In the world of creativity, there are many works and embodied ideas that originate from existing works as a result of their creative processing. This is an adequate and natural process and contributes to the emergence of derivative works. Pursuant to Article 17 of the Law of Ukraine “On Copyright and Related Rights”, a derivative work is a work resulting from the creative processing of another work without prejudice to its protection. This can be an annotation, adaptation, arrangement, cover version, and any other new ideas that arise from existing work. Derivative works do not include audiovisual works obtained by sounding (including dubbing), subtitling other audiovisual works in other languages.
The authors of derivative works shall own the copyright to their translation, adaptation, arrangement or other processing of the work. This means that the author of a derivative work has copyright in his or her unique processing and can control its use. At the same time, the rights of authors of derivative works do not restrict other authors from making their own creative arrangements of the same works, provided that the copyright of the works being translated or arranged is observed. However, it is important to maintain a balance between copyright in original works and the rights of authors of derivative works. The authors of derivative works may exercise their rights only if they respect the rights of the copyright holder of the work that has been processed.
Thus, an Arrangement is a derivative work and the author of the arrangement owns the copyright to such a derivative work, provided that he or she has processed the original work by way of arrangement, having obtained permission from the author of such original work.
What is the definition of the term “arrangement” provided by other sources of information?
A large explanatory dictionary of the modern language provides the following interpretations of the word “arrangement”:
1) arrangement of a musical work for performance by a different set of instruments;
2) arrangement of a melody for performance on a musical instrument or for voice with accompaniment;
3) a facilitated presentation of a musical work for performance on the same instrument, and others.
All of the above interpretations appropriately characterize the meaning of the word “arrangement”, except for facilitating the presentation of a musical work for performance on the same instrument, because this is not the main purpose of the arrangement as an object of copyright.
Some scholars provide the following definition of an arrangement:
“it is an arrangement of a musical work written for one instrument or composition of instruments (voices) for another instrument or composition – expanded or narrowed” (Manual for Judges on Intellectual Property. Benedysiuk I.M.). This definition is considered appropriate, but incomplete, because, as the interpretation of the word “arrangement” shows, it is not limited to the arrangement of a musical work for performance by another instrumentation. An integral part of the arrangement is considered to be the processing of the melody, because this phrase includes the entire range of possible actions related to the melody.
Characteristic features of an Arrangement
Since the Arrangement is recognized as an object of copyright, it has all the obligatory features of copyright objects, including musical works, namely
– creative character – as a feature of the Arrangement, manifested in its novelty and spiritual character, which indicates significant differences between the Arrangement and other objects of copyright (inventions, industrial designs, etc.)
– embodiment in an objective form and possibility of reproduction – expressed in the form of a musical score, public performance or sound recording. Whereas the possibility of reproduction, as a feature of Arrangement, creates the prerequisites for the perception of a musical work by others.
The feature of fixation of a musical notation reflects the objective form of expression, without which a work cannot exist, because, according to Article 2 of the World Intellectual Property Organization’s Copyright Treaty, adopted by the Diplomatic Conference on December 20, 1996, copyright protection extends to the form of expression, and not to ideas, processes, methods of activity or mathematical concepts as such.
It is worth noting that a characteristic feature of an Arrangement that distinguishes it from other copyrighted works (literary works, photographic works, maps, plans, etc.) is the need to express the essence with the help of various sounds: voices, musical instruments, etc. It is interesting to note that, for example, in France, birdsong and choir, as types of sounds, are subject to legal protection.
Since an arrangement is created by creative processing of an original musical work, which does not affect the latter in any way: the original work does not cease to exist, its use does not become restricted due to the appearance of a derivative work, it is reasonable to believe that another mandatory feature of an arrangement is the absence of copyright infringement of the work being processed, i.e. the original musical work. This feature is reasonable: in accordance with Article 12 of the Berne Convention and national legislation (clause 9, part 1, Article 12 of the Law of Ukraine “On Copyright and Related Rights”), granting permission or prohibiting processing, adaptation, arrangement and other similar changes to works is the exclusive right of the author or other person holding copyright. In other words, if the author’s exclusive right to authorize or prohibit the arrangement of his or her work is violated, a musical work derived from his or her work cannot receive copyright protection.
Copyright protection for Arrangements
Taking into account the specifics of the Arrangement, the same methods as for other copyright objects – general and special – shall be used to protect the copyright in such Arrangement.
