Letter from Tresona

[perc2100]

Here's a relevant (and interesting) article from the ABA (American Bar Association) newsletter that talks quite a bit about copyright and how it pertains to live performances. It discusses in a jazz setting, and goes over performing: completely improvised music, original work, arrangement of a public domain piece, and arrangement of non-public domain.

IMO this is a fairly unbiased article, and I would say the ABA is pretty authoritative when it comes to legal interpretation of US law.

https://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-archives/october13/copyright-jazzs-friend-or-foe.html

[C.Holland]

Club style and combo style jazz is a different entity. You cannot copyright cord progressions. Hence many many many songs are based off of "i got rhythm". Many music clubs have a blanket agreement for the playing of covers. As long as you are not recording your performance for distribution, you're ok there.

[Pete Freedman]

seriously? you're stating to just go ahead and do?! you don't care that the composer gets their fees? you don't care that a school being caught doing this gets banned from their circuit? or worse case scenario, that their music programs get shut down due to a lawsuit?

At no point did I or do I advocate ignoring arranging fees. That would be crazy. Music teachers should pay them. Even if the reason turns out to be that, like Calvin Ellis, the mere perception by the school board of exposure to risk could result in your termination. No heroes.

Instead, I am asking for evidence that teachers are actually required by the law to pay them. That's very different.

Perc, you say you've spoken to entertainment lawyers. That's like Russians saying, "Oh, well. Apparently Napoleon is allowed to take Moscow. I spoke to some generals." Were they generals in your army or the enemy army? Key thing.

Lawyers are fiduciary to their clients. They are required to interpret things in their client's best light. Even obvious implications of the law can be twisted absurdly to support the client's case. I'm asking if this is one of those cases. If a copyright holder can stop a concert by objecting to it in writing. Doesn't that seem to imply they didn't have to give their permission in the first place.

Also, Perc, I don't think you're implying that teachers should pay fees the law does not require, for moral reasons alone, are you? Just making sure.

A single case where a non-profit music teacher was found guilty of violating Title 17 for failing to obtain arrangement rights would go a long way toward proving me wrong. That's all I'm asking for. And everything schools do is public knowledge, including the budget.

And it's not like Tresona isn't litigious. They sue when they're in the right, such as in this case where an arranger had allegedly agreed by contract not to resell the arrangement, and did so anyway. Tresona go to court, they prevail (I believe). They're great at that. They are lawyers.

So there should be some cases. At least a test case.

[Pete Freedman]

Yea, he's completely lost his mind.

Assumes facts not in evidence: That I was ever within my right mind in the first place.

[Eleran]

I would say the ABA is pretty authoritative when it comes to legal interpretation of US law.

One clarification - this is an article authored by an individual attorney, printed in a trade magazine that solicits articles to fill it's monthly pages. It represents neither an official statement of the ABA itself (as might be found in amicus curiae brief submitted in a case the ABA takes interest in) nor would it likely merit citation by any court's opinion. Law Review articles and notes (including the one cited in the article) are much more authoritative.

That said, it's not a bad general discussion of the field, though in my opinion it tends to inflate the concept of jazz improvisation with respect to the underlying original melody, which remains the essential kernel of musical idea amid the improvised flourishes and tangents.

[Full disclosure: National Law Journal, former columnist (2004)]

Edited April 19, 2016 by Eleran

[Kamarag]

You cannot copyright cord progressions.

No, but it *can* be a factor in copyright claims.

The perfect example of this is how Radiohead lost a copyright suit to The Hollies over "Creep". Albert Hammond and Mike Hazlewood are now credited as co-writers of "Creep", a song that uses a chord progression used in "The Air That I Breathe" in its verse, along with a melody from "The Air That I Breathe" in the bridge following the second chorus. Radiohead's Thom Yorke also now splits all royalties from "Creep" with Hammond and Hazelwood (technically, "Creep" is now credited as "by Albert Hammond, Thom Yorke, Colin Greenwood, Edward O'Brien, Richard Greenwood and Mike Hazlewood").

Plot twist: Prior to the lawsuit, it was very expensive to get the rights to Creep for bands and corps. Now it's inexpensive and easy.

Edited April 19, 2016 by Kamarag

[perc2100]

One clarification - this is an article authored by an individual attorney, printed in a trade magazine that solicits articles to fill it's monthly pages. It represents neither an official statement of the ABA itself (as might be found in amicus curiae brief submitted in a case the ABA takes interest in) nor would it likely merit citation by any court's opinion. Law Review articles and notes (including the one cited in the article) are much more authoritative.

That said, it's not a bad general discussion of the field, though in my opinion it tends to inflate the concept of jazz improvisation with respect to the underlying original melody, which remains the essential kernel of musical idea amid the improvised flourishes and tangents.

[Full disclosure: National Law Journal, former columnist (2004)]

True; thanks for the clarification

[C.Holland]

No, but it *can* be a factor in copyright claims.

The perfect example of this is how Radiohead lost a copyright suit to The Hollies over "Creep". Albert Hammond and Mike Hazlewood are now credited as co-writers of "Creep", a song that uses a chord progression used in "The Air That I Breathe" in its verse, along with a melody from "The Air That I Breathe" in the bridge following the second chorus. Radiohead's Thom Yorke also now splits all royalties from "Creep" with Hammond and Hazelwood (technically, "Creep" is now credited as "by Albert Hammond, Thom Yorke, Colin Greenwood, Edward O'Brien, Richard Greenwood and Mike Hazlewood").

Plot twist: Prior to the lawsuit, it was very expensive to get the rights to Creep for bands and corps. Now it's inexpensive and easy.

had they just not used the melody, they'd have been ok.

[Kamarag]

had they just not used the melody, they'd have been ok.

Maybe, maybe not. This case is taught to music majors when covering rights and responsibilities. I've seen some interesting articles suggesting that the case was already lost, and that the ripped-off melody was just icing on the cake. Regardless, it's even crazier now than it was during the Creep trial. Just look at what happened to Mark Ronson et al with the "Uptown Funk" case.

[Eleran]

https://youtu.be/a-1_9-z9rbY