What Is an Arrangement Anyway?
Since Berklee’s earliest days, courses in arranging have been staples of the curriculum. Through the years, students came to Berklee seeking the skills to arrange for big band, orchestra, small ensemble, and even solo instruments. Many have parlayed their arranging skills into successful careers penning charts for top artists and pops orchestras. Countless music education graduates have written copious arrangements for their school stage, marching, and concert bands, as well as choirs. A recent trend among third-party licensing agents and music publishers places those actions and more in legal jeopardy.
Venues and artists have long paid performing rights organizations like ASCAP and BMI for licenses to publicly perform music. But now, some publishers are demanding a second license for each arrangement performed.
These publishers have taken the position that every song performed live needs advance approval from the publisher to perform that specific arrangement. That includes the notes, rhythms, tempos, and instruments involved. If carried to the extreme, this stance could end live jazz and rock as we know it.
New Licenses and Fees
Arrangers are already struggling in the marketplace as the website www.peopleforfairmusiclicensing.com describes. “After over 80 years of an established course of dealing, some publishers are now requiring that print licenses be acquired and fees be paid for the creation and use of an arrangement of a song. This fee must then be paid for every performance of that song. This fee is often in addition to procuring a mechanical license and the fees paid to performing rights organizations (BMI, ASCAP, SESAC and others).
“These fees are not fair, reasonable, predictable, or transparent. Nor is the granting of the print license compulsory, as with a mechanical license. In a day when arts programs and funding are cut and symphony orchestras cling to life, the exorbitant fees being charged by the publishers are having a devastating impact on choirs, bands, orchestras, drum and bugle corps, arrangers, artists, and others who work in the performing arts community.” Under the U.S. Copyright Act, copyright in a composition is determined by two components: melody and lyric. There are, however, innumerable ways that a composition can be performed. Tempo, melodic rhythms, key, harmony, genre, groove, form, and instrumentation, are all elements of arrangement: choices made by one person or a group of people. Whether the song is presented by a solo singer or didgeridoo player, the choice to do so constitutes an “arrangement.”
If the original composition is changed for a live or recorded performance—whether unconsciously or in a spur-of-the-moment improvisation—the resulting changes constitute a new arrangement.
You Say You Want a Convolution
The demand for an arranging license goes as far as threatening even those bands that attempt to precisely re-create covers of existing recordings. A case involving the Beatles tribute band Classical Mystery Tour shows how convoluted this issue can get. For 22 years, the group has performed Beatles songs with orchestras across America in absolutely faithful transcriptions of the band parts and original orchestrations from Beatles recordings.
Classical Mystery Tour leader, James Owen, received written confirmation from Sony/ATV that since there were no fundamental changes to the songs and the show was a concert rather than a theatrical production, the band’s use of the Beatles material was covered under the performance licenses. These are licenses the venues have with ASCAP, BMI, and SESAC that musicians have long believed allowed them to perform cover songs. In a lawsuit against SONY/ATV, Tresóna Multimedia, LLC, and other defendants, Owens claims that his business is being harmed.
According to a suit filed in the Central District of California, the company Tresóna, seeking fees for music copyright holders, contacted orchestras with which Owens’s band was booked to perform. They stated that Owens and company would be playing unlicensed arrangements, and that the orchestra would owe fees of $2,200 for each performance of the Classical Mystery transcriptions.
The documents in the suit contain Tresóna’s claim that “only the exclusive owner of a musical composition has the authority to license the creation of a derivative work incorporating a preexisting musical composition” [emphasis added]. But the arrangements Classical Mystery Tour performs with orchestras are not “derivative works,” they are the originals. In a counterclaim, Sony lawyers pushed back against Owen, stating, “Sony explicitly takes the position that the right to publicly perform the Beatles’ works does NOT include the right to transcribe the EXISTING arrangements on the Sound Recordings.”
This raises the question: if venues pay the license fee for public performances of copyrighted music, can the artists perform the music in their own or the original artist’s style? According to SONY and Tresóna, the answer is no.
This issue is not limited to professionals in large venues. Students are being targeted as well. Tresóna filed lawsuits against school music directors for the use of arrangements of pop songs by student bands and choirs. A case brought by Tresóna Multimedia, LLC against Brett Carroll (Burbank, CA, high-school choir director) and the Burbank High School Vocal Music Association was heard by the Ninth Circuit Court of Appeals.
In short, Tresóna sued the defendants for performances at vocal competitions and choir fundraisers of the songs “(I’ve Had) the Time of My Life” and “Hotel California,” arranged by Josh Greene. Tresóna lost the case, but only on a technicality: they were found to lack standing to bring the lawsuit. Carroll fought back and prevailed, but at what cost? Attorneys fees in such cases can easily exceed $100,000. Other parties, unable to pay such legal fees, have not fought as Carroll did. School and community ensembles are worried. And rightly so.
A May 4, 2018 story in The Morning Call newspaper of the Lehigh Valley, PA, detailed the cancellation of a concert tribute to David Bowie by the Allentown Symphony Orchestra after a press release from orchestra representatives stated that Tresóna “questioned the rights of the show’s promoter regarding Bowie’s music.” The orchestra’s interim executive director is quoted as saying that the concert promoter “initially said there was no issue with using that music in the show.” The article later states that the concert
promoter “declined to say whether Tresóna had contacted him,” and a Tresóna representative is quoted as saying his organization had “no contact with the promoter about the Allentown concert.”
What really happened is unclear, but for high school, community, and professional performing organizations, the economic margins are small and many perform without profit, merely for the love of being creative. Amateur or student status is not a legal defense.
Professional arrangers creating charts for various ensembles are at risk too. They are at risk of being accused of infringing the rights of publishing companies who negotiated exclusive rights to sell the sheet music.
Unless the law is clarified, an arranger could have to pay a licensing fee before writing a chart. As well, a performing organization would pay the arranger, plus a fee to perform each chart, plus licensing fees to performing rights organizations. For some organizations, this could make the cost of presenting live performances prohibitive.
Congressional Action Is Needed
Attorney Jonathan Minkoff contends that the answer is to make arrangements fall under a compulsory license. “Congress understood that there is no real right to record a song without also making an arrangement,” Minkoff says. “Live performers need that same protection. Congress did not mean to make all improvisation in cover songs illegal. The right to perform has always included an implied right to arrange.
“Now that right is under threat, so Congress needs to make it explicit in the law. Currently, every band and every choir is potentially at risk. Congress should do two simple things: first, clarify that performing includes arranging; and second, create a compulsory musical arranging right that matches the existing compulsory recording right.
“By creating an all-uses compulsory license, composers and publishers would get a new source of income and arrangers could come out from the shadows and get legal. Everyone would win.”