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copyright law governing transcribed solos?

21K views 51 replies 24 participants last post by  Mark Fleming 
#1 ·
legal question/s
under copyright law, is a solo is owned by its performer?
let's say Hal Leonard wants to publish a book of transcriptions of a performer, do they need that performer's permission, or need to file a mechanical license?
does the performer or his/her heirs get any royalties for a published solo transcription?

thanks
 
#2 ·
It is my understanding that an improvised solo is not copyrightable. However, the printed version of it is. So, you can take anyone's solos off a record at will but you can't reproduce for commercial gain a transcribed solo directly out of a Hal Leonard book of Kenny G transcriptions (sorry, couldn't resist).
 
#3 ·
actually, if its recorded, its copyrighted, however, if you have great perfect pitch and you hear brecker play a solo at a jazz fest, you can reproduce it, but you cant take the solo off the record.

copyright touches all art forms that are in a tangible form, on a napkin, a cd recording, a printed book, etc
 
#5 ·
Copyright includes the right to print and the right to display as well as mechanical phonographs (now alternate media). In fact, it would be illegal to hang a giant poster of the transcription without a license (if the poster itself is licensed and therefore for display, then this is ok, you can't make your own ... nor use it for an advert).

Basically, you need to secure a license from the publisher. NOT the artist directly and NOT the record label. Unless the musician is a co-author of the work, their work is for-hire but the effort is retained under the copyright. Meaning the performance.

On the other hand, you can probably get away with it. Sheet music is a black hole as far as the music industry is concerned here in 2003.
 
#8 ·
Andrewfus said:
it frightens me that one day some handjob copywright lawyer will be in a jazz club, hear a cat reference a coltrane lick, and slap him with a copywright infringement suit.

seriously gang, i think this day will come.
Interesting situation, they might consider slapping you with a suit, but how would he/she prove it? have recorded you, without your permission? or would it be a case of he said/she said? And has the club paid the ASCAP and BMI licenses? That should protect you just as it does the thousands of cover bands out there playing Freebird or Stairway to Heavan every night.

hmmmm... tough to prove in court, but sometimes that doesn't stop anyone from filing a suit. It takes deep pockets to prove your innocence, then again, what would they gain by suing some schmuck player who probably lives gig to gig? not a big payday there, they would lose more in their billable hours than they could ever hope to collect.
 
#9 ·
And lawyers wonder why people run the gamut from frustration to downright disdain for them. Where is common sense in all of this?
 
#10 ·
i know of a twit copywright lawyer in chattanooga that sued a coffee house because one bored employee was playing one of his own CD's over the stereo. something about copywright violation (didnt pay for public performance or something, i dont remember the particulars of the suit, i just know the guy who's CD it was). the lawyer won, almost shut the store down in legal fees.

copywright has its place, and is a good thing, but in the hands of professional sophists, its gonna eventually screw us all. i just have this feeling....
 
#52 ·
i know of a twit copywright lawyer in chattanooga that sued a coffee house because one bored employee was playing one of his own CD's over the stereo. something about copywright violation (didnt pay for public performance or something, i dont remember the particulars of the suit, i just know the guy who's CD it was). the lawyer won, almost shut the store down in legal fees.

copywright has its place, and is a good thing, but in the hands of professional sophists, its gonna eventually screw us all. i just have this feeling....
This is the kind of urban legend that gets people all worked up about copyright infringement. Until 1999, the copyright holder had to prove actual damages. Since 1999 (in the US), there is a $500 minimum statutory damages award, assuming a federal judge finds copyright infringement. The judge can also award "reasonable attorney fees." So, assuming the the coffee shop wasn't charging a cover, the CD owner had a legitimate copy of the CD, and the patrons weren't at the shop to hear the CD, what are the actual damages? Probably none. Could you convince a federal judge that the damages were more than the statutory minimum? No. Could you convince a judge, after awarding $500 in damages, that the reasonable attorney fees was an award sufficient to shut down the business? No. Could you convince anybody that this story is real?

I think, were I the defense attorney representing somebody who had performed an improv solo that they had transcribed, I would have a good shot at showing that there is no copyright violation. Copying the solo onto a CD and selling it, yes, an infringement. Copying a video of the performance and selling it, yes, an infringement. Transcribing the solo and performing it, no. Copyright is to protect the work and effort of the writer/performer. The improv was performed (copyrighted performance) but not written. The effort in transcribing the solo takes effort and time. It may take more musical training than the original performer has. It is a "derivative work" that probably, in and of itself, is entitled to its own copyright.

