Want to simplify some music for your beginning chorus or transcribe a piano piece for flute? Arranging a copyrighted musical work requires the permission of the copyright owner.
There are Fair Use exceptions in U.S. copyright law that support educators:
- “Music teachers can edit or simplify purchased, printed copies, provided that the fundamental character of the work is not distorted or the lyrics, if any, are not altered or lyrics added if none exist.
- “Music teachers who get a compulsory license* for recording can make a musical arrangement of a work to the extent necessary for their ensemble. The arrangement cannot change the basic melody or fundamental character of the work.” (“United States Copyright Law: A Guide for Music Educators”)
Here’s what the law (37 U.S.C. §107) considers to determine Fair Use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount used and how substantial the portion used is in relation to the copyrighted work as a whole; and
- the effect of the use on the potential market for or value of the copyrighted work.
Derivative Works that Require Permission
- Arrangements
- Simplified editions
- Orchestrations
- Instrumental accompaniments
- Adaptations
- Transcriptions
- Translations of lyrics
Requesting Permission
1) Determine the copyright owner (usually the publisher) using the Harry Fox Agency’s Songfile or ASCAP’s ACE Title Search.
2) Contact the copyright owner and ask for permission. NAfME member Jay Althouse recommends providing as much information as possible:
- The kind of arrangement—band, chorus, orchestra, etc.
- The number of copies or parts
- Who is making the arrangement—you, a student, or someone for hire
- Who will perform the arrangement—your chorus, the local symphony
- Whether you will sell the arrangement and its price
- How often the arrangement will be used—the 2008 Winter Concert or every year from now on
3) Get permission in writing.
4) Show a copyright notice on the arrangement—on all copies and all parts.
5) Keep in mind that permission may be denied or come with a fee.
6) Don’t risk infringement if permission is denied. Statutory damages range from $500 to $20,000 for each act of infringement, but can soar to $100,000 if the infringement was willful.
In his book, Copyright: The Complete Guide for Music Educators, Althouse describes noninfringing and infringing adaptations:
- Noninfringing: You buy enough copies of a choral work for your SATB choir and change a few notes in the tenor line.
- Infringing: You buy one copy of a 2-part work and adapt it for your SATB choir. You write men’s parts, notate them with Finale software, and distribute copies to your male singers.
Althouse’s rule of thumb: What if everyone did it? In the above example, if the publisher already has an SATB version in print, this adaptation could cause a loss of sales for the publisher’s edition.
Jay Althouse is a music educator who served as a rights and licenses administrator for a major educational music publisher, as well as serving a term on the executive board of the Music Publishers Association of America. He composes choral music and has written several books in addition to his book on copyright.
–Linda Brown, October 1, 2008 © National Association for Music Education (nafme.org)
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* Compulsory License: If a musical work has been recorded for public distribution, the copyright owner is required to license it to anyone who wants to record it.
