Copyright law exposed through ancient Scottish melody

February 28, 2019, 4:57 PM · I recently obtained a copy of the Skene MS, a collection of ancient Scottish melodies, first published perhaps 400 years ago.

Clearly, the copyright of the composers, ascribed by the very act of creating each melody, has lapsed.

I have arranged one tune, No 59 (unnamed) for a flexible string ensemble, but here a string quartet:

Anyone who compares the published tune, No. 59 in the Skene MS, and who listens to my arrangement, will acknowledge the considerable "value-added" impact of the arranger.

Under our copyright laws, even if I had permission of a copyright owner to make the arrangement, the legal ownership of the arrangement is with the original copyright owner.

The arranger has no legal rights to the arrangement (adaption).

The rights of "valued-added" component pass back to current copyright owner of the source piece.

This is theft, pure and simple.

Moreover, study this aspect of copyright law, and you will find that any adaption of the copyright piece without persmission is illegal, and, further, that adaption is (again) owned by the current copyright owner of the source material.

If you sing or play a tune you have heard, and it is currently owned by some party, you are making an adaption (arrangement), and you have breached copyright.

It is appropriate that the copyright owner of the source music is paid a fee under performance rights when you perform the arrangement. It is theft when they also own the arrangement.

Arrangers make some pretty ordinary, even poor quality, source material listenable. They should continue to own their value-added content.

(Of course, I understand the ownership wrinkles that occur when you make your creative contribution as an employee, when the empolyer owns the copyright. But, here, the arranger is being paid for the creative imput.)

Replies (7)

February 28, 2019, 9:13 PM · Can you specify your country? Laws are different :)
Edited: February 28, 2019, 9:49 PM · Australia.

But there are international treaties on this stuff, and we simply "fall into line" with a big group of countries.

(I don't think some Asian coutries are bound by the same copyright laws (sic)).

I have had a quiet, sensible "disagreement" with reps from Hal Leonard, for they are quite happy with the current situation. (When they publish music, copyright is passed to themselves. Part of this is fair -- the part that applies to their published work. My adaption, written without Hal Leonard being any part of the process, should not be owned by them. Theft, I say.)

February 28, 2019, 11:20 PM · If one takes a published piece of music that is in the public domain, and makes a "substantial" change to it in the form of a new arrangement, then one may be able to copyright the new arrangement.

Hal Leonard sometimes publishes arrangements of works that are no longer, or never were, under copyright protection. Their arrangements may be copyrightable if the changes meet certain standards.

If you arrangement shares substantial similarities to the changes Hal Leonard made, then you can be in violation of their copyright, even if you did not reference their published work when you made your arrangement.

From my admittedly limited experience in copyright disputes of very old music, victory usually goes to the one with the most money or the patience to spend a lot of time to make their case.

When I arrange and publish an ancient piece of music, I specifically reference the ancient manuscript in which it was published. If your only source of the music is an edited, republished and copyrighted compilation of the music, you leave yourself open for a copyright infringement claim, even if the republished work is essentially identical to the original score published many, many years ago.

The claim may not be valid, but most people do not have the time or financial resources to do battle with a big publishing house.

Edited: March 1, 2019, 12:03 AM · Hi Carmen,
If a piece of music is in "the public domain", then my arrangement of it is copyright to me. No. 59 Skene MS is one such example. Previously published arrangements ... should be avoided as "sources" by arrangers today: you never know what renewal steps have been taken. Or, find the copyright holders and get permission.

If Hal Leonard publishes music, it is copyright to them. Contact them before you touch it.

Echoing one tiny phrase of an earlier piece of music has been found to breach copyright. (Flute motif, Men At Work, "Down Under" :

But these points are not my concern. My interest is that, even if you have permission of a copyright holder, your arrangement belongs to the owner of the copyright.

That is not fair.

Edited: March 1, 2019, 3:15 AM · Graeme - what I assume to be the case but you fail to make explicit is that Hal Leonard is the publisher of the Skene ms tunes in your possession. Well then, you are exploiting their industry and it seems quite reasonable that they should want to retain control over that. If it were true that "If you sing or play a tune you have heard, and it is currently owned by some party, you are making an adaption (arrangement), and you have breached copyright", we'd all be breaching copyright all the time which any court of law would recognize as ridiculous and overrule. On IMSLP you'll find an abundance of public domain material that you can arrange to your heart's content and retain copyright.
March 1, 2019, 3:13 PM · I guess this also opens up the whole can of worms of a composer say owns their piece, but is hopeless as an instrumentalist, gets no exposure of their piece without the accomplished instrumentalist. There is a symbiotic relationship between the composer and accomplished instrumentalist, but yet the instrumentalist only gets a fraction of the royalties — so is that fair?
March 1, 2019, 5:51 PM · In the United States, a copyright owner owns the right to make and control arrangements of a work.

But one is free to negotiate compensation and credit for the arrangement with the copyright holder. So I guess I do not understand the theft claim.

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