So, I don't just play a lawyer on guitar forums - I am one. And I will tell you that the law, regs, and related federal guidance on when an arrangement is copyrightable (and by extension, how similar or different does an individual or band need to play a version of a traditional song that is itself in the public domain) are incomprehensibly vague to me. (Then again, perhaps I'm still not looking in the right place yet.)
If anyone else can translate the following with enough objectivity to enable actually determining at what point playing a song as close as possible to how another band arranged and played it crosses a line, I'm all ears.
SOURCE: Compendium of U.S. Copyright Practices : Chapter 800 Works of the Performing Arts - U.S. Copyright Office (
https://www.copyright.gov/comp3/chap800 ... g-arts.pdf) - excerpts:
802.6(C) Musical Arrangements
When sufficient new harmonies or instrumentation are added to a preexisting musical
work, the musical arrangement may be registered as a derivative work.
802.6(C)(1) Harmonization
Harmonization is the addition of chords or musical lines to a melody. To be
copyrightable, the addition of chords to a melody must constitute sufficient new and
original authorship, not simply standard chords in common sequences such as C, F, G, C.
The harmonization of a melody using multiple musical lines involves additional
compositional creative factors, such as voicing and counterpoint.
Example:
• An applicant submits an application to register words and a musical
arrangement of a preexisting melody. The work is comprised solely
of the chord symbols C (major), Am (minor), Dm (minor), and G
(major) along with original words. The arrangement is not
registrable because this chord sequence is both standard and too
short to be sufficiently creative. The accompanying words, however,
may be registered if they are sufficiently creative.
802.6(C)(2) Instrumentation
Musical instrumentation or orchestration is the distribution or redistribution of
harmonic elements among different instruments. Instrumentation authorship may be
registered as a derivative work if the author added sufficient original authorship to the
preexisting work. Simply assigning entire lines from a preexisting work to new
instruments would not be considered sufficient new authorship, such as a four-part
choral work assigned without change to four brass instruments.
Examples of sufficient original authorship:
• An orchestration of a work originally composed for piano, such as
Debussy’s “Reverie.”
• A marching band arrangement of Beethoven’s String Quartet in G
Major, Opus 18, No. 2.
• A hip hop arrangement of a famous pop ballad.
802.6(D) Adaptations
A musical adaptation may be registered as a derivative work if the author contributed a
sufficient amount of original authorship to the preexisting musical work. An adaptation
may involve a reworking of the melody, rhythm, harmony, and/or lyrics in a preexisting
musical work that changes the style or genre of that work. It also may include a lyrical
adaptation of the text of a preexisting work, such as an adapted poem or adapted
Biblical text.
Examples:
• A hip hop musical based on a Bizet opera.
• A song based on a Shakespearean sonnet.
802.6(E) Variations
Variations usually consist of a theme followed by a number of changed or transformed
versions of that theme. A registration for this type of work covers the new music that
the author added to the work.
GLOSSARY
Derivative work: “A ‘derivative work’ is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, 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.’”
17 U.S.C. § 101.