A Copyright Question, What is the legal position regarding 'arrangements'? Options

[Swell Box]

What is the position regarding 'arrangements' of an orchestral work for organ, where the composer (in this case Sir Edward Elgar) died more than seventy years ago, but other, more recent arrangements for organ are known of?

The difficulty we have is that the other organ arrangements we know of have been commercially recorded, but the scores are not commercially available.

If (for example) a music student were to write his or her own arrangement for organ from the original Elgar score, what would be the limitations on use, and what precautions would they need to take to avoid breaching the copyright of other arrangers; even though the other arrangers scores are not available for comparison?

Is this simply a 'No No', or can it be done without any major difficulty?

SB

[linda.ff]

What is the position regarding 'arrangements' of an orchestral work for organ, where the composer (in this case Sir Edward Elgar) died more than seventy years ago, but other, more recent arrangements for organ are known of?

The difficulty we have is that the other organ arrangements we know of have been commercially recorded, but the scores are not commercially available.

If (for example) a music student were to write his or her own arrangement for organ from the original Elgar score, what would be the limitations on use, and what precautions would they need to take to avoid breaching the copyright of other arrangers; even though the other arrangers scores are not available for comparison?

Is this simply a 'No No', or can it be done without any major difficulty?

SB

I can't really see how other people's arrangements can affect your own rights. Otherwise nobody would be in a position to arrange anything popular that's already been done. If you're not copying their arrangements, you can't be breaching their copyright, surely?

(Thus raised a smile for me because way way back then, the orchestration question for my finals was to orchestrate part of the Elgar organ sonata - other way round. I made silly errors with the numbering positioning of the horns in my score, repeated them when I was viva'd about it, and lost myself an alpha. Daft way to examine orchestration, at a desk for 3 hours in silence...)

[Swell Box]

What is the position regarding 'arrangements' of an orchestral work for organ, where the composer (in this case Sir Edward Elgar) died more than seventy years ago, but other, more recent arrangements for organ are known of?

The difficulty we have is that the other organ arrangements we know of have been commercially recorded, but the scores are not commercially available.

If (for example) a music student were to write his or her own arrangement for organ from the original Elgar score, what would be the limitations on use, and what precautions would they need to take to avoid breaching the copyright of other arrangers; even though the other arrangers scores are not available for comparison?

Is this simply a 'No No', or can it be done without any major difficulty?

SB

I can't really see how other people's arrangements can affect your own rights. Otherwise nobody would be in a position to arrange anything popular that's already been done. If you're not copying their arrangements, you can't be breaching their copyright, surely?

The problem we anticipated is that, by the nature of the orchestral work concerned, the organ arrangement is likely to be very similar to an existing organ arrangement, but of course it would be impossible to know how similar it is because we have never seen it!

I suppose it might be worth sending a copy to the owner of the other arrangement to ask whether he or she has any objections to its use.

SB

[mrbouffant]

If an existing arrangement is not publicly available then the copyright holder would surely need to prove that you had access to it in order to claim you had blatantly copied it. This assumes of course that your new arrangement was extremely similar to the existing arrangement.

I would think this would only be of a concern to the copyright holder if you were looking to sell or commercially record the new arrangement anyway - otherwise, how would they know you had made a new arrangement in the first place?

In short, worry not.

[Swell Box]

If an existing arrangement is not publicly available then the copyright holder would surely need to prove that you had access to it in order to claim you had blatantly copied it. This assumes of course that your new arrangement was extremely similar to the existing arrangement.

I would think this would only be of a concern to the copyright holder if you were looking to sell or commercially record the new arrangement anyway - otherwise, how would they know you had made a new arrangement in the first place?

In short, worry not.

Fair comment.

I thought there had been a legal case recently concerning two, very similar arrangements (or re-arrangements) of a popular tune. I seem to remember the Court ruled that 'not knowing about the existence of another arrangement' was no defence in law, but I cannot recall any details.

I am sure Barry will have some words of wisdom. (IMG:style_emoticons/default/smile.gif)

SB

[Barry Williams]

In this case the composer's works are out of copyright. (Edward Elgar died in 1934). Therefore anyone may make an arrangement without permission. That arrangement acquires its own copyright and the arranger has full control over what is done with that arrangement until the usual time limit. (Life plus seventy years.)

If an arrangement is made that is similar to an existing arrangement there could be legal action. Not knowing about the other arrangement may well be no defence.

There are specific exemptions in the Copyright Designs and Patents Act for educational purposes. Section 29 deals with private study. Section 32 permits limited copying and includes examinations. Section 34 deals with performances.

Many of the orchestral works have been arranged for organ, some in Elgar's lifetime and many within the copyright period. There was a minor flurry of 'Nimrod's' for organ when Elgar first came out of copyright and before he went back into copyright, albeit not for long. (i.e. When the rule changed from fifty years to seventy years.)

There is no legal bar on arranging Elgar's works for organ, provided that the arrangement does not infringe an existing arrangement, nor any bar on using the arrangement. (i.e. Playing, broadcasting or recording.) The only relevance of it being done by a music student is if relief is sought under the sections of the Copyright Act as mentioned above. This is not an issue given the date of the composer's death.

Barry Williams

[Vox Humana]

If an arrangement is made that is similar to an existing arrangement there could be legal action. Not knowing about the other arrangement may well be no defence.

Would it then be for the first arranger to prove that his work had been copied? I imagine such an action could get rather messy.

Presumably similar considerations would surround the reconstruction of missing voices in early Tudor church music. Quite a lot of this repertoire has a voice part missing (usually the tenor) and since there is rarely much option over where to fit points of imitation and frequently restricted choices for how a part can move, the potential for similarity between any two reconstructions of a piece is quite high. Of course, this raises the question of whether such work would be copyright anyway. (IMG:style_emoticons/default/sad.gif)

[Barry Williams]

In a case of this type it would be for the person bringing the action to prove his case.

Your point about reconstruction of parts is valid and similar to filling in the missing harmonies in music of the Stanley- Boyce style - there are very limited possibilties. Again, it would be for the person bringing the action to prove their case.

Any reconstruction attracts its own copyright.

Barry Williams

[Vox Humana]

Thank you, Barry.

[Swell Box]

Thank you Barry, and thank you Vox for raising another interesting and important point.

Best wishes to all.

SB