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Russell Letson
`Olu`olu
USA
504 Posts |
 Posted - 11/29/2007 : 08:15:04 AM
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I'm not sure that garden-variety arrangements (including instrumental versions of songs) would be considered derivative works *unless* the composer could argue that omitting the lyrics would amount to a change in the fundamental character of the work. This is an aesthetic and/or cultural argument that would make for very interesting case law. Substitute a change of instrumentation for omitting-the-lyrics and see whether the argument has as much appeal--"I composed this piece specifically for the clarinet, and a violin version ruins my carefully-considered phrasing, which is rooted in the rhythms of breathing. Bowing just ain't the same."
There are at least two angles here: permissions (that is, control) and payments. The compulsory license for recordings is mostly about trading a specific, limited permission for an assured and regulated payment. Most of the rest of copyright law has to do with defining the degree of control the copyright holder has--and, as Keola points out, there is no compulsory license for performance. But if a composer has contracted with one of the performance-rights organizations, I would think that there is an implicit blanket permission to perform the licensed works in venues that have paid the fees to the PRO(s). At least, that's what I get from reading as many explanations of the system as I can stomach this early in the day. (Kinda makes my teeth ache.)
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keoladonaghy
Lokahi
257 Posts |
Posted - 11/29/2007 : 10:13:58 AM
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| Mahalo Russell. Personally I would argue that omitting lyrics does change the fundamental character of the work - it strips out the meaning. Other composers may feel differently and that is their call, but to me the lyrics are the content and the melody, harmony and rhythmic aspects simply enhance the delivery. Personally I would not give anyone permission to record an instrumental version of any mele that I wrote, and if they went ahead and did it under a compulsory license, well, I don't know if I would litigate but I would certainly consider it. |
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rendesvous1840
Ha`aha`a
USA
1055 Posts |
Posted - 12/01/2007 : 12:10:20 PM
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I sure don't understand all the legalities of this, and what I had in mind was a sound file to email to some friends who asked to hear my playing. I had no intention of releasing the recording. I'll use a public domain song for this purpose, and one which I was able to get permission from the composer. If distance weren't a factor, I'd show up in their living room with my guitar, and play live. Perhaps down the line. Where does this leave me if I should play at an open mike night, or perform in a coffee shop? I have been under the impression it was the venue who was responsible for the royalties.Guess I'd better seek legal guidance before I do anything of the sort.
Paul |
"A master banjo player isn't the person who can pick the most notes.It's the person who can touch the most hearts." Patrick Costello |
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Russell Letson
`Olu`olu
USA
504 Posts |
Posted - 12/01/2007 : 3:22:13 PM
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I find it hard to imagine that a home-made recording, produced for the private enjoyment of friends, is going to constitute infringement--it's a reasonable extension of private use already built into the part of copyright law that defines "public performance." Certainly as a practical matter, it's way below the radar, unless said friends decide to put it on the radio or use it in a movie soundtrack or some other crazy scenario.
I suppose it would be inconsiderate and tactless to use a tune (even a recorded tune) that you knew the composer considered to be part of *his* personal stash, but that's part of cultural/personal good manners rather than the law. As far as actual public performance goes, your impression is correct: it's the venue's lookout to pay the various PROs. While not all compositions are necessarily covered by a PRO, I personally wouldn't worry about any tune that's been commercially recorded/distributed and thus is already available for cover recordings.
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Hula Rider
Lokahi
USA
215 Posts |
Posted - 12/10/2007 : 11:27:36 AM
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quote:
Originally posted by wcerto
Basil - what Paul was doing in seeking permission was not necessarily from the legal standpoint, but more of a matter of respect and honor toward the man who wrote the song. (Paul is away deer hunting this week and cannot answer).
Aloha -
Yes, definately contacting living artists regarding their work is the pono thing to do. It was such a blessing to actually be able to listen to Dennis Kamakahi talk about the mana`o of his beautiful mele, and discuss them with him before choreographing hula.
And I was touched and appreciative when one of Mark Keli`iho`omalu's haumana took the time to phone me from the Mainland and discuss my keiki hula, "He Mele no Kauila," before she choreographed it. Her kumu taught her well!
Malama pono,
Leilehua |
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Basil Henriques
Lokahi
United Kingdom
225 Posts |
Posted - 12/10/2007 : 12:38:16 PM
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quote:
Originally posted by wcerto
Basil - what Paul was doing in seeking permission was not necessarily from the legal standpoint, but more of a matter of respect and honor toward the man who wrote the song. (Paul is away deer hunting this week and cannot answer).
I go along with THAT sentiment wholeheartedly.
Respect where it's due is essential, but my understanding of the copyright of recorded songs/tunes only extends to what the norm is in the United Kingdom and Europe. I have been a recording artist since 1967 contracted as a solo instrumentalist to one of the major labels, EMI, and as far as the publishing department is concerned I have never been told by them that ANY tune/song was "out of bounds" without permission.
