe the melody line in the way that you have stated. If permission was needed, you would have to contact the publisher. In this case, I just don't think it's necessary. But thanks for asking. :-) Continued blessings to you as you use your talents for our Lord.
Cindy Berry"

[pam]

Perhaps one of the publishers or composer/arrangers who contribute to the board will chime in, but if music publishing is like academic publishing, it depends on who actually owns the copyright. I've published about a dozen scholarly articles in biblical studies and several in popular magazines, and in every case, the publisher owns the copyright, so if I want to include one of those articles in a course reading packet or to include an extended portion in another publication (book, article, multimedia presentation, etc.), I have to obtain permission from the publisher to do so. (I have a colleague who was refused permission to include an article she had published in an encyclopedia she was co-editing because the publisher was preparing a competing encyclopedia.)

I've dabbled in arranging from time to time, and from what I understand, very few composers/arranger whose works are offered for sale own the copyright to those works, the exception being those who are self-published (and even self-published composers/arrangers typically create a separate legal entity to administer their copyrights). Typically, a composer/arranger assigns the copyright to a publisher for a financial consideration (typically royalties). In exchange, the publisher assumes the financial risk and expense of registering the copyright, printing, marketing, and distributing copies. Under that arrangement, the composer/arranger typically does not own the copyright, and therefore cannot grant permission to make derivative works. Ms. Berry's statement, "If permission was needed, you would have to contact the publisher" seems to imply that's the case with her relationship with Hope Publishing.

In this instance, you may not need permission from the copyright holder to transcribe just the melody line for your own use, and it's debatable whether or not you would need permission to set it to the accompaniment, again for your own use; however, you would almost certainly need permission from the copyright holder (in this case, Hope Publishing Co) to distribute your transcription, whether or not you charged for it, as distributing the transcription inevitably diminishes the potential market for any existing or future instrumental arrangement they already offer or may offer in the future.

[davewerden]

I'm not a lawyer, but...

I think in this case Rick is OK. The arranger saying that he didn't need permission probably referred to the fact that Rick was, essentially, doing his own arrangement of the melody, which I assume is in Public Domain. I further assume he did not use any material that was unique to that particular arrangement.

[RickF]

Thanks Dave,

Yes, I just transcribed the melody from the arrangement for me to play while the accompanist played from Cindy Berry's arrangement.

[pam]

I'm not sure it's that clear-cut.

The impression I got from his original post was that he transcribed the melody from an existing arrangement rather than made a new arrangement, with the intention of playing it over the piano accomp from the exemplar:

I recently purchased an arrangement (medley) of "Great is Thy Faithfulness" and "My Jesus I Love Thee". It's a choral arr by Cindy Berry. It has a beautiful piano accomp and starts in Eb - but in 4/4... which is a setup for the next melody of "My Jesus I Love Thee". Then changes key up a step to 'F' and in 3/4 to end with "Great is Thy Faithfulness". It's about 4-1/2 mins long. I transcribed the melody for euph on Finale and think this will be a nice offertory or special music piece. This would also be a great quartet piece as the harmonies for voice are beautiful.

The problem is setting Great Is Thy Faithfulness in 4/4. I suspect that that, coupled with Ms. Berry's deployment of half notes and rests to fill out 4 beat measures, is enough of a fingerprint to establish both uniqueness and identity. Add to that the juxtaposition with My Jesus I Love Thee and the modulation to Great Is Thy Faithfulness in 3/4, and I think it would be extremely difficult to make the argument that this is an arrangement as opposed to simple transcription.

The larger issue, though, is distribution of the transcription.

Under the doctrine of first sale exhaustion of rights, Rick could legally sell or give away five of the six copies he purchased (assuming he wants to keep a copy for his own future use; if not, he could sell/give away all six, but only if he did not retain a copy), for whatever amount someone was willing to pay, however, first sale exhaustion only applies to the legitimate, non-infringing copies (so he could not legally sell or give away PDFs or scanned copies of the original or notation files (Finale, Sibelius, MIDI, etc.) that could be used to reproduce the original, for example), so if his transcription does infringe Hope Publishing's copyright, he could not legally sell or give away copies of the transcription along with legitimate, non-infringing copies.

[RickF]

Pam,

You're entitled to your opinion, but like Ms. Cindy Berry said in her email, she didn't think there was any problem in me 'transcribing the melody line in the way that I stated'. I DID NOT change the arrangement.

[pam]

With all due respect, Rick, unless Ms Berry owns the copyright, she has neither the right, the power, nor the authority to grant permission for an arrangement, since the The U.S. Copyright Act grants certain exclusive rights to the owner of a copyright in a work, one of which is the right to prepare derivative works based on the copyrighted work (US Code, TITLE 17, CHAPTER 1 § 106. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS, (2))

The copyright notice printed on the first page of the folio clearly lists Hope Publishing, not Ms Berry, as the owner of the copyright for her arrangement.

That that is the case may clearly be seen in Hope Publishing's Copyright FAQ, which may be found under the "Permissions" tab on the front page of their website, states:

4. HOW DO I FIND OUT WHO THE COPYRIGHT OWNER IS?

The copyright owner's name is listed in the copyright notice. Copyright notices should appear on all reproductions of copyrighted works. On printed music the notice is generally found on the bottom of the first page of music. On recordings the notice can usually be found on the packaging. The copyright notice will contain the word "copyright" or the symbol © (musical compositions and printed material) or (p) (for sound recordings), followed by the year of first publication, and the name of the copyright owner.

That ownership of the copyright, and, consequently, the right to prepare and authorize the preparation of derivative works, belongs to Hope Publishing and not to Ms Berry is not a matter of opinion: that's a matter of fact--one that Ms Berry implicitly acknowledges by stating that she does not "think that 'official permission' is needed," and qualifying that by stating "If permission was needed, you would have to contact the publisher," rather than simply granting permission, which would be entirely within her right and her power to grant if she did, in fact, own the copyright.

The fact of the matter is that only the owner of a copyright can grant permission to make a derivative work, and few composers or arrangers who are not self-published retain ownership of the copyrights to their published works. In this instance, Ms Berry does not, so her opinion is neither probative nor definitive.