I was wondering if anyone knew about the laws regarding sharing transcriptions. I am mostly just curious about say the laws regarding selling a transcription of another artist. Just how much right does an improviser have to his own improvisation?
I guess the improviser holds on to the rights of the musical information within the solo, and so if the the solo is then transcribed then that would be treated almost like any other composition.
I say almost because there would already exist a recorded version on which no rights would have been recognised as the improvisation was not a composition at the time. I suppose it can't become a composition retrospectively.
Basically copyright laws screw improvisers. The person who writes the original melody (which is often hardly even stated) gets all the credit and those who really create most of the music get no recompense.
Not that I am an expert in copyright. It is far too complicated for normal musicians to understand.
An improvisation is a composition. Since it has been preserved on a recording, the improviser owns the rights to it. If you transcribe it, you're infringing on his rights, not the rights of the record company.
They may have a theoretical IP claim to the musical ideas in the solo but this is purely hypothetical unless a transcription is made. A transcription in effect becomes a composition at the point that it is transcribed.
Just look at any the composer credits for any jazz album. If it is standards then the improvising musicians will NOT be credited as having had ANY PART in the composition of the music, despite the fact that their improvisation made the music what it is. Only the 'original' composers get the credit.
This seems to be in direct contradiction to the bit of law you linked to. The crux of the problem is this sentence -
"An artist receives a copyright the moment his or her work is created".
The trouble is that just does not describe most jazz which rather has a combination of authorship, with improvising musicians adding their own statements to the original compositions. The finished composition/improvisation should not belong entirely to either the original composers or the musicians who were doing the improvising as it is a collaboration, the improvising musicians and the original composers have all contributed original material. This is not recognised by the copyright system at present which gives ALL the credit to the original composers and NONE to the improvisers who often created the bulk of the performance.
It is far from clear though as a solo on a standard probably does not constitute an 'original work' which is why the soloist gets no compositional credit in the first place. It may be that it becomes an 'original work' at the moment of transcription as that is the first time that it has been separated from the original composition which is owned by someone else, but maybe not. If the improviser really does own the rights to solo then copyright payment should be due any time that solo is played on the radio or copied for sale on cd, just as if it was part of the composition. But it isn't regarded in this way by copyright law.
I am probably wrong though as I am not a lawyer.
Since for copyright purposes an improv can be considered a composition if it is recorded or written down, can a member of BMI or ASCAP register it as a composition and receive performance royalties for it?
I wonder if jazz musicians have ever considered doing this.
If we are to consider the improvisations as a new composition, then the player has not simply recorded the composer's work but created a "derivative work."
In which case, (again not sure about this) he has technically violated the composer's copyright if he didn't have permission.
SO technically, it is illegal (or a gray area) to improvise over standards, but the composers don't care as long as you don't try to claim any authorship over the resulting work.
Someone posted an article about this a while back, if I recall correctly.
Not sure what effect this has on publishing transcriptions, but it's worth noting that on the recording, the improviser is not credited as a composer.
unfortunately, the harvard law review article cited in the earlier thread is no longer available online for free. if there are any practicing attorneys here, heinonline service would have it in their database (volume 118, april 2005). too bad we didn't think to save the contents when it was available.
the gist of the arguments, iirc, is that jazz could not exist if other copyright conventions were applied, since if improvisations were considered as "derivative works", then all recordings of them would be illegal, as PRIOR permission is required to make derivative works.
further, improvisation draws from a common pool of ideas, which, if considered in the same way as composed melodies, would preclude their use by anyone after the first recording of each idea. and, then, there is the common device of deliberate quotations.
the author's conclusion was that the recording could be copyrighted as a 'sound recording', but the 'content' could not. thus transcriptions of improvised solos would not belong to the performer. the transcriber might be able to claim publishing rights, in the manner of an arranger of public domain works.
a gray area in the law, as stated. perhaps not at all in the best interests of jazz musicians to have it settled in litigation.
I dont know if it is technically illegal to improvise over another's work, as long as the composer is getting his royalty for it. Derivative works are only illegal if the composer withholds permission to make the derivation. There must be enough leeway in the rule about derivations to allow for differing styles in performance, including embellishments. Would this extend to improvisation, as long as the original head remains more or less intact?
