Copyright Law when It Comes to Fan Arrangements of Popular Songs

[spartan124]

So we all see fan arrangements of popular songs. How does this work? How are people able to take a popular song (i.e. hallelujah by leonard cohen, just for example) and change it (a little or alot) and have it be "legal"?

What are the details of, limitations of, and protections in place both for and against "fan arrangements"? Could i just play a fan arrangement of a song on youtube for example (No monetization) and would i be infringing on leonard cohen AND/OR the fan that arranged that particular fan arrangement? Just one or the other? Perhaps neither?

Any and all details of copyright law as it pertains to fan arrangements is appreciated and thank you for your time.

 

[FlyingRon]

Leonard Cohen is Canadian by the way, which is somewhat outside of the scope of this forum, though his works are covered by US copyright. What follows is restricted to US law.

There's no amount of "modification" that will make your song free of the original composer's copyright. There is no provision in the regulations for being a fan. Your modifications to his works are what are called derivative work (if they are not trivial, many simple "rearrangements" do not constitute sufficient original work under the law to be protected).

The question is what do you want to do with the works you are deriving. If you want to do it purely for your personal use and not publicly perform or distribute, nobody is going to get worked up over the copying.

If you are going to publicly perform a copyrighted work (or work derived from one), you need to pay the performance royalties. Most of the professionals are covered by a Performing Rights Organization (ASCAP, BMI, or SESAC in the US, SOCAN in Canada). Usually the venue (the radio station, the music hall, the college campus, etc...) handles obtaining this license. Information is nicely available on the website of these organizations (just stick .com on the end of their name).

If you are going to make your own phonorecord (including CD's, tapes, and digital downloads) "covers" of songs previously released on phonorecord, the US has a statutory, compulsory royalty that you can pay to license those copies. Most of the industry uses the Harry Fox Agency (again harryfox.com has lots of info about this) to collect these.

To do just about anything else (selling sheet music, using the music in a dramatic presentation, movies scores), you need explicit permission from the copyright holder which often is not the composer or the artist but the "music publisher" which is often aligned with the record company.

 

[single317dad]

While Ron's response contains a lot of technical correctness (the best kind of correctness!), the reality is that most "fan-made arrangements" probably infringe on the original work. Not only arrangements, but videos with copyrighted works playing in the background, musical scores and performances applied directly as audio tracks, and video/photo overlays have all been found infringing in certain cases. Many, many of these infringing works are removed from Youtube every day. Many are not.

If Youtube does not receive a complaint about a particular video, they will not remove it, as policing the ~300 hours of video posted to Youtube every minute would be an impossible task. They may receive complaints by several different mechanisms, including manual reporting (someone sees your video and reports it) or automatic reporting (a rights owner or their representative uses an automated system to download videos and analyze them for infringing content; much more common), or Google's own ContentID system.

Youtube has agreements in place with many of the biggest rights holders to assume their automated systems are correct unless proven otherwise. This is why you occasionally see some popular videos which do not infringe taken down after a false DMCA claim. Automated systems which analyze audio and video are quite prone to false positives and negatives. At any time, now or in the future, a rights holder can step in with a new automated system (or, more likely, add their content to one of the existing systems), and all their flagged content will now be removed by Youtube.

That a particular performance has many infringing derivative works currently posted on a major social video site is indicative that the performance in question is not currently searched by any of the automated systems. When it is added, all those videos will be removed, and their creators will surely lament their removal. Usually, there is no followup legal action unless someone repeatedly attempts to circumvent the removal system, is a particularly egregious violator, or has gained notable profit through the revenue sharing system. That said, the rights holder certainly could sue each and every violator, it just wouldn't likely be worth their time to do so.

 

[quincy]

So we all see fan arrangements of popular songs. How does this work? How are people able to take a popular song (i.e. hallelujah by leonard cohen, just for example) and change it (a little or alot) and have it be "legal"?

What are the details of, limitations of, and protections in place both for and against "fan arrangements"? Could i just play a fan arrangement of a song on youtube for example (No monetization) and would i be infringing on leonard cohen AND/OR the fan that arranged that particular fan arrangement? Just one or the other? Perhaps neither?

