What is the legal basis for the sale of transcriptions?

[dcrigger]

OK - I have to correct something I posted earlier.... recorded music being played in public for figure skating competitions.... It is not as I described.... ie: fair use. Just like DJ's playing recordings at a wedding or a band playing songs in a club - the obligation for obtaining permission for public performance falls not on the performer... but on the venue. Ice Rinks... Sports Arenas.... just like clubs, bars, department stores, restaurants, etc. etc. - all pay blanket licenses that covers all of the music played in their establishment.

Much like the arrangement Chris described in the UK - except here in the states, our performing rights organizations are very lax in collected specific playlists at lesser venues. At full blown concerts though, yes, they collect specific data. In any case, all such public performance of music is covered by these blanket licenses.

Of course, original arrangements/performances of copyrighted songs are absolutely allowed. Edited versions of pre-recorded music seems less defined - but in practical fact, this something DJ's have been doing live in clubs for decades.

 

[dcrigger]

This is interesting because there is also something called "synchronization rights", whereby you have to pay if you sync a copyrighted piece of music to a visual. This usually means advertising or movies, but it has also heavily impacted marching bands and drumcorps... not so much when they perform, but when they try and broadcast, or sell a DVD of their show. In fact, the quagmire of synchronization rights has completely changed the marching activity to where they now use almost exclusively original music, so that they can legally sell product during and after the season without getting sued.

In the case of figure skating, I would assume that if the performances are going to appear on television (such as in the olympics), or if they want to sell DVDs or stream performances, that synchronization rights would need to be obtained or purchased. And if not, why not? The skating performance seems every bit a work of art as a drumcorps drill.

Yes the sync license thing is a problem.

The use of a recording is pretty straightforward - there basically is no allowable use without permission. And yet, of course, DJ's make money playing recordings everyday - and the performing rights orgs are only collecting money for the composers - not the artists or labels.

Where the sync rights get confusing - at least for me - and inline with what you are referring to is this...

For me, to record and distribute an original recording of someone else's song is easy - no permission is necessary. Though there is a license required - but granting that license is compulsory. If I were to record and release a CD of jazz version of Jimi Hendrix songs - I just need to pay the straightforward license fee at the Harry Fox agency (that handles that for basically all publishers in the US) - no actual permission needed.

But to release a video including that music requires a sync license - and that has to be gotten from each individual publisher... and they can charge whatever they want - and can actually refuse to grant them.

lucky for me - at least so far - for the two odd meter jazz versions of Hendrix tunes that I've put on YouTube - Experience LLC has not blocked them.... choosing instead to, of course, take whatever advertising monies those videos generate (which I'm totally fine with) and just letting the sync license slide. Some publishers aren't so open to doing that - so my understanding is that it can be very hit and miss.

 

[Whitten]

Much like the arrangement Chris described in the UK - except here in the states, our performing rights organizations are very lax in collected specific playlists at lesser venues. At full blown concerts though, yes, they collect specific data. In any case, all such public performance of music is covered by these blanket licenses.

Yes, my pals who have a (glorified) cover band have to submit set lists and the original artist is earning money from it (while they sleep at night). All public venues that have music are required to buy a music license from PRS.

 

[Whitten]

lucky for me - at least so far - for the two odd meter jazz versions of Hendrix tunes that I've put on YouTube - Experience LLC has not blocked them....

Gregg Bissonette and I played Ringo's drum solo from The End as a tribute and uploaded it to Youtube. We were immediately hit with a copyright strike, as if we'd used the original recording, whereas it was in a way 'a cover' a live performance of us playing. More ironic as Gregg plays in Ringo's band and I played the solo live with McCartney.
Like many things in life, a few bad apples have ruined things for everyone else (talking about pirates).