I would be interested in following if anyone pursued this. After all, it doesn't take away from the original composer for an improvisation to also derive copyright protection.
2. I assume that no improvisor has ever tried to be so credited by transcribing his own solo into tangible, copyrightable form.
Of course, I realize that common practice/experience suggests that it is not in fact illegal (since no one ever gets prosecuted for it or anything), but was just pointing this out to illustrate that improvising over standards occurs in a gray area of copyright law that has never been clearly defined and on its face does not smile on the efforts of jazz musicians.
I think the point is that no one does, since it's never been tested (to my knowledge).I dont know if it is technically illegal to improvise over another's work, as long as the composer is getting his royalty for it.
Or if permission was never sought in the first place.Derivative works are only illegal if the composer withholds permission to make the derivation.
This illustrates the problem that I was trying to get at, namely that current copyright law seems to impy that either:There must be enough leeway in the rule about derivations to allow for differing styles in performance, including embellishments. Would this extend to improvisation, as long as the original head remains more or less intact?
1) Jazz improvisations fall under some idea "performance variation" as you're suggesting and therefore are not eligible for protection
2) Jazz improvisations are substantial works in their own right and therefore constitute "derivative works", which earn protection but require prior permission.
The practical implication of the law seems to be that for purposes of royalties on recordings, film synch, and airplay, 1) is followed, which would seem to imply that the musicians don't own the rights to their improvisations. I'd guess there is some precedent to support 2) as well.
The point is that these areas are ambiguous, and the ambiguity makes jazz permissible but seems to stop short of recognizing it as eligible for protection.
It would be really nice if someone with IP expertise would weigh in here.
As would I. But there are complicated issues here, and it would make certain rights issues much more complex.I would be interested in following if anyone pursued this. After all, it doesn't take away from the original composer for an improvisation to also derive copyright protection.
Composers are compensated based on the length of the song on recording. If the improvisation is a composition, then you'd have:
"All the Things You Are (Kern/Hammerstein) 3:12'"
"Improvisation (Davis/Shorter/Hancock) 8:27"
"All the Things You Are (Kern/Hammerstein) 1:36"
How would the statutory royalties be parceled out in this situation?
If rendered as a derivative work, then the original composer would have only partial credit, which is a scenario I don't think the current rights holders would endorse.
Maybe, but I don't think the transcription has much to do with it. You could certainly attempt this (one way to possibly get the issue before a court). Unless you had significant radio play, it would be unlikely to make any practical difference. I'm not sure how radio stations would deal with the royalty problem.2. I assume that no improvisor has ever tried to be so credited by transcribing his own solo into tangible, copyrightable form.
I do think that improvisations should be copyrightable, but I'm just playing devil's advocate here based on the ambiguity of the copyright law to point out how it disadvantages jazz musicians.
Usually these issues are litigated on a case-by-case basis--it's a question of fact to be determined if a piece of music is a wrongful derivative or otherwise copies a COPYRIGHTED tune.
Thus, you would get "experts"--PhDs in music, musicologists, etc to testify in a particular case that song A violates song Bs copyright--they would scrutinize it, note-by-note. it would be interesting if Song A is an improvised piece of music based on B, a copyrighted standard. here, a very melodic soloist maybe in more legal trouble than someone who is perhaps more err, abstract.
It would be a battle of experts and academics.
Another very gray area is the "fair use" clause ( which basically deals with educational/ non profit situations ) but an IP attorney would have to weigh in ob this point ..
as well as the rest of all this..
Swing ..or I'll kill you ( Bill Potts )
Improvisations are copyrightable, but only if they form a composition of 'original work'. You can call 10 minutes of free impro a composition and get paid if it is broadcast but if someone plays 6 notes (is it 7?) of 'all the things' near the front then it is goodbye to all the composition royalties and the piece suddenly turns into an original composition by Kern/Hammerstein. Their grandchildren (or whoever) get to enjoy the cash that really the improvisers should be getting most of.
It is mad.
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