Any and all details of copyright law as it pertains to fan arrangements is appreciated and thank you for your time.

To avoid ALL legal risk, the only time you can use works created by someone else without permission from the author of the work is if the work has fully passed into the public domain and no other rights exist in the work (e.g., trademark rights).

That said, there are ways to use another's copyrighted work without the author's permission or acquiring a license to use the material. These, however, come with legal risks that need to be considered carefully.

Following is a link is to a 2015 comprehensive look at the fair use doctrine in the US as it applies to online videos. It is published by the American University in Washington D.C.'s Center for Media and Social Impact.

"Code of Best Practices in Fair Use of Online Video:" http://www.cmsimpact.org/fair-use/related-materials/codes/code-best-practices-fair-use-online-videos

It is important to note that "fair use" is a defense to copyright infringement that is recognized in the US and, although other countries have similar provisions in their copyright laws, these provisions vary from the US's fair use in significant ways. Because you did not mention the name of your country, the information provided by FlyingRon and single317dad and that is provided in my post may or may not apply to you. Should you live outside the US, you should consult with an IP professional in your area for advice on any video you are thinking of publishing online.

 

[FlyingRon]

I have to say that some of what SingeDad says is right, but other things are wrong. YouTube is not a good yardstick. Google (which owns YouTube) has tons of lawyers. You do not. YouTube does an extensive filtering of uploaded videos. I sat through a technical presentation by the Google VP in charge of YouTube. They do detect a lot automatically. Much of what makes it is because they have agreements with the copyright owner to do some cross marketing (typically inserting a link to sell the song to the viewer). In other cases, they have standing orders to reject such videos. In other, they let the DMCA rules play their course.

Again, I could write a book on music IP law. As I stated, it comes down to what you want to do with these "arrangements" (and just what you mean by arrangement...in my parlance, arrangement means scoring the composition for a particular combination of performers rather than makeing mixes or other edits of the piece).

As I stated, there are certain narrow places where you can get by under compulsory or blanket licensing. In others, Fair Use may apply. In others, you're risking an infringement lawsuit.

Until the OP comes back and tells us just what he intends to do, there's not really anything specific we can tell him.

 

[quincy]

... Any and all details of copyright law as it pertains to fan arrangements is appreciated and thank you for your time.

According to what spartan124 wrote in his original post, he is not inquiring about a specific video but instead is looking for "any and all details of copyright law."

Simple enough and easily covered in a few forum posts.

YouTube actually provides video creators with a lot of information on copyright laws and on what can happen to published videos that use copyrighted music without authorization. Here is a link to YouTube's copyright information page, which provides links to additional information: https://www.youtube.com/yt/copyright/

 

[spartan124]

Leonard Cohen is Canadian by the way, which is somewhat outside of the scope of this forum, though his works are covered by US copyright. What follows is restricted to US law.

There's no amount of "modification" that will make your song free of the original composer's copyright. There is no provision in the regulations for being a fan. Your modifications to his works are what are called derivative work (if they are not trivial, many simple "rearrangements" do not constitute sufficient original work under the law to be protected).

The question is what do you want to do with the works you are deriving. If you want to do it purely for your personal use and not publicly perform or distribute, nobody is going to get worked up over the copying.

If you are going to publicly perform a copyrighted work (or work derived from one), you need to pay the performance royalties. Most of the professionals are covered by a Performing Rights Organization (ASCAP, BMI, or SESAC in the US, SOCAN in Canada). Usually the venue (the radio station, the music hall, the college campus, etc...) handles obtaining this license. Information is nicely available on the website of these organizations (just stick .com on the end of their name).

If you are going to make your own phonorecord (including CD's, tapes, and digital downloads) "covers" of songs previously released on phonorecord, the US has a statutory, compulsory royalty that you can pay to license those copies. Most of the industry uses the Harry Fox Agency (again harryfox.com has lots of info about this) to collect these.

To do just about anything else (selling sheet music, using the music in a dramatic presentation, movies scores), you need explicit permission from the copyright holder which often is not the composer or the artist but the "music publisher" which is often aligned with the record company.

