Re: Copright on a music transcription

The composer's musical composition was audio-taped. The theater company audio/video-taped a vocal performance of the composition. You prepared a notation of the composition from the audio/video-taped performance. Do I have this right so far?

If I do, then the composer is the author of the composition. You prepared a derivative (or a copy, see below), that was either authorized or unauthorized, depending on whether the theater company had authority to authorize you to score the composition.

Assuming the performance was authorized, the theater company's copyright in the taped performance would not cover the original composition -- only their original contribution to the video-taped performance. They would not have a right to authorize you to make a different derivative (or a copy) of the original composition.

But that's the default rule. The theater company could have told the composer that they needed a score, and he could have said, "that's not my thing -- find somebody else," making them his agent for purposes of authorizing your score.

That takes us to the big question that you can answer better than I can. Is your score a "derivative" of the composer's original work, or is it another "version" of the composer's original work?

"A work is "created" when it is fixed in a copy or phonorecord for the first time; ... and where the work has been prepared in different versions, each version constitutes a separate work."

"A work is "fixed" in a tangible medium of expression when its embodiment in a copy ... by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration....

"A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, ... sound recording, ... abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a 'derivative work.'"

So, you tell us -- when you score a composition from a recording, is the composer's word "recast, transformed, or adapted," or is the composer's work "embodi[ed] in a copy ... to be perceived..."? Do you make any original and creative contribution when you score a composition?

If your score is an authorized derivative, you can copy and distribute your score and deny the composer permission to do so; but you can't authorize anyone to perform or record the composition; or prevent the theater company from selling their copy to the composer; or prevent the composer from having someone else score the composition if you don't let him use yours. If it's an authorized "embodiment in a copy," then the copyright belongs to the composer.

In any case, I assume that the composer offered to *buy* your score because he felt obliged to compensate the theater company since they compensated you; and he wasn't interested in suing the company that was performing his work even if they weren't authorized to commission your score.

All of this analysis is under U.S. law. I haven't the faintest idea whether the result would be the same under Dutch law.

John Noble

At 12:55 PM -0400 5/1/06, Richard FitzHugh wrote:
>Hi,
>
>I'm new to this list so please forgive me if this question is not
>entirely appropriate.
>
>I was approached last year by a Dutch music-theatre company. They
>were performing a work by a young composer. The work had no written
>score since the premiere (and only one so far) production had been
>done by teaching the singers by rote (i.e. listen and imitate) and
>with a tape playing the "orchestra" parts. The music-theatre company
>asked me to prepare vocal scores for their use in their production
>of this piece. I was given a video of the premiere performance, and
>from that I wrote down the music into a music notation software
>(Sibelius). I was paid for the work and presented the company with
>print-outs of the score. The agent representing the composer now
>wishes to buy the electronic files of this score from the
>music-theatre group.
>
>In the absence of a written contract (I know, I know...) and any
>discussion of rights, do I, as the transcriber, have any rights to
>the transcription? Or is it understood that the permission to make
>the transcription was granted (albeit not directly) by the composer,
>in which case he retains the right to the transcription? If so, why
>would he need to *buy* the files back? Or did the rights to the
>transcription pass implicitly to the music-theatre company when I
>did the work for them? For that matter, *are* there any
>transcription rights? I know that editorial annotations are
>copyrighted, so...?
>
>Many thanks to anyone who can shed light on this matter,
>
>Richard
>
>
>
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Received on Tue May 02 2006 - 02:15:00 GMT