Re: altering music

Mark Charette <charette[_at_]sneezy.org> wrote:

>
> Forwarded from one of my correspondents:
>
> When I pay a royalty fee to perform a piece of music -- eg.:
> rent the music or pay an annual fee to ASCAP -- have I agreed to
> play it as written, barring performance errors or minor adjustments
> to fit the available instruments or performance site?
>
> Or am I entitled to play it any way that I wish, including
> altering the melody in a fundamental way that does not conceal the
> identity of the original music but clearly does not leave it as the
> composer intended either?
>
> Or does this vary with each individual royalty agreement? Is
> there a basic trade practice for this question?

I am not a lawyer, this is not legal advice, etc. etc., but my thoughts on the issue are as follows:

The statute distinguishes the performance right from the derivative work right. Hence I would, at first look, guess that the statute contemplates that some derivations will be OUTSIDE the scope of the performance right.

The law creating the compulsory license for sound recordings specifies that the basic melody and character of the song can't be changed by someone who relies on the compulsory license mechanism. My guess would be that a performance license would, in the absence of explicit stipulations, allow the performer about the same amount of leeway.

One case I know of deals approximately with this question is Wihtol v. Crow, 309 F.2d 777 (8th Circuit, 1962). In this case a choirmaster who re-harmonized a work for his choir was found guilty of infringement, along with the First Methodist Church of Clarinda, Iowa. (The plaintiff also sued the Clarinda, Iowa, school district, but the Court of Appeals dismissed this defendant on Eleventh Amendment grounds.) In this case, though, the finding of infringemenet was based on the choirmaster's having made copies of the work, not on his having re-arranged it.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Sun Aug 13 2000 - 00:47:21 GMT