At what point is arranging becoming original music?

[FMiguelez]

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Hello.

This had never become an issue because it never happened to me. But today, a fairly famous songwriter approached me with the following:

- She wants me to write and produce incidental music (background instrumental) for a soap opera based on some of her songs. This means she would give me a recording of some of her tunes, and I would have to "arrange" them in a way that I would adapt them to sound sad, like love, like action, like suspense, intrigue, etc.

The thing is that she insists that for this I would not get any authorship credits, and that she would be the sole owner of the copyright for these new pieces.
I've never done such a thing. I always write my own music, but now I'm not sure if she's right or she's wrong.

So far, my position is that in order to be able to write incidental music, I need to transform her melodies to achieve the desired emotions. Her tunes sound like boleros, but if I want to make them sound like action music, suspense, love, etc., I'd need to do extensive ORIGINAL writing (counterpoint, development, motif development, etc.). Not only the orchestration, but actually add from my creativity.

Is this considered "arranging", or original writing??

I really feel I should be entitled to share the copyright ownership for these new incidental themes... right? Something smells bad... unless I'm totally wrong, of course.

I know the law may be different in the USA, but I still would LOVE to know what your position is regarding this. IS there like a thin line that is blurred, or how would you deal with this?

Thank you so much for your input.

[Kubi]

If you do a punk version of Happy Birthday, with all the words screamed on the same pitch and the chords reduced down to one big barrage of noise, it's still 100% Happy Birthday.

US Copyright law provides for derivative works, that would be new creations. But creation of a derivative work usually requires the explicit consent of the copyright holder (which also would include some sort of arrangement as to how the resulting income would be split.) So for instance, you can sit down and say, I want to write an opera based on a few pieces of poetry by poet XY, so you call up and ask, hey, can I do that? And they say, sure, provided we get paid XYZ% of all income etc etc and we get to sign off on the final version before you can publish, or some such thing. And you come to an agreement and you create a derivative work. There's a scant few types of derivative works you can create without prior agreement, i.e. parody. But you may end up in a court trying to convince a judge it is indeed a parody before you know it really is one....

But in your case you clearly wouldn't get consent for a derivative work - she expressly said that whatever you create based on her songs is still going to be hers, she wants arrangements.

Now you do get some performance royalties for arrangements in some countries (in Germany i.e. it is 1/12 of the stream, or at least it used to be. In the US I believe it is contingent upon a deal between the parties concerned whether you get anything at all, not sure about this, however.)

In other words, whether it's a new work or an arrangement has a lot more to do with a prior mutual agreement. And of course the law protects the owner of the original copyright (as it should). She doesn't want you to create derivative works, she wants you to create arrangements. So they will indeed be arrangements, no matter how far you stray unless you don't use her material at all.

So I'd say you're facing the good old choice we all face almost every day: It is what it is, you can simply take it as is, or leave it.

Usual disclaimer: I'm a composer, not a lawyer, and Mexican law may indeed be different, though I find that all in all copyright laws don't seem to be that different throughout most of the world.

[FMiguelez]

So they will indeed be arrangements, no matter how far you stray unless you don't use her material at all.

The above quotation summarizes my issue very nicely. I was mislead on this topic by reading "some" sites that are not always (usually) accurate. So no matter how far I stray, it's still is what it is.
I also discussed this privately with another very well regarded MOTUNation member, and now you, so I am much more clear on this issue now.

So I'd say you're facing the good old choice we all face almost every day: It is what it is, you can simply take it as is, or leave it.

Yup. And now I can make a more informed choice, without feeling cheated. Man, I really had a misconception about this!

If I do decide to go ahead with this, I'll just make sure we arrive at a mutually beneficial agreement.
To tell you the truth, I would be able to write something original MUCH much faster than doing these arrangements. And frankly, it appears my judgement was a bit skewed by the fact that I WANTED to write original music for this project

Thank you for your input, Kubi.

[MIDI Life Crisis]

In the US I believe it is contingent upon a deal between the parties concerned whether you get anything at all, not sure about this,

It's important that you are a member of the musician's union working under an AF of M agreement if you want to collect on broadcast for an arrangement. That is your right. Otherwise, I don't think there is a way to collect. I don't think BMI or ASCAP collects for arrangers, but you might be considered the publisher of the arrangement - as Kubi states, you have to have that in writing and she wouldn't do that.

