What is the legal basis for the sale of transcriptions?

[dcrigger]

You can't sample someone's record, then play a new bass part over the top, add a bit of percussion then 'charge for your labour'. It's copyright infringement or it isn't.

That's not exactly true. Remember there are still "fair use" aspects to copyright law. And even before that - there is no aspect of copyright law that says that I can't buy a CD, edit it audio, add new parts to it and mix it down to entirely different version as long as I don't publicly share it - broadcast it, play it in public or in any way, sell it. By extension, I can hire some one to help me with that same process - pay them to overdub, edit and remix this "borrowed" - again, as long as I don't publicly share it.

I know - because I do this all the time. But why would anyone pay me to do such a thing? Well that brings us back to "fair use".
One of the "fair uses" people can use both songs and recordings without payment or permission is to accompany sports events - in this particular case.... figure skating.

All around the world, there are amateur figure skaters of all ages that perform in competitions - and each and every one of them publicly skates to pre-recorded music with no need to pay any fees, royalties or get any permission to do so. Fair use... And like any sporting event - skating routines have specific timing requirements - which 99% of music doesn't conform to. So every amateur figure skater in the world regularly needs pre-recorded music edited and modified to fit the needs of their routine. Thousand upon thousands of them, year after year after year.

I have been editing routines for coaches and choreographers for years and years - heck back when we were still cutting .... tape!!! And what used to be straight cuts (edits) - now includes overlays, added parts, creating endings from scratch - every bit of the tools we have to re-mix audio, etc.

And the rules are: The person using the copyrighted material has to have purchased the material - as the copyright agreement attached to that purchase includes the "fair use" provisions in the law. So I can only work on audio files that the client has given me - this way they purchase the right to use the music under fair use. I can't buy a CD, rip it, edit it, then give it to them to use - because I don't have the right to re-sell anyone's music or recording.

This means I can't say - edit a bunch of routines comprised of edited copyrighted recordings and put them on a website for purchase. Or even new recording of famous songs recorded for this purpose. For these things would require permission and fees to be paid - as some "enterprising" editors in recent years quickly found out.

Actually it is still to loosey-goosey for my tastes - with lots of coaches sucking audio off of YouTube as their source material. Luckily there are number of localities that have started demanding documentation (sales receipts) showing the skater having actually legally purchasing the source music used in the routine. I would hope to see more of that - including in the US.

But short of that - as I advertise this service - I only work from audio files provided to me by the client. They are the one that is supposed to purchase the music - because they are the one that will make use of the fair use provision in the law when performing to it publicly.

Bottom line is - it is the end use, the distribution, the performance where copyright infringement takes place. Think of all of the times. we've done sessions, overdubbing on tracks with no real knowledge of whether the producer has any legal right to distribute those tracks at all. As the person editing, overdubbing, transcribing, etc. - our services in themselves aren't an infringement - it is what the person then does with that "product" that is.

In this case, there's a fair use provision for this activity - figure skating competitions. But for me to even post those same routines here or on my website for you to hear, that would be an infringement - because there is no fair use provision for such a public display.

 

[dcrigger]

When you hear "publishing" in the sense of music, the origins are literally from the publishing of sheet music. That's what the songwriter's credit / revenue is for.

Selling transcriptions isn't a grey area -- it's absolutely illegal.

Even writing transcriptions + not selling them isn't legal. That's why the Real Book has been an "underground" thing for so long.

Sorry gotta disagree - writing transcriptions + not selling them is absolutely legal.

To the best of my knowledge, even being paid to transcribe something for someone else is also legal. Because you would simply be doing something for someone in proxy of them doing it themselves. Basically the difference between selling a service versus a product.

It is distributing - sharing - etc. where the infringement begins and ends.

Again - the reason why the Real Book was long an "underground" thing is not from having created it - but from having distributing copies of it.

I can legally transcribe my entire record collection - no problem. It is when I start giving it to others - that the infringement happens.
The Real Book was an underground thing for so long because the rights would have been so difficult and expensive to acquire. Basically a problem that only a company like Hal Leonard would ever be able to take on - which they eventually did. And now the Real Book is totally legal - all rights paid for and permissions procured.

