Permission To Arrange A Copyright Standard

[MDC29]

What is the name of your state? Nevada

RE: Print Administrator’s Application of Copyright Law

I am fully aware that the copyright statutes clearly state that only the copyright owner or his agent can grant permission to produce a derivative arrangement of a composition under their control. I’d like to present the following scenario/question to the legal minds in this forum.

Hypothetical Scenario:
Your daughter is getting married. You hire a 12 piece band. Then you hire an arranger to prepare a very special arrangement of “Daddy’s Little Girl” for the band, so you can sing the song in your key to your daughter on her wedding day. According to the statutes, this usage requires a permission to arrange license. What if the administrator of the print rights simply denies a license for this usage. Although the print administrator has the legal right to deny the usage, wouldn’t such an action by the print admin be unreasonable?

Based on my research in Las Vegas and Los Angeles, on a daily basis, in every major city, numerous singers and musicians commission music arrangers to prepare arrangements of standards. I also discovered that arrangers do not submit permission to arrange requests to the appropriate administrator of the print rights.

Questions: Is there some provision in the statutes that does not require an arranger to obtain a license to create an arrangement? Does the administrator of print rights have any (written or unwritten) obligation to the public? Last question: If you were a judge and the above referenced scenario happened to you, how would you rule?

Thanks,
Dax

 

[divgradcurl]

Your daughter is getting married. You hire a 12 piece band. Then you hire an arranger to prepare a very special arrangement of “Daddy’s Little Girl” for the band, so you can sing the song in your key to your daughter on her wedding day. According to the statutes, this usage requires a permission to arrange license. What if the administrator of the print rights simply denies a license for this usage. Although the print administrator has the legal right to deny the usage, wouldn’t such an action by the print admin be unreasonable?

It doesn't matter if the refusal is unreasonable or not -- the copyright holder has the right to control the use of his or her work. That means that you, or anyone else, does not have the right to create a derivative work. There is no reasonableness test here -- the copyright holder controls the work, he or she doesn't have to sell a license if they don't want to.

That said, certain types of licenses are compulsory under copyright law -- for example, if a songwriter allows his or her song to be recorded, then he or she must sell a license to anyone else who wants to record a version of that song (a "cover").

Questions: Is there some provision in the statutes that does not require an arranger to obtain a license to create an arrangement?

No.

Does the administrator of print rights have any (written or unwritten) obligation to the public?

No.

If you were a judge and the above referenced scenario happened to you, how would you rule?

Rule on what?

 

[MDC29]

There is no reasonableness test here -- the copyright holder controls the work, he or she doesn't have to sell a license if they don't want to.

divgradcurl, Thanks for your response. Yes, although I believe the operative effect of the statute to be unfair to the public, your answer is certainly correct that "There is no reasonableness test..." Especially in light of one's ability to easily obtain a compulsory mechanical to create a recording, but on the other hand, not be allowed to pay a simple statuatory fee to transcribe the content of the subject recording to printed version.

As to arrangers:
I actually took the time to poll several musicians about submitting a Request For Permission To Arrange. Bottom line, no one seems to think this is a legitimate requirement and those I spoke with have not at any time requested such permission.

Question: If arranging a piece of copyright music is in fact an infringement, and a lawsuit were to rise from an arrangers unauthorized usage of a song, is the print administrator bound to any uniform application of the copyrights? e.g. John prepares an arrangement and the print admin becomes aware. The print admin also becomes aware that Fred and Joe also prepared arrangements for the same song. Specifically, for the lawsuit to be without defect, would (or could), the print administrator sue John only, or would they be required to also sue John, Fred and Joe and every other (known) person who has arranged the subject music?

Thanks,
Dax

 

[divgradcurl]

Question: If arranging a piece of copyright music is in fact an infringement, and a lawsuit were to rise from an arrangers unauthorized usage of a song, is the print administrator bound to any uniform application of the copyrights? e.g. John prepares an arrangement and the print admin becomes aware. The print admin also becomes aware that Fred and Joe also prepared arrangements for the same song. Specifically, for the lawsuit to be without defect, would (or could), the print administrator sue John only, or would they be required to also sue John, Fred and Joe and every other (known) person who has arranged the subject music?

No. The copyright holder could sue everyone, nobody, or some subset of infringers. Just like speeding, just because someone else is doing it doesn't provide you with a defense if you get caught!

A copyright holder may decide to agree to sell a license to person A, but not to person B -- in this case, aside from the situation when a license is compulsory, person B has no recourse to force the copyright holder to sell them a license. This is especially true is A is sold an exclusive license. Similarly, if both A and B are infringing, the copyright holder could sue A and B, sue neither A nor B, or sue A or B alone. What the copyright holder cannot do is allow someone to infringe for a long period of time, then sue them -- this is called "laches," and it basically is an equitable remedy that says it isn't "fair" to sit and watch someone infringe your copyright and wait to sue them until the damages pile up. In other words, once you've allowed an infringer to "rely" on the fact that you are not going to enforce your copyright, you lose the right to enforce the copyright. This time period for copyright law is generally around 6 years.

That said, if A is infringing for a long time, even though the copyright holder might lose the right to enforce their copyright against A, the copyright holder does NOT lose the right to enforce their copyright against B or C or anyone else. A may be able to rely the copyright holder's failure to enforce their copyright, but nobody else can.