As per my PM (all other aspects confidential) charge a lot. You have to be good to do that. I've heard your stuff and you are that good. Don't sell out cheap - you're better than that.

[FMiguelez]

As per my PM (all other aspects confidential) charge a lot. You have to be good to do that. I've heard your stuff and you are that good. Don't sell out cheap - you're better than that.

Thank you for your words, Michael.
We started negotiating already. I can tell there will be a lot of push and pull, but I will keep my position steady. I mean, I will negotiate, but only to an extent, and definitely considering your PM advise.
Also, since there's a lot of music to be written... errrr.... arranged, in a very short amount of time, I must make sure I am still available for my other regular advertising clients that, frankly, will always pay me more than she could, and they EXPECT me to be available.

Let's see what happens

[MIDI Life Crisis]

... there's a lot of music to be written... errrr.... arranged, in a very short amount of time...

Here's the GOLDEN RULE for such situations:

PICK ONLY TWO:

• FAST
• GOOD
• CHEAP

You can't have all three - ever.

[Kubi]

... there's a lot of music to be written... errrr.... arranged, in a very short amount of time...

Here's the GOLDEN RULE for such situations:

PICK ONLY TWO:

• FAST
• GOOD
• CHEAP

You can't have all three - ever.

And you can't afford to skimp on the "good", ever. It'd end your career pretty quickly.

[FMiguelez]

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Yes. That rule of picking 2 out of the 3 options is so true! Clients always want the 3 of them, but it is just not fair.
Actually, Mike, you had shared that with me before, and I admit it has been a sort of "mantra" that has worked wonders for me since I adopted it (rápido, bueno, barato. Solo dos de las tres)

And I totally agree, Kubi. The good can NEVER be anything less. Excellent always welcome and no problem, but never ever less than good. That's what I always strive to do. Otherwise, as you mentioned, it can assure a quick forced retirement... not to mention ruining your reputation for ever.

Once someone reaches a good reputation status, it must be preserved, treasured and honored at all times. There's no way around this.

This monday I'll have a coffee with her, and we'll see if we can arrange a mutually good deal. I already know exactly how much I want to earn (within a pre-established range, so I have space to negotiate), and how much time I need. If she doesn't meet at least my minimum-desired fee, or a human amount of time to do this, then I'm totally prepared to gracefully not accept the project. But I'm also ready to do as good a job as I can if she accepts... we'll see. Either way, I'll post back here what happens.

And I really appreciate your good will and advise, guys. I can almost feel as if we were sitting at a table talking about this while drinking a beer

[MIDI Life Crisis]

I can almost feel as if we were sitting at a table talking about this while drinking a beer

FWIW, real men never drink their beer - they chug a lug!

[FMiguelez]

.

Just to give this topic closure, the deal didn't go on. She could not pay me what I asked.

She wanted cheap, stupid fast, and complex and good stuff... no go.

But I still feel GREAT about this. I don't feel cheated. And the best thing is that I'm VERY busy with other projects with my regular clients. If I would've accepted her terms I'd be in deep trouble: I would be working for peanuts, while having to turn down much better gigs. I could not do that to my usual clients!

And I gracefully declined, so, we are still in amicable terms. Maybe next time, when there's more budget for music

Thank you MLC and Kubi for your advise and comments in this thread!

[mikehalloran]

>The thing is that she insists that for this I would not get any authorship credits, and that she would be the sole owner of the copyright for these new pieces. <

Pass. She is trying to get something for nothing and wants you to be her slave.

You are entitled to broadcast royalties only if you are listed on the cue sheets as a co-writer (this is done all the time). You will not be publishing these arrangements - she or her publisher will - get over that. The only reason to do it cheap or free is to be listed on the cue sheets so that you get royalties from your PRO (ASCAP, BMI or SESAC). She doesn't pay those royalties - TV does - she wants your share. Ask your PRO how cue sheets work (what - you aren't a member? Join!!!)

Look up Star Wars at http://www.ascap.com/ace . You will see that John Williams is not a member (he belongs to BMI) but many ASCAP members worked on the music - there are pages of cue sheet listings and those guys receive royalties for their work.

If she thinks that a recording of the music for your resume is sufficient, there is a two word phrase to tell her: It's not "Happy Birthday"

If it really is an arrangement job - and not co-writing - you get paid by the hour of your time or by the minute of your work. And you get paid very well. Period. This is to make up for the fact that you won't be on the cue sheets since you aren't a co-writer.