 

[bpaluzzi]

Sorry gotta disagree - writing transcriptions + not selling them is absolutely legal.

Sorry -- I meant writing and distributing them, even if you don't receive payment for them.

I think we're in agreement, based on what you said below.

To the best of my knowledge, even being paid to transcribe something for someone else is also legal. Because you would simply be doing something for someone in proxy of them doing it themselves. Basically the difference between selling a service versus a product.

It is distributing - sharing - etc. where the infringement begins and ends.

Again - the reason why the Real Book was long an "underground" thing is not from having created it - but from having distributing copies of it.

I can legally transcribe my entire record collection - no problem. It is when I start giving it to others - that the infringement happens.
The Real Book was an underground thing for so long because the rights would have been so difficult and expensive to acquire. Basically a problem that only a company like Hal Leonard would ever be able to take on - which they eventually did. And now the Real Book is totally legal - all rights paid for and permissions procured.

 

[Pat A Flafla]

I think if copyright bully Tresona hasn't threatened you over it, maybe you either haven't hit the gray area yet or they know you don't have any money.

 

[dcrigger]

S

Sorry -- I meant writing and distributing them, even if you don't receive payment for them.

I think we're in agreement, based on what you said below.

Sounds like we are.

Though maybe the point should be made, just to clarify, that distributing for money or sale isn't really the issue - just distributing them without permission, period. Sometimes it seems folks believe if they are sharing something for free, it is OK. But it's not - unless you have permission, or the right to share it.

 

[Whitten]

That's not exactly true. Remember there are still "fair use" aspects to copyright law.

Copyright is different from territory to territory. In the UK the owner of a recording is paid every time that recording is publicly used (like ice skating). You don't need permission, but you are obliged to log that you've used the work (PRS).
I think 'Fair Use' has often been abused by the now multi-million dollar tech industry.
People constantly post 'copyright bullies' as a result of tech industry propaganda and no one thinks of the composers and musicians who's livelihoods have been damaged by loss of income.

 

[Pat A Flafla]

People constantly post 'copyright bullies' as a result of tech industry propaganda and no one thinks of the composers and musicians who's livelihoods have been damaged by loss of income

The specific outfit I was thinking of is indeed an overeager middleman and a bully.

Burbank High Vocal Music Association Wins Landmark Ruling In Tresona Copyright Suit

In a strongly worded judgement and landmark ruling, the 9th Circuit Court found in favor of Burbank High's choir program and clarified "Fair Use" terms in federal copyright law for music education programs nationwide, while instructing Tresona to pay the BHS defendants' legal fees.

myburbank.com

 

[bpaluzzi]

The specific outfit I was thinking of is indeed an overeager middleman and a bully.

Burbank High Vocal Music Association Wins Landmark Ruling In Tresona Copyright Suit

In a strongly worded judgement and landmark ruling, the 9th Circuit Court found in favor of Burbank High's choir program and clarified "Fair Use" terms in federal copyright law for music education programs nationwide, while instructing Tresona to pay the BHS defendants' legal fees.

myburbank.com

I don't know how I feel about the court agreeing that was fair use. It seems like it has pretty far-reaching implications. If a fundraiser (i.e., money-making) usage is considered fair use, just because it's being performed by a scholastic group, then surely marching band arrangements which are also scholastic would be considered fair use.

The court is obviously the expert here, but to me, this seems like another miss, like the "Blurred Lines" ruling.

 

[Pat A Flafla]

I don't know how I feel about the court agreeing that was fair use. It seems like it has pretty far-reaching implications. If a fundraiser (i.e., money-making) usage is considered fair use, just because it's being performed by a scholastic group, then surely marching band arrangements which are also scholastic would be considered fair use.

The court is obviously the expert here, but to me, this seems like another miss, like the "Blurred Lines" ruling.

I think this has more information:

https://www.copyright.gov/fair-use/summaries/tresona-multimedia-burbank-highschool-vocal-music-assn-9thcir2020.pdf

I'd like to point out that they aren't the copyright holder, but a middleman going after schools on spec.
Tresona is a glorified protection racket, and I get the absolute joy of dealing with them regularly.
You'll never catch them going, "After review, we think your show qualifies as fair use. Keep your $2,000."