Is that a grace note at the start of the riff? How many waivers in that trill? Does that run start at mf or ff? Is that a growl before the flip? How far down did the plop plop? Should you transcribe what appears to be a little mistake in timing? These determinations are all the effort of the transcriber, since there is no original written work. Anybody who has transcibed a solo to learn transcription (there is an education exemption) can tell you that the trascription process takes a 100 times the amount of time of the original performance. It's a huge effort (at least for me).

And since reasonable attorney fees can also be awarded to the successful defendant, it's silly to think that BMI is going to come after you for playing your transcribed solo at a picnic.

Mark
 
#11 ·
billmecca.com said:
Andrewfus said:
it frightens me that one day some handjob copywright lawyer will be in a jazz club, hear a cat reference a coltrane lick, and slap him with a copywright infringement suit.

seriously gang, i think this day will come.
Interesting situation, they might consider slapping you with a suit, but how would he/she prove it? have recorded you, without your permission? or would it be a case of he said/she said? And has the club paid the ASCAP and BMI licenses? That should protect you just as it does the thousands of cover bands out there playing Freebird or Stairway to Heavan every night.

hmmmm... tough to prove in court, but sometimes that doesn't stop anyone from filing a suit. It takes deep pockets to prove your innocence, then again, what would they gain by suing some schmuck player who probably lives gig to gig? not a big payday there, they would lose more in their billable hours than they could ever hope to collect.
That sounds like a case of the RIAA sueing someone for singing a Metalica sounds aloud to themselves. It would never stick with any half sane judge.

IIRC, Copyright on a recording applies only to that particular recording. Not the song itself.

Copyright on a transcription is where I'm uncertain. If you 'reverse engineer' what you heard down back onto sheet music, I'm sure it's a grey area

Too bad such decisions are decided by how much money you can spend on legal protection, rather than wether you are in the right or not.
 
#12 ·
well, I don't think anyone's answered my question yet.
Copyright law protects the basic song, not the individual player's parts. If I want to record the song, I file a mechanical license, and hopefully I'll sell enough recordings or get it played on the radio enough for the writers and publishers of the song get a smidget of royalty.
The sound recording protects sound of the actual performance, again not the individual players' parts. If I want to reproduce the sound recording, such as in a compilation CD, again there are royalties.
I know of no such protection for an individual musician's improvised performance of their part in the song. So my question remains, when someone publishes a book of transcribed solos, what compensation if any goes to the performer? Does the law require they obtain any kind of permission from the performer, songwriter, publisher of the sound recording, etc?
 
#13 ·
I'm not a lawyer, but for the sake of discussion, I'll write what I believe.

A creative artist (e.g. a musician, composer, arranger) has the rights to the music that he or she creates, unless it was done as a work for hire. If it was done for hire, the rights depend on the terms of the hiring agreement. If not specifically addressed, it belongs to whomever is paying you.

That means if a band leader found you and hired you, he or his management company owns the music created.

If you played the greatest solo ever in Cherokee last week as part of the Joe Schmoe trio, and Joe recorded it and is selling it on CD, and transcribed it and sold the transcription to Hal Leonard, then he's within his rights as long as you didn't specifically forbid it as part of your hiring agreement. As a common courtesy, he should give you credit for the performance, but even that is up to him. However, it would be fraudulent to credit someone else.

The person or company selling or giving away a transcription must have specific rights or permission to do so. If some unrelated 3rd party recorded a performance, then transcribed the solos, it would be illegal for him to distribute either the recording or transcriptions without permission.

All the transcriptions being informally swapped on the internet are as illegal as the MP3 and video files being shared on Napster and Kazaa. The guitar transcriptions sites were under attack by representatives of the music publishers some years ago. I'm not sure what happened with that, but they shut down many sites back then.
 
#14 ·
We don't seem to have a very definite answer yet. Someone should ask a copyright lawyer.

In fact, I did, informally, a few years ago. Friend of mine worked as a patent/intellectual copyright lawyer for a biggish corporation (this was in the UK but my friend is American and the corporation is a fairly well-known international entity).

I took round the Charlie Parker Omnibook and said, look at this, I've transcribed quite a few more of these things, can I legally publish or distribute them?

He had never thought about the issue before but his answer, basically, was YES -- if I have evidence that the transcription was really my own work, and that I haven't copied previously published work.