Wow thank you very much! So if i were to play a fan's arrangement off of musescore (And by arrangement yes i mean a fan created score or remix / edit of the actual melody/song. This is what i have constantly heard heard these called, if anyone has a better term please educate me) of leonard cohen's hallelujah (Again want to be clear, just using this as an example) then as a derivative work - in which it is very unlikely that a fan would have a license to derive a work - The fan has no real right to do so and thus the arrangement would have no protection but would still fall under the copyright of leonard cohen / publisher(s) as it is obviously the same song just edited?

And as youtube allows you to play hallelujah as long as you don't monetize it, would i be legally ok in playing the fan's score/arrangement of hallelujah?

Is it possible that if a fan were to live in another country and thus have his derivative work (possibly) originate in another country that that arrangement would be subject to additional protections or is the respective copyright law (U.S. i believe in this hypothetical case) the only law that is observed?


(I am not saying i intend to do any of this, just examples and hypotheticals so that i can try and understand it a bit better)

 

[spartan124]

Just wanted to add that you guys are very helpful, polite, informative and capable of having a nice discussion. I thank you very much for your time and haven't had luck in discussing this until i ran upon this forum lol.

Thanks again,
-spartan

 

[FlyingRon]

It may be a derivative work. It would depend on the amount of creative input into making it. But I suspect of the magnitude you're talking about, it would be. Again, while creating the derivative is itself a copy, the real issue comes from what you intend to do with it.

Putting it on YouTube is a public performance (and possibly synchronization if you use it with video imagery). It makes little difference whether you monetize it or not.

The US (though a relatively late adopter) is a signatory of an international copyright treaty called the Berne Convention. This protects works created under copyright in one member country in the others. The sticky part is that blanket licensing (mechanical rights, performance rights) may not cover a work created in a foreign country. However, the PROs like ASCAP and BMI and their Canadian equivalent SOCAN are realizing that the internet is a more amorphous about borders than the traditional production of sheet music and records and teaming up to handle such international issues under a new banner (MusicMark).

 

[quincy]

Derivative work: A work based on preexisting material with original creative material added. Creating derivatives is one of the exclusive rights held by the copyright holder so to make a derivative, one needs to obtain permission from the copyright holder.

Transformative work: A work that takes bits and pieces from an original work and creates a new work that presents a new or different meaning, or new expression, or a new message to the original. The use of portions of a copyrighted work to create a new work can be a "fair use" of the copyrighted material (but whether a work is transformative or a derivative is often left for a court to decide).

... So if i were to play a fan's arrangement off of musescore ... then as a derivative work ... The fan has no real right to do so and thus the arrangement would have no protection but would still fall under the copyright of leonard cohen / publisher(s) as it is obviously the same song just edited?

Yes, using the fan's arrangement of Hallelujah would infringe on the Hallelujah rights-holder's rights. Making derivatives is one of the exclusive rights held by the copyright holder.

And as youtube allows you to play hallelujah as long as you don't monetize it, would i be legally ok in playing the fan's score/arrangement of hallelujah?

If Hallelujah is one of the songs YouTube has acquired a limited license to use (i.e., YouTube has paid the rights-holder to allow for non-commercial uses of the music by YouTube-ers), then you can use the music. Unless the fan has created a "transformative work," the fan has acquired no rights in his work. The rights remain with the Hallelujah rights holder.

Please read the YouTube link I provided.

Is it possible that if a fan were to live in another country and thus have his derivative work (possibly) originate in another country that that arrangement would be subject to additional protections or is the respective copyright law (U.S. i believe in this hypothetical case) the only law that is observed?

It is unlikely there would be "additional protections" offered a fan in another country. It really depends on the country. If the fan lives outside the US, the fan needs to learn the laws of that country because that is the country the fan will be sued in, in the fan's courts and under the laws of the fan's country, should the fan's use of a copyrighted work infringe on the copyrights in a work and the copyright holder decides to take legal action against the fan.

You might want to search online for the Michelle Phan copyright infringement lawsuit (Phan of YouTube makeup video fame). She was sued for her unauthorized use of copyrighted music. The copyright holder - Ultra Records - was seeking all profits Phan made with her videos.

And, again, please read the links that were provided for your benefit. The answers to the questions you are asking here can be found there.