 

[bpaluzzi]

I think this has more information:

https://www.copyright.gov/fair-use/summaries/tresona-multimedia-burbank-highschool-vocal-music-assn-9thcir2020.pdf

I'd like to point out that they aren't the copyright holder, but a middleman going after schools on spec.
Tresona is a glorified protection racket, and I get the absolute joy of dealing with them regularly.
You'll never catch them going, "After review, we think your show qualifies as fair use. Keep your $2,000."

Oh absolutely. I’ve dealt with Tresona as well, and I think they’re gangsters. I’m more worried about the general precedent (I thought Robin Thicke was a tool as well, and the fact that the entire thing came around as a result of a counter suit was sweet justice, but the precedent was chilling)

 

[Whitten]

There are always exceptions, rogue legal firms and copyright chasers.
Every Youtube video I've made has had a copyright strike. That's because I'm using other people's music.
Songwriters for example have been severely harmed by streaming, so I respect their need to continue earning a living somehow.

 

[toddbishop]

OP asked this same question on another forum. Transcribing a drumming performance vs. transcribing a composition are different things. The notes of a drumming performance are considered arrangement, and are not copyrightable as part of the composition. Which is why we don't get royalties from ASCAP/BMI when something we played on is played on the radio. And why when people got sued for sampling, it was the people who owned the recording (copyrighted) who sued, not the drummers (musical content of the playing not copyrighted). I don't know if Stubblefield himself ever sued-- I think he basically had to do a publicity campaign to shame people into paying him and giving him credit.

Of course you couldn't transcribe and sell something that was written and published as a percussion composition. It would probably be asking for trouble to put out a volume of stuff featuring a well known trademark: Led Zeppelin, Rush, Kiss, The Police, Frank Zappa, etc. I don't know what the law is re: just mentioning the title of the tune your legal drum transcription was taken from. It's not illegal to just mention the title of something in a work for profit, and if the rest of your work (the transcription) is legal, it should be legal to say the title.

Probably the people to ask would be the appropriate editors at Drum!, Modern Drummer, Down Beat, etc. They publish transcriptions on an ongoing basis, and are certainly very aware of what's going to get them sued. Maybe they're in constant contact with all the different musicians / recording labels / publishing companies around the world-- all of whom have an interest in the copyrightable elements of a recorded piece of music-- and, under deadline pressure, getting timely responses to their requests for written permission to publish. I kind of doubt it.

 

[multijd]

I think if copyright bully Tresona hasn't threatened you over it, maybe you either haven't hit the gray area yet or they know you don't have any money.

Is that the Colorado lawyer guy?

 

[Pat A Flafla]

Is that the Colorado lawyer guy?

It's sprawling and invasive enough that I doubt it's just a guy.

 

[Timo-Germany]

Thank you for all your advice.It does seem that, at least in Germany, the consent of the rights holders must be obtained. It remains a difficult and controversial issue. It could also be simple!

 

[toddbishop]

It does seem that, at least in Germany, the consent of the rights holders must be obtained.

What's your basis for concluding that?

 

[Pat A Flafla]

It could also be simple!

Unfortunately that's just not how society works.
I loves me some simple, but I humans ain't the place for me to look for it.

 

[JazzDrumGuy]

My advice as a real lawyer is not to take the advice of armchair lawyers. I certainly have no clue but I would start with consulting an intellectual property lawyer in your jurisdiction. Lot of good points and ideas above, but again I have no clue. There's a lot of potential for problems......

 

[thenuge]

You’re asking the internet for legal advice. Don’t do that. You need an entertainment lawyer with music industry experience. There are unique digital aspects to this that are new – e.g. if you offer the transcriptions for free but are taking Patreon donations is that skirting the law – etc. You can call ASCAP and BMI and ask them for advice – you will probably need a publishing company through them anyway - but they may not have any advice beyond referring you to lawyers. John Riley has transcriptions in his Beyond Bop book so you could send him an email asking what he did/does.