Tag Archives: Music services

Arrangement of works in the public domain

Before you start arranging musical works that are not protected by copyright, it is worth being aware of the legal pitfalls in order to avoid costly stumbles. Text by Ernst Meier and Claudia Kempf

Arrangement of works in the public domain

An arrangement is when a new work is created using an existing work. (Photo: Tabea Hüberli)

Seeking inspiration from others, arranging existing works for different instrumentation, incorporating all or part of existing compositions into new works … these are age-old practices.

What pitfalls have to be avoided when you undertake a musical arrangement? – In a new series of articles to be published on the SUISAblog and in SUISAinfo, we shall try to shed some light on this topic. Initially, we shall examine the arrangement of works in the public domain, i.e. works that are no longer protected by copyright since their authors have been dead for more than 70 years.

What is an arrangement?

According to the Copyright Act, an arrangement is a “derived” (in German, literally, a “second-hand”) work. For an arrangement to qualify for copyright protection, it must satisfy the same requirements as a “work”, in other words: arrangements which are deemed artistic creations of the mind of the arranger are protected by copyright in the same way as an autonomous work. In the case of an arrangement, the artistic creation consists in the recognisable transformation, changing, or extension, of the musical substance of an existing work.

An arrangement is when a new work is created using an existing work in such a way that the latter remains recognisable with its individual character. The newly created element must, however, also have an individual character. Typical examples of arrangements are works orchestrated for different instruments, or lyrics translated into another language.

SUISA’s Distribution Rules (in German) have a section (1.1.3.5) that lists a whole series of works that do not qualify as arrangements for copyright protection purposes. In practice, this list has proven itself repeatedly. The following modifications do not qualify as arrangements:

  • adding dynamic or agogic accents;
  • adding musical phrasing symbols;
  • entering finger positions (fingering);
  • registrations for organs or other keyboard instruments;
  • flourishes;
  • translating an old musical notation style into a style in use today;
  • correcting clerical mistakes in the original and similar changes;
  • transferring music into other keys or pitches (transpositions);
  • editing out individual voices;
  • exchanging or doubling voices;
  • adding purely parallel voices;
  • allocating existing voices to other instruments (simple transcription).

Arranging works in the public domain and registering them with SUISA

Musical works which are not protected by copyright can be freely arranged and altered – no consent is necessary. To register an arrangement of a work in the public domain, you must send SUISA a copy of the new work together with the existing work, so that the music department can establish copyrightability. This applies to works whose authors are unknown or have been dead for at least 70 years. This also applies to works that have been handed down by folklore and are considered traditional.

When it receives an arrangement, SUISA’s music department verifies whether it satisfies the criteria for protection by copyright. This is always done by comparing the original to the arranged version. The musical quality of the submitted piece or movement is unimportant at this stage.

What types of arrangements are there, and what is the arranger’s share of the remuneration?

In its appreciation, SUISA distinguishes between the five following types of arrangement:

(Graphics: Crafft Communication)

1. Normal arrangement

The “normal” case (representing about 90% of all applications) is an arrangement in the strict sense of the word. A popular melody is arranged by adding voices or instruments for a specific ensemble or group (e.g. mixed choir, string quartet, orchestra, Big Band, etc.). The melody or main voice is taken over exactly, only the arrangement is new.

In this case, the arranger’s share is 15% (for works with lyrics) or 20% (works without lyrics).

Normal arrangement

2. Co-composition

Here the unprotected melody is not the upper voice; it is hidden in the musical structure. In this particular case (e.g. choir and organ music), the arranger’s work is of higher value since he has to compose his own upper or main voice and the existing music has to be embedded into the piece with a contrapuntal technique.

The arranger’s share in this type of work is 50% of the composer’s share.

Co-composition

3. Reconstruction

An original work is interrupted in one or several places, or left unfinished by the composer (or lost in handing down), and is then finished by the arranger.

The arranger’s share in this case is 50% of the composer’s share.

Co-composition

4. Complex jazz versions with changing soloists

The piece starts with a short presentation of the unprotected original melody. Then, a succession of soloists or “registers” (saxophone, trumpets, piano, drums) take up the melody with improvised figurations; these make up the greater portion of the work. Visually this is illustrated by the fact that the individual soloists or “registers” stand up for their solos. At the end, the original melody is often repeated all together.

In this type of work, the arranger’s share is 50% or 100% of the composer’s share, depending on the length and importance of the solos.