 

[RIDDIM]

Transcribing a song and selling is illegal because someone possesses copyright on that song and that gives them various rights including publishing. Copywriting a drum part is not commonly done nor assumed. I’ve never heard of someone filing a claim on a drum part. Imagine being restricted from playing the beat to any Rolling Stones tune (the basic vocabulary of Rock) or any of Max Roach , Philly Joe Jones or Elvin Jones’ grooves and comping! How about copyright on the Cha Cha, Mambo or Samba. We would run out of things to play pretty quickly. Now that is different than the recording of a drum part which can be sampled and is protected under copyright as part of the original recording.

I could be wrong, but if transcribing and selling drum parts were illegal, might it not also follow that drummers could sue for compositional credit on hits they played on?

I can't imagine any musician passing up a chance to get songwriting credits, given that if a tune is a hit, one might make some serious $.

Yet somehow I haven't heard of this happening, except for the situation Chris described above.

 

[bpaluzzi]

I could be wrong, but if transcribing and selling drum parts were illegal, might it not also follow that drummers could sue for compositional credit on hits they played on?

I can't imagine any musician passing up a chance to get songwriting credits, given that if a tune is a hit, one might make some serious $.

Yet somehow I haven't heard of this happening.

It's different legal aspects at work here.

Drummer performances are generally not considered to be "published" songwriting

However, a transcription of a specific recorded performance is considered a derivative work, which is protected under different laws. It's similar to a sample -- also not songwriting, but that specific recording has rights assigned to it.


Standard disclaimers: IANAL / "Blurred Lines" means nobody knows what the rules are anymore

 

[dcrigger]

I could be wrong, but if transcribing and selling drum parts were illegal, might it not also follow that drummers could sue for compositional credit on hits they played on?

I can't imagine any musician passing up a chance to get songwriting credits, given that if a tune is a hit, one might make some serious $.

Yet somehow I haven't heard of this happening, except for the situation Chris described above.

Again you could probably transcribe and sell drum parts as long as you don't identify them as belonging to a specific song. Slapping a title on them is declaring that "these drum parts are derived from this". Which is to say they are really only of interest because of their association with the copyrighted work. In this way the seller of the transcription is "riding on the successful coat tails of the copyright holder". And that is not allowed without getting permission and negotiating payment.

This really has nothing to do with the contents of the transcription - but rather the attempt to capitalize on the song/recording's success.

Which means it is not establishing any kind of a connection between playing a drum part on a record becoming a path to claiming songwriting credit. (I can't imagine why so many drummers think that making up drum parts to go with songs has any connection to songwriting - even creating most "signature" riffs, fills, chord voicing, counter-melodies, harmony parts, bass lines on all instruments doesn't result in sharing song-writing credit. Those things are just part of making records - not writing songs.)

 

[Matched Gripper]

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

Very cool! Case is from almost 2 years ago, BTW.

 

[RIDDIM]

Again you could probably transcribe and sell drum parts as long as you don't identify them as belonging to a specific song. Slapping a title on them is declaring that "these drum parts are derived from this". Which is to say they are really only of interest because of their association with the copyrighted work. In this way the seller of the transcription is "riding on the successful coat tails of the copyright holder". And that is not allowed without getting permission and negotiating payment.

This really has nothing to do with the contents of the transcription - but rather the attempt to capitalize on the song/recording's success.

Which means it is not establishing any kind of a connection between playing a drum part on a record becoming a path to claiming songwriting credit. (I can't imagine why so many drummers think that making up drum parts to go with songs has any connection to songwriting - even creating most "signature" riffs, fills, chord voicing, counter-melodies, harmony parts, bass lines on all instruments doesn't result in sharing song-writing credit. Those things are just part of making records - not writing songs.

This makes sense.

 

[toddbishop]

Again you could probably transcribe and sell drum parts as long as you don't identify them as belonging to a specific song. Slapping a title on them is declaring that "these drum parts are derived from this". Which is to say they are really only of interest because of their association with the copyrighted work. In this way the seller of the transcription is "riding on the successful coat tails of the copyright holder". And that is not allowed without getting permission and negotiating payment.

This really has nothing to do with the contents of the transcription - but rather the attempt to capitalize on the song/recording's success.