Of course, if I transcribe Bird's solo on Parker's Mood and it looks pretty much identical to the one in the Omnibook (or that can be found in several other publications) this is what you'd expect, if we all know what we're doing. To PROVE to a third party that no copying of the Omnibook went on is obviously impossible, but if you -- for example -- brought out a book that contains lots of solos NOT IN the Omnibook, AND still had your original manuscript notes from doing the transcriptions, then this would be pretty acceptable evidence that you had done the work yourself and were not breaking copyright.

He dismissed the idea that it was infringing the copyright of the SOUND RECORDING, because he thought printed matter and recorded matter were quite separate legal areas. After all, a printed transcription is unlikely to hit sales of the sound recording, whereas a pirate CD is a direct copy that immediately threatens the copyright holder's income.

And he dismissed the idea that the creator of an improvised solo has copyright in that particular piece of work. Partly, I guess, because to prove copyright the improvisor would have to demonstrate that what he played was SUBSTANTIALLY new and original and contained no major reliance on the previous work of other people. Anyone who knows anything about 1) music and 2) the law, will realise that this leads into a complete jungle of possibilities -- better just not to go there.

The situation is quite different as regards the composed themes (or "heads"). They definitely belong to the composer or the composer's heirs and assignees, and permission would be required before they could be legally published (unless the composer died more than 70 years ago of course). This might explain why some tunes are prominently absent from the Omnibook e.g Quasimodo, Charlie's Wig, -- the copyrights had ended up in the hands of so many people that getting permission for them was getting too complex (or maybe Aebersold and Slone just didn't get around to them, who knows).

So why haven't I published my own book of Bird solos?

1) Because I haven't done enough yet.

2) Because to be really useful the book should also contain all of Parker's composed tunes, which could mean a copyright nightmare and end up being rather expensive. (Though maybe it wouldn't be such a problem now he's been dead nearly 50 years, and the market for such a publication would be so small, and all bebop musicians throughout the world know these tunes by heart anyway....)

3) My legal advice was given for free over Peter's kitchen table and though I have no reason to think he's wrong, somehow I'd feel happier with a paid-for opinion from a big-shot copyright lawyer or a celebrated law professor.

So, does someone want to retain a lawyer??

Andrew
 
#17 ·
Excuse me for reviving an old thread, butt this is probably the best place to continue the interesting discussion on another now closed thread.

The law is actually quite clear on transcribed improvised solos, though it is not defined as such. I was concerned about this, so have contacted various royalty collection agencies and solicitors.

An improvised solo is an adaptation or development of the original theme (head), and/or part of the arrangement, and as such the copyright is owned by the composer of the theme. So for any tune that John Coltrane wrote himself, the copyright of the improvised solo is Coltrane's (and/or any assignee of the rights) . However the copyright of the improvised solo of My Favourite Things is not.

This is not just the law, but it's the way things have always been don, just look at the author/publishing credits of any jazz record. Nowhere are you likely to see a split.

For Example,I just picked up the forst Coltrane CD form my collection

Track 1: Little Old Lady - Hoagy Carmichael & Stanley Adams; Chappell
Track 2: Village Blues - John Coltrane; Jowcol

These are the composer/publisher details that radio stations etc. use for logging airplays so that royalties get paid appropriately. If Coltrane has any claim to the solo (or any other part of the arrangement) on Little Old lady it would be there.

What this means for transcribers is that any infringement of a copyright is an infringement of the author's copyright, not the improviser's. Generally nobody bothers about such infringements of copyright as either they don't know about them or there is little to gained financially from any such action (until the time that a book of transcriptions suddenly becomes very successful).

Another way to look at it:

If Transcriber A takes down a solo, and transcriber B was to publish it, it is sad but not an infringement of transcriber's A copyright, as he/she does not have a copyright to infringe in the first place.
 
#38 ·
Excuse me for reviving an old thread, butt this is probably the best place to continue the interesting discussion on another now closed thread.

The law is actually quite clear on transcribed improvised solos, though it is not defined as such. I was concerned about this, so have contacted various royalty collection agencies and solicitors.

An improvised solo is an adaptation or development of the original theme (head), and/or part of the arrangement, and as such the copyright is owned by the composer of the theme. So for any tune that John Coltrane wrote himself, the copyright of the improvised solo is Coltrane's (and/or any assignee of the rights) . However the copyright of the improvised solo of My Favourite Things is not.

This is not just the law, but it's the way things have always been don, just look at the author/publishing credits of any jazz record. Nowhere are you likely to see a split.

