Copyright Maze

There is a lot of interest and confusion about how to legally arrange works that are protected under copyright.   I’d like to start by saying I am not a lawyer, so just accept the information below with that in mind. 

Navigating the copyright maze

To legally arrange a work under copyright, you need to get permission in writing from the copyright owner or designated copyright administrator.  There are two possible permissions which can be granted simultaneously, the “Permission to Arrange” and the “Permission to sell”.  These are not one in the same, as some schools and other non-profits will seek only “permission to arrange” as they just want to arrange a work for their own performance, not to sell it.  This is the majority of what you will discover when doing a Google search about the topic.  However, I assume here you want to arrange a copyrighted work and sell it to others.

The general process I use is as follows:

1. Determine if permission is required at all.  There are different rules for different counties.  In the US, as of the time of this posting, if the work was written before 1923 it is considered public domain.  For most works composed after 1923 that you might consider arranging, permission is necessary.
2. Find out as much as you can about the pieces as possible, the year it was written, the names of every composers associated (e.g. Lennon and McCartney), etc.
3. Go to the ASCAP website and BMI website and search their online databases to find the publishing contact(s) for that work.  The work will be listed under just one database, not both.  If the work is not in either database, it may not be copyrighted at all.   Note that the publishing contact is usually NOT the person who has composed it.  It is typically a larger publishing company like Hal Leonard and the like.  There can also be more than one contact for a given piece.  In that case, EVERY contact must grant permission in order for you to arrange the work legally.  This must be coordinated well because you don’t want to pay one just to be rejected by another…you will likely be out of the cash with no way to recover it.
4. Reach out to the publishing contact(s) you have found.  Some require you to fill out a form on their website, some to fax, some to email.  The process varies by company.
5. The basic information to provide to the publishing contact can be found in this permission form.
6. You may receive an email, letter by postal mail or no response whatsoever to your request.  It can sometime take days or weeks or months or infinity (no response).  Patience is required here.  Follow up with another communication medium as needed…phone, etc.
7. Once you receive response, the publisher may flat-out reject the request or give approval subject usually to some sort of compensation.  These can take various forms.

• Fixed fee lump sum
• Percentage of sales
• Combination of the two

8.  There may be limitations, which vary by publisher, such as

• May not sell as a PDF
• Permission to sell is up to a maximum number of copies only
• Permission to sell is only for a fixed period of time
• Permission is only for a certain instrumentation
• Permission to sell only in a select geography
• Combination of the above

Notes

• If you work with a sheet music company, they can sometimes seek the copyright permission on your behalf and fund it, so you can avoid out-of-pocket costs.
• Officially, you are not supposed to write one note of an arrangement until after the permission has been granted.
• You will eventually be signing a contract and sending a check to the publisher.  In some cases, the permission is given at no cost, but this is rare.
• A copyright lawyer is probably not required to get through the process, but that is your call.
• The publisher copyright notice will be provided to you and will be required to appear at the bottom of the arrangement.  They really own the arrangement (which is officially known as a “derivative work”), not you.  I have not seen this situation deteriorate into them taking the arrangement and selling it on their own (and paying you nothing for it), but theoretically it could and you’ll have no recourse.
• Keep organized records of your activities and communications as these can easily get lost and confused over the multi-month span of working on various copyright requests:
  • Name of piece
  • Publisher
  • Date when publisher contacted
  • When they responded
  • Summary of their response
  • Date you signed the contract
  • Etc.

How do I know I’m not being ripped off by “the man”?

I’m not really sure.  In most cases, the financial terms you will be offered are more or less their standard deal and a take it or leave it proposition for you…”the little guy”.  You need to see if their deal makes financial sense to you.  Consider all of your costs of producing and selling the work, and how many you reasonably expect to sell within the allotted time (if there is a limit).  Their fees, when added to all other forecasted costs, may make the venture a financial loser, especially if there are multiple publishers involved or if that work is part of a medley requiring multiple song approvals. 

There is some small amount of ability to negotiate the terms (or “be creative”), but you’ll have little wiggle room.  I have been able to suggest certain alternatives, within reason with success.  But remember, the folks granting the permission are “city hall” and you (generally) can’t fight city hall.  Neither they nor you will likely become “filthy rich” from your arrangement so don’t become a nuisance to them, or they may walk away, not just from this deal, but future ones as well.

Postlude

I hope you found this information useful.  I have not seen most of this information available anywhere else, hence the many questions I get about it.  In return for this “wisdom” I have shared, I ask that you comment on ways to improve it based on your own experiences.

Disclaimer  

The information provided above is intended to help readers understand some of the issues in copyright law, but I’m not a lawyer and it’s not officially legal advice.  You should consult a lawyer if you want professional assurance that our information, and your interpretation of it, are appropriate to your particular situation.