Which means it is not establishing any kind of a connection between playing a drum part on a record becoming a path to claiming songwriting credit. (I can't imagine why so many drummers think that making up drum parts to go with songs has any connection to songwriting - even creating most "signature" riffs, fills, chord voicing, counter-melodies, harmony parts, bass lines on all instruments doesn't result in sharing song-writing credit. Those things are just part of making records - not writing songs.)

Trying to get my head around the legal theory there. Titles aren't protected vs. any commercial or non-commercial use. Since the whole point of them is to name a (presumably copyrighted) work, how does it become a violation to use them for their intended purpose?

https://www.copyright.gov/help/faq/... protect names,may be protected as trademarks.

 

[multijd]

Much like the arrangement Chris described in the UK - except here in the states, our performing rights organizations are very lax in collected specific playlists at lesser venues. At full blown concerts though, yes, they collect specific data. In any case, all such public performance of music is covered by these blanket licenses.

Of course, original arrangements/performances of copyrighted songs are absolutely allowed. Edited versions of pre-recorded music seems less defined - but in practical fact, this something DJ's have been doing live in clubs for decades.

I play in a jazz group that has been performing at an outdoor “park” for the last few summers. The “park” is really just a corner lot on the property of a bakery in a dense and popular neighborhood on Buffalo’s west side. This is an area that is starting to become hip and more active with development. Nothing huge just people buying lots or abandoned buildings and starting their businesses. During the first summer BMI/ASCAP approached the owner of the bakery demanding a license for the compositions we were playing. Anyone can sit in this “park”/lot. There is no cover charge and you don’t have to purchase anything to be there. But they threatened the bakery owner. So we don’t play recognizable “heads”/melodies any longer. We write our own contra-facts on standard tunes like All the Things You Are, Four, Jitterbug Waltz etc. No more problem. No license needed. This is actually the root of many Bebop tunes. The record labels didn’t want to pay the royalties so the musicians had to write new heads.

 

[Pat A Flafla]

During the first summer BMI/ASCAP approached the owner of the bakery demanding a license for the compositions we were playing.

Goons.

 

[toddbishop]

Goons.

It's fine, music isn't much of a business if it's totally free for everyone. ASCAP/BMI/et al represent composers.

 

[Pat A Flafla]

It's fine, music isn't much of a business if it's totally free for everyone. ASCAP/BMI/et al represent composers.

Well, I wouldn't feel good about receiving a 50-cent royalty extracted by goons from a bakery that just happens to be in ear shot of an open air performance. Goons acting on your behalf are still goons, and I want nothing to do with them.

 

[dcrigger]

Goons.

Sorry - can't agree - though yes this scenario pushes the envelope, I think it is still important to keep in mind, that for most composers and songwriters, royalties from mechanical licensing and collections from Performance Rights Organizations are the sole source of income from writing music. Artists/labels sell records/CD's/Downloads - Performers play concerts, clubs, etc. - and Business owners use music to make their establishments more trendy, more relaxing, more whatever-mood-they-are-going-for.... and they all make money doing those things. And use the work product of writers and composers to make it happen.... with composers only receiving a tiny slice for what their music brings to those proceedings.

As someone whose whole career has been predicated upon making money performing songs and compositions written by others, I could never bring myself to bemoan the efforts taken to insure that those creators get their tiny slice of the pie.

 

[dcrigger]

Well, I wouldn't feel good about receiving a 50-cent royalty extracted by goons from a bakery that just happens to be in ear shot of an open air performance. Goons acting on your behalf are still goons, and I want nothing to do with them.

That's what I was thinking - until I read the post more closely. This was clearly no "park" that just happened to be near a bakery - it was an open seating area on the land OWNED by the bakery. That is - by definition - an outdoor, casual venue hosted by the bakery. Free concerts are not excluded from public performance royalties - because we all know.... most "free" concerts most often benefit someone.... in this case, the bakery.

That clearly benefits from the added traffic - because if they didn't they would ask multijd's band to leave....

