This time of year, high school band directors are mulling over potential choices for the coming marching season. The direction of most marching bands over the past half century has changed drastically from the Parade Bands and Friday-Night-Show Bands of yester-year to the competitive and DCI-influenced Corps Bands of today. Many band directors opt from purchasing stock arrangements to purchasing highly-styled and custom-arranged shows for their bands. However, an issue which is plaguing the competitive high school marching scene is copyright infringement when arranging popular music for the marching band.
Many band directors either willingly or unknowingly infringe on the intellectual property of composers by not following proper procedures when arranging music. When doing so, the publishing companies do not get paid for the rights to arrange & perform the music and the composers are not receiving their performance royalties.
So, what it is the proper procedure arranging published music? Well... there are two sides to that question. The first side is the topic of public domain.
"What is public domain??" you might ask?
Well, public domain is an arranger and publishers best friend! Music which is considered to be in the public domain can be reproduced, copied, or arranged without worrying about having to pay royalties. Typically, music published prior to 1923 is considered to be in the public domain.* Meaning it is an open resource for arrangements and ideas for new composition. This means arranging a show based on the music of Classical or Romantic composers is fair game. Even some really great classical works from the early 20th Century are considered to be in the public domain (although be sure to double check! Never assume...).
The second side of the question deals with copyrighted music. The question we may ask is, "Is it possible to arrange music which is copyrighted?"
In general the answer is yes; but, you must obtain the permission of the copyright owner in order to do so. (.... and the copyright owner has the right to deny permission to arrange the work.) Many composers and companies are welcome to the idea of having their music on the Marching Band field. However, they expect the directors to follow the proper procedures for securing permission prior to arranging the work. The process for legally requesting permission is a bit complex for some publishers and rather easy with some. There are organizations, like Copycat Licensing, which will take care of the whole process for a fee. If you are looking to save money and have the extra time to research it, you can find the information on many composers or publishers websites. Or a simple call to the main office will often direct you to the proper channel. The final research often results in paying the copyright owner a fee for the arrangement. Most often there is a limitation to the use of the arrangement by a time frame set forth in the agreement (meaning you can't keep using the arrangement year after year unless it is agreed upon by the copyright owner).
The next question many people ask is, "Who owns the copyright of the arrangement and can I sell it after I've arranged it?"
The new arrangement is considered a derivative work of the original composition. Meaning that the original copyright owner still retains copyright of the new arrangement (in short, even though you arranged it, you don't own it). As far selling it... No. That is an entirely different agreement with the copyright owner .... and a topic of discussion for another blog... :)
In short, never assume it is okay to arrange something. If it is a work written before 1923, be sure to double check to see if it is in fact in the public domain. If it is a copyrighted work, ask permission before you arrange it! The result of not following procedure can result in a major lawsuit against you personally and the ensemble or school you work for. There are cases which have resulted in fines of 10's of thousands of dollars and instances where directors have been held personally liable and lost their jobs from copyright infringement. Not fun!!
This doesn't even take into consideration that it is totally insulting and disrespectful to the composer! Full-time composers make a living from the sales and performances of their music. New music is the result of ensembles purchasing and performing published works and properly following copyright laws. If we want to see the continued development of great works for the wind band idiom, be kind to the composers and ask permission before you write a new arrangement for the marching season.
*There are still questions about recent US treaties and the impact on some of the music which was previously considered in the public domain. Be sure to research thoroughly. Stanford University offers a great resource on the topic of Public Domain! Here's a link: http://fairuse.stanford.edu/charts-and-tools/