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Thread: Transcription Copyright?

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    Transcription Copyright?

    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?
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    Piano/Compose/Arrange engelbach's Avatar
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    Quote Originally Posted by ThinlineJazz View Post
    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?
    An artist owns his own improvisation if it is written down or recorded.

    However, I don't think there is much policing of transcriptions on the Web.
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    Quote Originally Posted by engelbach View Post
    An artist owns his own improvisation if it is written down or recorded.

    However, I don't think there is much policing of transcriptions on the Web.
    I would have thought that for a recorded solo the record label (or whoever owns the recording) owns the rights to that particular recording, which for an normal improvised solo will be the only possible recording. So, unless the improviser happens to own the record label, they will have NO rights over that recording.

    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.

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    Quote Originally Posted by beeboss View Post
    I would have thought that for a recorded solo the record label (or whoever owns the recording) owns the rights to that particular recording, which for an normal improvised solo will be the only possible recording. So, unless the improviser happens to own the record label, they will have NO rights over that recording.

    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.
    A record company owns the right to reproduce and sell the recording, but it does not own the rights to the compositions on the recording.

    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.

    http://kb-law.info/wt_dev/kbc.php?ar...lang=EN&mode=1
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    Quote Originally Posted by engelbach View Post
    A record company owns the right to reproduce and sell the recording, but it does not own the rights to the compositions on the recording.
    Quite right. I am just pointing out that for an improvisation (unless it is transcribed) the recording is the only possible expression of that musical idea, so as the musician (usually) has no rights over that recording then they receive no obligatory recompense for their contribution unless they happen to have composer credits for the tune they are improvising on. Maybe they just got a basic session fee for the recording or maybe not even that.
    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.

    Quote Originally Posted by engelbach View Post
    An improvisation is a composition.
    This is really the difficult area as only performances that are completely free or written by the performers fit this bill. In most jazz that isn't really the case, there is some improvisation but the piece as a whole isn't 'an improvisation'. Rather the performance is based upon an original composition, and in this case the improvisers get NO compositional credit.
    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.

    Quote Originally Posted by engelbach View Post
    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.
    I don't think there is anything wrong or illegal about doing a transcription, but copying and distributing a transcription is a different matter.
    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.

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    Quote Originally Posted by beeboss View Post
    Quite right. I am just pointing out that for an improvisation (unless it is transcribed) the recording is the only possible expression of that musical idea, so as the musician (usually) has no rights over that recording then they receive no obligatory recompense for their contribution unless they happen to have composer credits for the tune they are improvising on. Maybe they just got a basic session fee for the recording or maybe not even that.
    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.



    This is really the difficult area as only performances that are completely free or written by the performers fit this bill. In most jazz that isn't really the case, there is some improvisation but the piece as a whole isn't 'an improvisation'. Rather the performance is based upon an original composition, and in this case the improvisers get NO compositional credit.
    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.



    I don't think there is anything wrong or illegal about doing a transcription, but copying and distributing a transcription is a different matter.
    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.
    You do raise an interesting question.

    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.
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    Quote Originally Posted by engelbach View Post
    You do raise an interesting question.

    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.
    I've thought about this, but I don't think it would work (maybe an IP lawyer could clear this up).
    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.

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    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.

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    Quote Originally Posted by randalljazz View Post
    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.
    Well-stated, Randall. Although I think it would be welcome for this issue to be settled in litigation, because if it became clear that our copyright laws make jazz illegal, maybe enough people would realize that the laws need revision and jazz musicians would be extended some protection for their work. Plus, with any luck we would get to hear Wynton and (even better!) Stanley Crouch testify before the Supreme Court in defense of jazz!

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    Quote Originally Posted by jazz oud View Post
    I've thought about this, but I don't think it would work (maybe an IP lawyer could clear this up).
    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.
    (1) 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.

    (2) 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.
    1. We do freely use chord progressions to produce contrafacts. The protection for chord progressions is gray enough so that people rarely worry about being sued for writing and playing You are All the Things, and so on.

    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.
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    Quote Originally Posted by engelbach View Post
    1. We do freely use chord progressions to produce contrafacts. The protection for chord progressions is gray enough so that people rarely worry about being sued for writing and playing You are All the Things, and so on.
    I realize that Jerry, but I wasn't talking about the chord progression. If you were to play the melody, abandon the chords and improvise on the thematic material or completely free, it is still a modification of the work.
    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 dont know if it is technically illegal to improvise over another's work, as long as the composer is getting his royalty for it.
    I think the point is that no one does, since it's never been tested (to my knowledge).
    Derivative works are only illegal if the composer withholds permission to make the derivation.
    Or if permission was never sought in the first place.
    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?
    This illustrates the problem that I was trying to get at, namely that current copyright law seems to impy that either:

    1) Jazz improvisations fall under some idea "performance variation" as you're suggesting and therefore are not eligible for protection
    or
    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.

    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.
    As would I. But there are complicated issues here, and it would make certain rights issues much more complex.

    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.

    2. I assume that no improvisor has ever tried to be so credited by transcribing his own solo into tangible, copyrightable form.
    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.

    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.

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    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.

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    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..
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    Quote Originally Posted by jazz oud View Post
    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.

    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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