Copyright Protection for Arrangers

Legal Corner

Volume CV, No. 11November, 2005

Harvey Mars

Probably one of the most difficult litigations I have ever handled was a suit which I just settled for what I consider to be a substantial sum of money. (Don’t ask because I can’t tell!) Now that the litigation is over I am free to use it as the topic for this month’s article.

The suit involved an arranger/orchestrator who had prepared the musical score for a very popular Off Broadway parody.

The arranger had invested a considerable amount of time and effort to weave 20 or more popular songs into an internally cohesive musical. For her efforts she was named as the musical director for the New York production and was given the right of first refusal for involvement in production of the show outside of New York.

Since the show has since become a franchise, on first blush it appeared to be a lucrative deal.

Unfortunately for my client, and for the producers of the New York show, the author of the show (who owned the rights to it) decided to break up with her partners and exploit the show on her own. And she used my client’s orchestrations in the process.

Obviously, the suit revolved around whether my client’s arrangements were protected by the U.S. Copyright Act.

As I had noted in a previous Allegro article, the Copyright Act most often protects the owner of original creative works from unauthorized use of those works.

This situation presented a different scenario.

Here the work at issue was not original but was an arrangement of previously existing songs.

Furthermore, to maintain copyright protection as a parody, the author insisted that the arrangement sound as true to the original as possible.

The court was presented with a complicated issue of dissecting my client’s contributions to the score from the original songwriter’s contributions.

If that wasn’t difficult enough, the show’s author had a new score created and claimed that it was entirely different. This added a further complexity to the situation that I feared a jury would never be able to sort through.

Ultimately, a suit like this one was dependent upon expert testimony.

Both parties hired a professional musicologist to sort through the score to ascertain whether my client substantially contributed any original creative work to it.

Clearly, in my mind the new score could not have been created without my client’s contributions. However, that wasn’t a sufficient basis for a copyright claim. The author, a rather wily individual, had done a good job hiding my client’s original contributions.

Before my client was forced to take out second and third mortgages on her home, I recommended a settlement conference with a U.S. magistrate judge.

Ultimately, our efforts succeeded and my client has now moved on to preparing a score for what we both hope will be a major motion picture. This time I’ll make sure that in her contract it specifies that she’ll receive a percentage of the gross receipts of the show.

I guess the obvious point of this litigation is that it is much more difficult for an arranger of popular music to claim and prove copyright protection than it is for the creator of the original music.

However, it is a task which is not entirely impossible and with the right expert testimony may be successful.

(A quick postscript: I wish to thank Samuel Knee’s assistance with the preparation of last month’s article.)

Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to Allegro editor Mikael Elsila at Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.