I can only conclude that all commercially available material is usable by the record label just paying the appropriate fee to whatever collection agency has the publishing rights. If there are no rights assigned the fee goes into a "Slush Fund", and is distributed to all the members of the association equally. |
Edited by - Basil Henriques on 12/10/2007 2:19:01 PM |
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Basil Henriques
Lokahi
United Kingdom
225 Posts |
Posted - 12/10/2007 : 1:03:22 PM
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When I produced a female vocalists version of Keola Beamer's song "The beauty of Mauna Kea", I personally contacted the writer to get the definitive lyrics because the Hawaiian female version we were listening to had colloquialisms in the lyrics, and between those and the strange pronunciation (To our UK ears) we were having a problem deciphering the meaning.
Not once did the question of "permission" to record come into the discussion.
By the way, we decided to drop the opening chant as it would have very little meaning here in this part of the world. Would that not have counted as a substantial change to the meaning of the song ?
Here is an interesting INTERNAL EMI document about performers royalties, circulated to all contracted artists for petitioning the EU Parliament. (N.B Writers in this document refers to those of literary and not musical works)
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Edited by - Basil Henriques on 12/10/2007 2:19:28 PM |
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Mark
Ha`aha`a
USA
1628 Posts |
Posted - 12/10/2007 : 1:19:42 PM
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Not once did the question of "permission" to record come into the discussion.
Although it's been said many times many ways... oops, wrong topic. But we have discussed this quite a bit.
Once a song has been recorded and released you do not need permission from anyone to record it yourself. You do need to pay for it, but the publisher cannot prevent you from recording your version of the song. It can be an instrumental; it can be in another language, it can be in bad taste-- no matter. If it's been recorded, you can record it, too. Just ask William Shattner.
Ditto recording a version for your own personal use. No one cares, really.
The issue of paying respect to Hawaiian composers is another matter.
For the record- I am sorry that copyrights have been extended as long as they have in the US. Personally, I wish we'd go back to the original intention of the law. Let's reap the benifits for a few years, then share the songs with the world. (Then let's all hold hands and sing "Kubaya" and go to Aunt Molly's for cookies...)
However, I support 110% the efforts to get the recording artists, not just songwriters and publishers, paid for their conributions when their recordings are played on radio, used in movies, online, etc etc.
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Basil Henriques
Lokahi
United Kingdom
225 Posts |
Posted - 12/10/2007 : 1:46:35 PM
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If you're with ASCAP, BMI, SESAC, NMPA (through its licensing subsidiary HFA) or any of the copyright protection and representational agencies, Then the MCPS, PRS, GEMA (GEMA. The Copyright Administration Act (UrhWG) of 9th September 1965 ...) or any other European collection agency, administer your rights in Europe and collect fees on your behalf, you have assigned them the rights with your agreement.
Quote from MCPS-PRS Alliance Webpage.quote:
If you play music in your business or want to include it in your product you need clearance to do so from the owners of that music. PRS and MCPS represent the owners and can get you the clearances you need. We are a not-for-profit organisation, enabling you access to the world's music in the most efficient way.
If you want to check the repertoire covered by MCPS and/or PRS please visit ISWC's database: http://iswcnet.cisac.org/ISWCNET-MWI/logonPublic.do
MCPS Contact Info.
M.C.P.S. (Mechanical Copyright Protection Society) is the body who issues the licences in the UK and are who you will need to contact to apply for one.
Here are their contact details.
MCPS Ltd, British Music House, 29-33 Berners Street, London, W1T 3AB
Tel: 020 7306 4037 - Fax: 020 7306 4150
http://www.mcps-prs-alliance.co.uk/about_us/aboutcopyright/Pages/aboutmusiccopyright.aspx |
Edited by - Basil Henriques on 12/10/2007 2:18:26 PM |
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Basil Henriques
Lokahi
United Kingdom
225 Posts |
Posted - 12/10/2007 : 1:59:48 PM
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http://www.youtube.com/watch?v=KgJ2DhGCbEE
AP2 License agreement page..
http://apps.mcps-prs-alliance.co.uk/AFL/Default.aspx
10.1 For the purpose referred to in clause (5 and subject to clause 10.5, the Producer may make such modifications to the relevant Musical Works) as the Producer considers necessary in order to satisfy the requirement of the relevant recording.
10.2 No such modification shall however be made which:-
(a) would amount to an adaptation of the Work; or
(b) would amount to a derogatory treatment of the Work within the meaning of Chapter IV of the Copyright Designs and Patents Act 1988,
6.5% of the CD's selling price buys the license to record ANY published work. |
Edited by - Basil Henriques on 12/10/2007 2:23:18 PM |
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Basil Henriques
Lokahi
United Kingdom
225 Posts |
Posted - 12/10/2007 : 2:04:59 PM
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Notwithstanding all of the above, I would most definitely respect the writer's wishes if they didn't want me to record a work of theirs, 'though why they would refuse is not clear to me.
Maybe someone can elucidate, as I would have thought that the revenue is surely some part of why songs are written and then performed/recorded by the composer. |
Edited by - Basil Henriques on 12/10/2007 2:18:06 PM |
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Basil Henriques
Lokahi
United Kingdom
225 Posts |
Posted - 12/10/2007 : 2:21:01 PM
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quote:
Although it's been said many times many ways...