The general methods of protection include the following (Article 16 of the Civil Code of Ukraine):
– recognition of the right
– invalidation of the transaction;
– termination of the infringing action;
– restoration of the situation that existed before the violation;
– enforcement of the obligation in kind;
– change of legal relationship;
– termination of legal relations;
– compensation for damages and other means of compensation for property damage;
– compensation for moral (non-pecuniary) damage;
– declaring unlawful a decision, action or inaction of a state authority, authority of the Autonomous Republic of Crimea or local self-government body, their officials and employees.
Special remedies are provided for in Article 432 of the CCU, which include:
– application of immediate measures to prevent infringement of intellectual property rights and preservation of relevant evidence;
– Suspension of the passage of goods across the customs border of Ukraine, the import or export of which is carried out in violation of intellectual property rights;
– withdrawal from civilian circulation of goods manufactured or put into civilian circulation in violation of intellectual property rights and destruction of such goods;
– withdrawal from civilian circulation of materials and tools used primarily for the manufacture of goods in violation of intellectual property rights or withdrawal and destruction of such materials and tools;
– imposition of a one-time monetary penalty instead of compensation for damages for the misuse of an intellectual property right;
– publication in the media of information about the infringement of intellectual property rights and the content of the court decision on such infringement.
In court practice, disputes over arrangements of works are quite common, one example is case No. 910/15172/19 of October 22, 2020, in which the claim was based on the belief of Comp Music Publishing LLC (hereinafter referred to as the plaintiff) that the defendant had unlawfully arranged the works that are the subject of the plaintiff’s copyright; the claim was dismissed, as the plaintiff’s belief was erroneous, given the existence of an author’s contract for the order and a license agreement between the parties, the content of which shows that the authors (defendants) are the owners of the copyright in the arrangements of the works.
What is an arrangement for a creative person?
Arranging requires creativity and the ability to mix different musical instruments, sounds and melodies to achieve the desired sound.
What exactly does Arrangement mean in music?
As mentioned above, Arrangement is a creative process of developing and transforming musical ideas into a full-fledged composition. It involves the selection and organization of various musical instruments, rhythms, sounds, and melodies in order to create the desired musical ensemble.
The person who does the arranging is called an arranger.
Arranging can be applied to any genre of music, from classical to popular music. It can involve changes in melodies, harmonies, structure, and organization of rhythms. This process allows musicians to make a song more interesting, emotionally enriched, and recognizable to listeners.
Stages of arranging in music:
Arranging in music involves several stages, each of which requires a carefully thought-out strategy and creative approach.
- Choosing musical instruments
At the first stage, it is important to choose the musical instruments that will be used in the composition. These can be keyboards, guitars, drums, strings, wind instruments, or any other instruments that complement the musical image.
- Distribution of roles for musical instruments
At the second stage of arranging, you decide what role each instrument will play in the composition. For example, one instrument can be used for soloing, while other instruments can be used for accompaniment.
- Developing melodies and harmonies
The third stage of arranging involves developing melodies and harmonies in the composition. This may include adding new notes, changing chords, or creating new harmonic transitions.
- Arranging and placing sounds
At this stage of the arrangement, the musician arranges the sounds in space so that they create the desired atmosphere and effect. This can include panning sounds, mixing, and evenly distributing sounds.
- Recording and mixing
The last stage of arrangement is recording and mixing the composition. At this point, the arranger works with sound techniques and processing to ensure that the music material has the proper sound quality and balance.
As a rule, professional and experienced arrangers carry out the 5th stage as part of the creation of an arrangement and do not realize that after the first four stages they have copyright to the arrangement as a derivative work. The fifth stage, however, grants the arranger related rights to the Phonogram and adds the status of the Phonogram Producer – an individual who takes the initiative and is responsible for the production of the phonogram (according to part 12 of Article 1 of the Law of Ukraine “On Copyright and Related Rights”).
Thus, after the arranger completes the full cycle of creating the arrangement from processing to mixing, he receives:
1) Arrangement – a derivative work, a separate object of copyright and
2) Phonogram – an object of related rights. And, accordingly, the arranger may dispose of the respective rights to the Arrangement and the Phonogram, including receiving remuneration (royalties) for the use of these intellectual property objects by third parties.
In the modern world of show business, we often face the problem that authors, artists, arrangers, phonogram producers do not have even minimal knowledge of what rights they have to their own results of their creative activity, including those created to order, and how they can use and protect these rights.
Therefore, we always advise you to seek the services of an experienced intellectual property lawyer and show business practitioner who will help you avoid the misuse of the fact that creative people are not aware of their intellectual property rights by interested parties for their own purposes.
arrangement / copyright / creative processing / derivative work / intellectual property