Complex jazz versions with changing soloists

5. Sets of variations

Variations on historic musical themes (e.g. Diabelli, Paganini or Gershwin variations) are typical examples of compositions where the original takes backstage to the variation. The starting theme is merely a pretext for a completely new work. It follows, therefore, that the creator of the variation is entitled to the full remuneration. For example: “Diabelli variations by Beethoven” etc.

The arranger’s share in this type of work is 100% of the composer’s share.

Sets of variations

What does public domain (“domaine public”) mean?
For further information on the protection period for works we refer you to the article “Erstmals seit 20 Jahren werden wieder Werke gemeinfrei” (article available in German, French and Italian, PDF) in the SUISAinfo edition.
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Before you start arranging musical works that are not protected by copyright, it is worth being aware of the legal pitfalls in order to avoid costly stumbles. Text by Ernst Meier and Claudia Kempf

Arrangement of works in the public domain

An arrangement is when a new work is created using an existing work. (Photo: Tabea Hüberli)

Seeking inspiration from others, arranging existing works for different instrumentation, incorporating all or part of existing compositions into new works … these are age-old practices.

What pitfalls have to be avoided when you undertake a musical arrangement? – In a new series of articles to be published on the SUISAblog and in SUISAinfo, we shall try to shed some light on this topic. Initially, we shall examine the arrangement of works in the public domain, i.e. works that are no longer protected by copyright...read more

Personnel changes in SUISA’s Music Department

At the end of September 2018, Ernst Meier, Head of the Music Department, retired after 33 years’ work for authors and publishers. His successor is Andres Pfister. Text by Irène Philipp Ziebold

Personnel changes in SUISA’s Music Department

Ernst Meier, in his office in the SUISA branch at the Bellariastrasse in Zurich in September 2018. The long-term head of the Music Department is now enjoying his retirement. (Photo: Sibylle Roth)

Ernst Meier applied back in 1985 as a musicologist for an assistant’s position in the then Swiss music archives of SUISA, today’s “Music Department”. His passion for music was ignited early on: At the young age of 14, he began to play the organ. By studying musicology at the University of Zurich, he turned his passion consequently into his profession.

As head of the Music Department, Ernst Meier answered many specialist questions which required specific musicological knowledge. He thus examined cases where the suspicion of plagiarism arose, or checked registrations of arrangements of works that were no longer protected to establish whether the work qualified as a derived copyrighted work.

Mid 2011, the “Programmdienst” (Programme Services) team was integrated into the Music Department. Ernst Meier and his six staff members made sure that protected works were correctly identified on performance programme lists. In their work, they were supported by Ernst Meier especially regarding concert programmes of contemporary and classical music. These details form the basis for exact invoicing to the event organisers and the correct distribution of copyright remuneration based on programmes.

SUISA has had a seat on the Board of the RISM Schweiz («Répertoire International des Sources Musicales») since RISM was founded as an association. Ernst Meier represented SUISA there in his role as a musicologist and therefore was able to maintain valuable contacts regarding his field of study. He also got involved in the Schweizerische Vereinigung der Musiksammlungen (IAML, Swiss Association of Music Collections).

After 33 years in the service of authors and publishers, Ernst Meier retired at the end of September 2018. With his love for music and his enormous knowledge and instinct, especially regarding all musical matters, he has left a mark on the Music Department at SUISA over a long period. Management thanks Ernst Meier for his valuable work for SUISA and wishes him all the best for his future.

SUISA Music Department from autumn 2018
Andres Pfister, 31 years old, has been working as Ernst Meier’s successor and musicologist for SUISA since 01 September 2018. He lives in Berne and has been studying musicology and social anthropology at the University of Berne. He successfully concluded his studies with a Masters Diploma in the summer of 2018. Andres Pfister already pursued many different work-related activities during his time as a student. He was active as a tutorial assistant at the Institute for Musicology at the University of Berne or worked at the Institute for Culture in the educational directorate of the Canton of Berne. He also moderated the classical music programme “Ostinato” as a radio DJ on RaBe (Radio Berne) and was responsible for the editorial management of the broadcast. He continues to sporadically work for the radio.
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Leave a Reply

All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

Your email address will not be published.