So no, just like any other venue - the owner of the venue is legally obligated to secure a performance rights license for any public exhibition or display of copyrighted music.... whether admission is being charged or not.

As for a 50 cent royalty from something like this - even famous, prolific songwriters would be unlikely to receive anywhere close to 50¢ for a year long license for something like this. A license for this bakery to do this unfettered would probably cost maybe $200-$300 a year - can't see how this is any kind of highway robbery.

And distributed among all songwriter/composers, and spread across the little businesses utilizing music, and we end up with composing as a profession for the lion's share of writers that just might come close to paying the bills.

Again - I just don't feel right making a living off of someone else's labor without at least supporting them getting paid as well.

 

[dcrigger]

Trying to get my head around the legal theory there. Titles aren't protected vs. any commercial or non-commercial use. Since the whole point of them is to name a (presumably copyrighted) work, how does it become a violation to use them for their intended purpose?

https://www.copyright.gov/help/faq/faq-protect.html#:~:text=Copyright does not protect names,may be protected as trademarks.

View attachment 605956

Todd - You may well be right here.... two thoughts... 1. in light of recent court cases, the argument that the drum parts from the record are not copyrighted as part of the song has never been more tenuous. 2. anything that even appears to be infringement can draw threats of legal action - and most financially low-return ventures like a self-published drum book rarely comes with deep enough pockets to defend oneself. (I commend the folks involved with that Burbank School case for sticking up for themselves - and was pleased with the outcome - but someone still had to risk considerable amounts of $$$ to make that happen).

Finally - as I think someone posted earlier - it would be ill advised for anyone to get to deep into a path like this without getting some real professional advice,

 

[Whitten]

Businesses use music to attract customers. It's obviously more pleasant to listen to nice music while you chomp your sandwich or donut than to sit in silence. Businesses try it on, although they know they are using music to create a good atmosphere. Hairdressers in the UK have fought against music licenses for years.

 

[multijd]

I don’t bemoan the rights agencies from collecting on behalf of the composers. As stated above this is the way they make money and in fact I have made money this way and hope to continue doing so. (Incidentally classical compositions are paid much higher than any pop music. One classical performance can pay in the hundreds or thousands of dollars depending on length and content ie. Opera. Pop music, incl. jazz needs many thousands of plays to get paid.) my problem is actually that the bakery owner wouldn’t pay the license. Instead of shelling out a few hundred dollars so we could play standard rep he refused and got all of our tunes for free.

 

[toddbishop]

two thoughts... 1. in light of recent court cases, the argument that the drum parts from the record are not copyrighted as part of the song has never been more tenuous.

If they decide that, it means that all drummers will have to be credited and paid royalties as co-composers. I don't believe that's going to happen.

2. anything that even appears to be infringement can draw threats of legal action - and most financially low-return ventures like a self-published drum book rarely comes with deep enough pockets to defend oneself.

Financially low-return for anyone wanting to sue them, too.

I wonder if literally anyone has ever gotten a cease and desist letter for selling drum transcriptions. Maybe one of the magazines. I'll ask some people...

I don’t bemoan the rights agencies from collecting on behalf of the composers. As stated above this is the way they make money and in fact I have made money this way and hope to continue doing so. (Incidentally classical compositions are paid much higher than any pop music. One classical performance can pay in the hundreds or thousands of dollars depending on length and content ie. Opera. Pop music, incl. jazz needs many thousands of plays to get paid.) my problem is actually that the bakery owner wouldn’t pay the license. Instead of shelling out a few hundred dollars so we could play standard rep he refused and got all of our tunes for free.

The good result is that it encourages businesses to require original music-- a lot of musicians won't even insist on getting paid for their direct labor playing the gig, let alone licensing their compositions. If ASCAP were any good, they would be collecting from the business on your behalf for your tunes you played. Like playing in Europe I've had to fill out forms listing everything we played that night. Guys in the band just wrote in their own tunes, and got paid.

It's weird/funny/sad that composers getting paid for the commercial use of their work is such a foreign concept in the US.