Transcribing vs. arranging

Someone asked recently about the difference between transcribing and arranging, and whether a copyright holder’s permission is needed to perform, say, a piano piece on handbells. These are excellent questions, and I’d like to share some thoughts from my research on copyright, as well as my experience requesting transcription rights from publishers. As stated before, I’m not an attorney, and you need to seek qualified legal advice if you intend to rely on it. However, the need for permission is clearly spelled out in the copyright law.

A transcription uses material that is already there, perhaps assigning musical lines to different instruments than written, or reducing an orchestral score to piano. It would include adapting the work for the range and techniques used by that instrument. An arrangement includes substantial new content. That may be a new harmonization, adding a countermelody, adding another instrumental part, adding an introduction, etc. The line between transcription and arrangement is a grey area, but the U.S. Copyright Law doesn’t distinguish between an arrangement and a transcription: They are both derivative works requiring the copyright holder’s permission. The copyright holder decides how to classify your use, which may affect whether you are charged an arrangement fee.

Here’s some relevant text from the Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92, Chapter 1:

§ 101 Definitions: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. (Emphasis added.)

My interpretation: Under Section 101, adapting a work written for one instrument for another instrument would be considered a derivative work. Examples might include playing a piano score on handbells, playing an SATB hymn on handbells, or playing a work written for flute on solo handbells. This is clearly an adaptation of the original, even if presented only in audible, as opposed to written, form.

Returning to the text of the Copyright Law:

§ 106 Exclusive rights in copyrighted works: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(2) to prepare derivative works based upon the copyrighted work (Emphasis added.)

My interpretation: Only the copyright holder has the legal right to create (or permit) an arrangement, transcription, or other adaption of the copyrighted work.

The above section 106 refers to limitations in sections 107 through 122, listed below:
107. Limitations on exclusive rights: Fair use
108. Limitations on exclusive rights: Reproduction by libraries and archives
109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
110. Limitations on exclusive rights: Exemption of certain performances and displays
111. Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable
112. Limitations on exclusive rights: Ephemeral recordings
113. Scope of exclusive rights in pictorial, graphic, and sculptural works
114. Scope of exclusive rights in sound recordings
115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords
116. Negotiated licenses for public performances by means of coin-operated phonorecord players
117. Limitations on exclusive rights: Computer programs
118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting
119. Limitations on exclusive rights: Secondary transmissions of distant television programming by satellite
120. Scope of exclusive rights in architectural works
121. Limitations on exclusive rights: Reproduction for blind or other people with disabilities
122. Limitations on exclusive rights: Secondary transmissions of local television programming by satellite

You can research these limitations to the copyright holder’s exclusive rights. Unless you find a limitation that explicitly permits the exception you want to claim, assume you must ask permission for whatever you want to do. Copyright law favors the copyright holder and gives others very limited rights. Copyrighted works often contain the phrase “All rights reserved,” putting the public on notice about this, and indicating that the copyright holder doesn’t waive any legal rights. Whenever you want to claim an exception to copyright law, the burden is on you, the user, to identify a legitimate and relevant exemption in the statute or case law. The full text of the statute and a Copyright Basics guide are posted online by the U.S. Copyright Office. The Stanford University Libraries Copyright and Fair Use Center has a helpful summary of the case law.

Handbell musicians often cite “fair use” (the limitation in section 107) as blanket permission for all manner of wishful thinking. You can read more about fair use on this site, in the case law, and on sites hosted by academic institutions. Fair use is narrowly defined. Bottom line: it doesn’t grant permission for the public performance of an arrangement or transcription.

Practical considerations:

Many publishers will grant permission for transcriptions at no charge, provided you buy legal copies and pay the performance royalties owed. Publishers also often stipulate no recording or distribution of the adapted work. Sometimes there’s a formal letter of agreement, but usually just an email. I have had one or two publishers tell me I don’t need permission to adapt their piece for solo bells. When they do, I equate that response to the permission I was seeking, and proceed as though I’d obtained the usual publisher terms (OK to perform, buy legal copies, pay royalties, don’t distribute the work, don’t record without further permission).

I’m currently negotiating transcription rights with a publisher who is charging an arrangement fee for what other publishers have considered a transcription. They also asked to review my arrangement before granting permission, and have reserved the right to review, in advance, any videos I may want to post to YouTube. I feel their terms are reasonable and I really want to play the piece, so I’ve agreed to their terms. They’re giving me what I want, so why quibble?

I find it’s very little trouble to email a copyright holder explaining what I want to do with a specific piece and asking permission. The response is usually quick and supportive. A side benefit to contacting publishers is that all kinds of people outside the handbell community are exposed to my work in solo handbells, and several composers have learned of at least one handbell musician’s interest in their material. This isn’t likely to lead to fame, fortune, and an explosion of new solo handbell compositions, but I consider it a plus. It’s partly a matter of deciding on your own personal code of ethics. In my work as a musician, I want to lead by example and do the right thing, not just whatever I can get away with.

Copyright © 2013 Nancy Kirkner,