At the end of September 2018, Ernst Meier, Head of the Music Department, retired after 33 years’ work for authors and publishers. His successor is Andres Pfister. Text by Irène Philipp Ziebold

Personnel changes in SUISA’s Music Department

Ernst Meier, in his office in the SUISA branch at the Bellariastrasse in Zurich in September 2018. The long-term head of the Music Department is now enjoying his retirement. (Photo: Sibylle Roth)

Ernst Meier applied back in 1985 as a musicologist for an assistant’s position in the then Swiss music archives of SUISA, today’s “Music Department”. His passion for music was ignited early on: At the young age of 14, he began to play the organ. By studying musicology at the University of Zurich, he turned his passion consequently into his profession.

As head of the Music Department, Ernst Meier answered many...read more

Plagiarism accusations – what does SUISA do?

Various media have been reporting on plagiarism accusations against a Swiss artist in the last few days. The topic is not new, but it seems to continue to be shrouded in ambiguity: Who is the accuser? What happens to an artist who lifts from another? How much does he have to pay? And what role does SUISA actually play?

(Foto: Giorgio Tebaldi/Manu Leuenberger)

First and foremost, the affected authors have to agree whether an artist has copied a song from another artist. In the best case scenario, the artists come to an internal arrangement and the case is closed. If the parties cannot find common ground, the author of the alleged original can sue the other artist.

Criminal or civil proceedings

Copyright infringements are only prosecuted upon a complaint being launched by the plaintiff. That means that somebody has to notify the Public Prosecution Service (PPS) of the plagiarism case. The PPS shall then initiate investigations. If the accusation deems to be justified, the PPS either issues an order of summary punishment or brings a charge against the respective party before the court. The plagiarising author is punished for the act of having claimed authorship. This does, however, only serve the original author to a certain degree. First, it has only been established who isn’t the author. The original author can, however, not deduce that he is the composer himself. Second, income has been raised with the plagiarism and it has been paid to the wrong author.

For both of these issues, the original author must launch civil proceedings. He must request the court to establish that he is the actual author and that his lost profit, plus damages, must be paid to him.

A judge does not have to be a musician or a composer. As a consequence, musicologists are instructed with an expert opinion in most cases. They analyse whether the work in dispute is really a plagiarism or an arrangement. The court then bases its decision on such an expert opinion.

Works are therefore not protected by SUISA

It is important to note that SUISA does not protect works per se. That is not necessary, either. According to the copyright law, a work is automatically protected from the moment of its creation. As a consequence, it is not necessary to register it for its protection. It may, however, be difficult in a dispute for authorship to prove when and by whom the work was created. In order to facilitate the evidence, there are two possible measures:

  • If you are a SUISA member you can register your works with SUISA. The date of the registration acts as evidence that the work existed at that time.
  • It does, however, also suffice you post a recording of the work or the music score to yourself by means of a registered letter. Of course the package or envelope must not be opened under any circumstances in such cases.

Payment stop in unclear cases

If there is a dispute, the author who claims to have written the original work can effect that SUISA stops the payment for the work. SUISA sets a deadline for the involved parties in the case of a dispute so that they can come to an arrangement or assert their rights before a court. The period generally covers six months but can be extended by a further six months. If no action is brought in and no settlement is made, SUISA distributes the remuneration based on the distribution status before the payment stop. In special circumstances, SUISA can also deposit the disputed shares with the court.

Expert opinion of the SUISA musicology department

SUISA also has a musicology department. It examines cases of suspected copyright infringements, among others. Against this background, the department can issue an expert opinion for the attention of the parties in dispute – if desired. The expert opinion does, however, not have a legal character but is merely intended as an assessment.

SUISA is therefore only involved in cases of plagiarism affecting the distribution of remuneration that has already been collected for works, or if the parties in dispute have asked for an assessment. SUISA does, however, not get involved in legal proceedings. These have to be settled between the authors themselves.

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Leave a Reply

All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

Your email address will not be published.

Various media have been reporting on plagiarism accusations against a Swiss artist in the last few days. The topic is not new, but it seems to continue to be shrouded in ambiguity: Who is the accuser? What happens to an artist who lifts from another? How much does he have to pay? And what role does SUISA actually play?

(Foto: Giorgio Tebaldi/Manu Leuenberger)

First and foremost, the affected authors have to agree whether an artist has copied a song from another artist. In the best case scenario, the artists come to an internal arrangement and the case is closed. If the parties cannot find common ground, the author of the alleged original can sue the other artist.

Criminal or civil proceedings

Copyright infringements are only prosecuted upon a complaint being launched by the plaintiff. That...read more