copyright law governing transcribed solos?

[hornstar]

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

[gary]

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).

[tyler_terlecki]

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

[hornstar]

how is Hal Leonard, or anyone else, legally allowed to publish a transcription of somebody's solo?

[Media Lint]

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.

[Media Lint]

Hal Leonard has a licensing department or guru that handles this with a phone call and probably a few hundred dollars, if that much. Not much.

[Andrewfus]

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.

[Bill Mecca]

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.

[gary]

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 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....

[JfW]

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.

[hornstar]

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?

[RatBatBlues]

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.

[amg]

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

[saxfree]

I am thinking about making a website to host all the transcriptions I have done. Would this be legal? Of course I wouldn't charge anything to view them.

[JfW]

I have learned quite a bit since that last post.

How silly of me.