There is a grey area between co-writer and arranger. You are not expected to do either for free - or even cheap. If she won't pay you by the minute for your finished arrangements, then you need to be listed on the cue sheets - your presence elevates you to co-writer status as far as your PRO is concerned. Either way, someone pays you.

That two word phrase: It's not "Merry Christmas" either.

As far as being the musician, if you are covered under an AFM contract, and only if, you are paid for your time and an initial run (normally 6 months). You are paid a second time if the work runs again for another time period. So a commercial you played on in January runs Feb-March and May-June. You get paid for your initial session only. If it runs Feb-March and June-Aug, you get paid again. Let's say it gets played Oct-Dec. Still only two 6-month periods. But if it gets played the following Feb, you get paid again. (As will any AFTRA actor or AGMA singer)... You will receive additional monies if the commercial goes into foreign markets or other channels besides USA radio/tv.

[MIDI Life Crisis]

Go Mike! Couldn't agree more - unfortunately he is in Mexico and the same rules don't always apply. In fact, they don't always apply here if you are in need of work and can't afford to loose the gig (and the producer is a butt head). I strike deals with clients when I know there will be substantial broadcast income (I'm BMI). For the kind of situation FMMig is in, I agree with you. Pass!

He posted his last message in this thread on April Fool's Day, BTW, and I think he did, in fact pass and she came back recently to meet his fee! Go FMMig!!!

[FMiguelez]

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Hi, MikeHalloran.

Thanks for chiming in. I DO belong to a PRO. I belong to SGAE, which is the one from Spain. I chose to stay clear from the Mexican one (SACM) because it's too corrupt (what else is new?).
I've found them (SGAE) VERY reliable, they always give me my checks (twice a year), and I can't complain about them. Actually, I'm very happy.

To tell you the truth, once I thought about dropping SGAE and going to ASCAP or BMI... they seem to be a bit more effective or more organized, but that may be just my own bias.

I guess this thing is different in Mexico than in the USA, so I'll explain a bit how it works here:
For TV work, such as background incidental music for TV series, you always get the music in cue sheets, and you always get payed synchronization royalties and performance royalties.
But for things such as TV ad music, you NEVER get paid any kind of royalty BEYOND what you negotiate at the beginning. IOW, you quote your production fees AND your royalty fee before hand, for a specific amount of time, for specific media, and for specific territories. If then they need more time, different media or more territories, they'll call you and ask for a quote for that.
Is this different in the USA?

Regarding that up-thread project, she couldn't meet my fee, so she got someone else to do it. But recently, as Mike wrote, she approached me again for another project where she CAN and WILL meet my fee (she knew it already )

Thank you for the advise, though, since this was something I had never had to deal with (orchestrating/arranging and enriching someone else's music). Now I'm very clear about getting VERY well paid for my time and work if I won't be listed in the cue sheets (which she made very clear I wouldn't).

I just have one more QUESTION: when the PRO pays, WHOM do they charge the music royalty fees?
In the case with our main TV station, Televisa, it's always Televisa the ones that pay. But in this case, whom would SGAE charge? They wouldn't bill her, would they?
Same with TV ad music... if I did fill up a cue sheet, whom would they charge? The client/brand? The TV station? IOW, who would be paying? (this is just a theoretical scenario, since in practice, it never happens like that, as I described above)... I'm just curious.

Thanks!

[MIDI Life Crisis]

...when the PRO pays, WHOM do they charge the music royalty fees?

Depends, but generally they come from bulk licensing where the stations (or orchestras in the case of classical concerts) pays a a set fee each year. How much "you get" depends on how many claims against the bulk fee are made. If the fee is $1,000,000 and 1,000,000 claims are made each composer/writer will get about 80-90 cents depending on how much admin fee is deducted. There is a larger fee from international but generally the bulk licensing is higher as well.

As far as who is best (ASCAP or BMI) their structure is different but is pretty close in the end. BMI is owned and operated by the broadcast industry for the most part. ASCAP by writers. That's a broad statement, but fairly accurate. The broadcasters don't "own" BMI per se, but it was formed by the industry and often the folks running it are former broadcast execs.

[carrythebanner]

If you do a punk version of Happy Birthday

Like this?
http://www.youtube.com/watch?v=YsB4MYuzu5k

with all the words screamed on the same pitch and the chords reduced down to one big barrage of noise

I think that's an unfair representation of punk rock — usually the chords are reduced down to at least two or three different barrages of noise.