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So I have been transcribing a copyrighted song (as a HOBBY) that I love and was thinking about using it as a graduation song for my music school, but I’ve had to make some tweaks because there are some instruments involved that my music school doesn’t have access to. Even if I give credit to the composer, and I will make no profit from the performance, will it still be illegal to use my transcription?

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    Does this answer your question? Transcribing music and the legality of using musical transcription Jun 20, 2023 at 4:19
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    In several countries, there are organizations that deal with the copyright issue globaly. That means you pay a certain (quite small) fee to be allowed to perform a piece of music publicly, and the organization deals with the individual right owners. That makes reusing works much simpler.
    – PMF
    Jun 20, 2023 at 4:56
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    How does the music school usually deal with performances of copyrighted material? Sounds like something that might come up a lot. Jun 20, 2023 at 9:24
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    Further to @ItWasLikeThatWhenIGotHere's point, your music school may have a license with a PRO (performing rights organization) that covers your song. You might make some inquiries with the administration as to whether this is the case. Jun 20, 2023 at 13:21
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    @MichaelSeifert that would cover the performance but possibly not the arrangement.
    – phoog
    Jun 22, 2023 at 9:45

1 Answer 1

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Even if I give credit to the composer, and I will make no profit from the performance, will it still be illegal to use my transcription?

This definitely infringes the composer's performance and derivative work rights under the composer's copyright. There is a mandatory right to cover someone else's composition outside of a movie or TV show (roughly speaking) for a statutorily fixed royalty, but the bureaucracy is such that it would be impractical to do here.

Whether or not the "fair use" defense applies in this case is a "colorable" argument, but really, when you perform the entire work as written except for transcription, winning a "fair use" defense in a infringement action would be a long shot.

The fact that it is somehow connected to an educational activity would be the strongest argument in this case. Also, as noted in a comment, your school may have obtained express permission to cover the work:

Your music school may have a license with a PRO (performing rights organization) that covers your song. You might make some inquiries with the administration as to whether this is the case.

Radio stations obtain similar licenses to play a large catalog of music without individually obtaining licenses to use each work separately from the author.

This said, this kind of activity is often done, despite the fact that it is a copyright infringement, and most of the time, if the performance isn't too widely broadcast, most copyright owners will never pursue copyright infringement claims over something like this and indeed often won't even consider doing so.

Still, copyright is an absolute bar to infringing rights without permission, even if there is absolutely no money received for the work and even if there is full attribution of its author. I'm not a great fan of the law as it is, and it is often disregarded, but that is the law.

Also, this answer is based upon U.S. law, but there isn't much international variation in this part of copyright law in countries that meaningfully enforce copyright laws in their courts. But, as another answer notes, in some countries the mandatory right to do a cover of songs in the U.S. is much easier bureaucratically, in some other countries:

In several countries, there are organizations that deal with the copyright issue globally. That means you pay a certain (quite small) fee to be allowed to perform a piece of music publicly, and the organization deals with the individual right owners. That makes reusing works much simpler.

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    "copyright owners will never pursue copyright infringement claims"; "[the law] is often disregarded": I suppose that the likely award in a case like this would be nowhere near large enough to justify litigation. Is that correct? I mean, there's no profit of the infringer, which is relevant to the award of actual damages and profits, and the actual damages are minimal. If the plaintiff opts for statutory damages, the court has wide discretion on the amount of the award and it seems likely that most courts would stick to the lower end of the range, which is similarly minimal.
    – phoog
    Jun 22, 2023 at 10:15
  • @phoog Good point.
    – ohwilleke
    Jun 22, 2023 at 16:58
  • I think the PRO licenses are for "public performances". Performing a song in the context of a music school or a music lesson is far from a "public performance". Music teachers probably assume something like this is OK for a non-public performance.
    – Brandin
    Jun 27, 2023 at 11:34
  • I see online there is sometimes some litigation possible for a case like this (educational use, in the context of a performance), but the company in question seems to be regarded as a "copyright/patent troll": edweek.org/education/…
    – Brandin
    Jun 27, 2023 at 11:38
  • @Brandin Performing music at a graduation ceremony (assuming that the graduating glass is more than a dozen or so people) is a public performance. Performing at a recital would be a public performance. Performing for classmates only in a music class might not be a public performance. Also, the substance of what constitutes a copyright troll and a patent troll are very different things.
    – ohwilleke
    Jun 27, 2023 at 17:54

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