For Example,I just picked up the forst Coltrane CD form my collection

Track 1: Little Old Lady - Hoagy Carmichael & Stanley Adams; Chappell
Track 2: Village Blues - John Coltrane; Jowcol

These are the composer/publisher details that radio stations etc. use for logging airplays so that royalties get paid appropriately. If Coltrane has any claim to the solo (or any other part of the arrangement) on Little Old lady it would be there.

What this means for transcribers is that any infringement of a copyright is an infringement of the author's copyright, not the improviser's. Generally nobody bothers about such infringements of copyright as either they don't know about them or there is little to gained financially from any such action (until the time that a book of transcriptions suddenly becomes very successful).

Another way to look at it:

If Transcriber A takes down a solo, and transcriber B was to publish it, it is sad but not an infringement of transcriber's A copyright, as he/she does not have a copyright to infringe in the first place.
Isn't that the same thing as, "You cannot copyright an improvisation"?
 
#19 ·
Not if you are the performer, but if you are the promoter of a concert of any significant size (in many countries) you need a licence and are required to return a logsheet of the material the bands play. The composers then get paid royalties.

Edit: this is a good thing if you play your own material, as you get a bit of extra money later on.
 
#23 ·
TWO things:

1. I'm not sure I have the same understanding as Pete does inre transcriptions. Let me preface my comment by saying that I'm a published composer/arranger and am quite sensitive to the US copyright laws. As I've been told by others in the biz, the composition (i.e. melody/chord progression) is property of the creator (or whomever they sold those rights to) while the improvised solo is up for grabs, so to speak. Thus, as stated a few posts ago, it is legal to distribute (for free or for $) transcriptions of the improvised solos - just not the composed parts of the tunes.

2. Regarding performance fees for "cover" tunes... in the U.S., BMI, ASCAP, and SESAC theoretically take care of compensating composers and publishers for public performances of works in their catalogs.

best,
~ Rick
 
#28 ·
the last discussion on the closed thread that i saw was about transcriptions being the intellectual property of the transcriber - and the transcriber owning the copyright to his own work.
That was the OPs contention from the beginning. How did the thread get closed?
 
#29 ·
the last discussion on the closed thread that i saw was about transcriptions being the intellectual property of the transcriber - and the transcriber owning the copyright to his own work.
In most cases, this is not true.

The only case of a transcriber owning a copyright would be if the solo they transcribed was done under licence, in which case the original composer (not the improviser) still owns the copyright in the music and the transcriber would own the copyright in the transcription (e.g in the book or PDF file). So in that case if you take a photo or some other copy of the transcription and publish it you are infringing both the composer's copyright in the music and the transcriber's copyright in the transcription. The transcriber can never own the copyright in the music, (unless of course they are transcribing their own solo on their own composition)
 
#42 ·
Andrewfus said:

it frightens me that one day some handjob copywright lawyer will be in a jazz club, hear a cat reference a coltrane lick, and slap him with a copywright infringement suit. seriously gang, i think this day will come.

Gary said:

And lawyers wonder why people run the gamut from frustration to downright disdain for them. Where is common sense in all of this?

Andrewfus, I would not worry my little head about that. I have practiced over 30 years. First of all, I don't think fragments of melody are copyrightable. Second, it wouldn't make any sense to sue most jazz musicians. Third, I think the establishment would be the target. Fourth, just where in hell will you find a lawyer that would recognize a Coltrane lick that is not a jazz musician who could be a target himself?

Gary, you can't reasonably attribute Andrewfus's fear and being based on lawyer conduct.

Both: What I really fear is that I will be in a bar some night, and some jazz musician will attack. me. Since I feel this way, the fear is reasonable and based upon what jazz musicians do. :) :) :)

(Don't get me wrong, I have seen, and opposed on behalf of my clients, a lot of silly and stupid
stuff by lawyers.)
 
#43 ·
#51 ·
Stef,

The law in the US is complex, and generally favors the full rights of the composer over any sort 'fair use' (a la recording mechanical licenses). I have not heard that improvised solos are property of a song's composer. I was always under the impression that improvisations were a little more 'up for grabs,' if you will, but I could very well be mistaken.

Regarding the chord changes: I believe this area is a little fuzzier. I don't believe it's quite accurate to state that chord changes are not or cannot be protected be copyright. That said, I do know that Jamey Aebersold distributes a book (Pocket Changes) which does exactly what you describe: chord changes, form, title -- no melody. And, as Jamey is (1) an upstanding citizen and (2) in the public eye, I would expect that this publication is above-board and legal.

Are you in the U.S.?
~ Rick
 
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