Bet you wish you'd written THAT one Mark ?
Same to you by the way..
Drat it, I keep forgetting to turn off that silly Spinning Reso.. I sincerely apologize for all the edits to my posts but I just keep leaving the "Profile Signature" button/switch on! |
Edited by - Basil Henriques on 12/10/2007 2:24:59 PM |
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keoladonaghy
Lokahi
257 Posts |
Posted - 12/10/2007 : 7:01:57 PM
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quote:
Originally posted by Mark
quote:
Not once did the question of "permission" to record come into the discussion.
Once a song has been recorded and released you do not need permission from anyone to record it yourself. You do need to pay for it, but the publisher cannot prevent you from recording your version of the song. It can be an instrumental; it can be in another language, it can be in bad taste-- no matter....
Mark, I disagree here on two points 1) recording in another language and 2) doing an instrumental. I've discussed #2 previously and won't reinterate.
In one of his presentations at a HARA-sponsored songwriting event, a prominent Honolulu IP attorney told us and provided statutory references that you cannot even go so far as to change a place name without permission. One of the few lyrical changes he told us that you can make without consent is pronouns that reflect gender (his to hers, her to him, or vice versa). He also stated with no uncertainty that you cannot simply create a translation of a song and claim compulsory license. This point was a bit more detailed and my memory not perfect, but I believe he recalled a case where this was done and allowed, but that the original composer gained the rights to the translation as a condition of allowing the translation.
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Edited by - keoladonaghy on 12/10/2007 7:15:37 PM |
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Mark
Ha`aha`a
USA
1628 Posts |
Posted - 12/11/2007 : 10:16:53 AM
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Hi KD -
Thanks, that is enlightening. It doesn't jibe with what I was taught back in the Middle Ages, tho' (yes, I do have an advanced degree in Arts Administration--- so I am eminently qualified to sweep the stage at any major theater in the world...). But it always best to err on the side of caution.
I think the basic issue RE: instrumental arrangements has been hashed out quite a bit in the past. Anybody know the lyrics to "Apache?" "Take the A Train?" (OK, bad example. I do know the lyrics to that one.) But you get my drift-- there have been many instrumental covers of standards by jazz artists over the years. I'd seriously doubt if each one required a special license.
Yes, you have to pay to play "Happy Birthday." But the publisher couldn't care less if you sing it or just toodle it on the ocarina-- they'll cash the check either way.
Ditto when I recorded "Mood Indigo." All I had to do was pay for it, even though my version is instrumental, uses very different changes and even mucks with the melody a bit. The difference is that I am not claiming any ownership in the song based on my contributions-- that's what they mean by a "derivative work."
As for translations: again, it has been unbelievably common. "Autumn Leaves" jumps to mind. Also "Girl from Ipanema." Though my personal favorites might be "Jumping Jack Flash" in Hungarian and "Lullabye of Birdland" sung in Tahitian.
Though, to be sure, the original songwriter would certainly keep the rights. ("Autumn Leaves," f'rinstance, is usually credited as "Music by Joseph Kosma, English lyrics by Johnny Mercer." Even if you record it instrumentally.)
But again, what we are talking about is two different things: a compulsory license simply means you can record a song that has been previously recorded and distributed. The law even lets you to create "an arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance."
To be sure, you cannot "alter the basic melody or fundamental character of the work," but that is open to interpretation. Or, in other words, something lawyers get rich over.
Think any number of hip hop songs that use James Brown samples. That got litigated bigtime. The upshot? As long as they pay for 'em, they can use 'em. Or Alison Kraus' version of a Beattles's song. Or just about any cover song ever recorded.
Now derivative works are another kettle of fish altogether. That's where you change an existing song, and claim some degree of ownership. And that's where the original author can block you for any reason at all.
Now in your case, I fully understand your position: in the Hawaiian tradition, the mele is everything. So an instrumental version would be vastly diferent. However, Myrna Kamae didn't bat an eye when I asked to publish my instrumental arrangement of "Morning Dew."
Inasmuch as we are on Taropatch, what we want to do is always is show respect.
Sadly, what the whole issue usually comes down to is "harm." As in "Money." At the level most of us are talking about -- self released CDs of at most a few hundred copies, there isn't any real "harm" in the legal sense. Rather, we need to be aware of the cultural implications of our actions.
And I'd love to have the contact info for the attorney.
Oh, and I'm probably wrong, too.
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slipry1
Ha`aha`a
USA
1511 Posts |
Posted - 12/11/2007 : 6:08:17 PM
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quote:
Originally posted by Basil Henriques
quote:
Although it's been said many times many ways...
Bet you wish you'd written THAT one Mark ?
Same to you by the way..
Drat it, I keep forgetting to turn off that silly Spinning Reso.. I sincerely apologize for all the edits to my posts but I just keep leaving the "Profile Signature" button/switch on!
I believe that Matt Dennis and Mel Torme cornered that one. |
keaka |
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Public Domain
