Legality of producing a product based on someone else's intellectual property

[Jopo1]

Hi everyone, my query is a bit long winded I'm afraid, if you can be bothered to bear with me!

I want to produce and sell a set of backing tracks with accompanying score to accompany some piano exercises that are someone else's work.

The piano exercises are packets of cards that are sold alone, or as part of a method book set. The materials are branded with a trademarked brand and of course all work is copyright. The authors of the method book and exercises are American, and they are printed in the UK for the UK market. I imagine the copyright and trade mark protections extend worldwide, not just in the US

The backing tracks I have produced are entirely my own work comprising MP3 files of my own composition, along with a notated score of the tracks. My intention is for teachers to buy the tracks and score with a licence to send them to their students for use at home as backing tracks, or to use the score in the lesson to play duets with their students.

While the music itself is my own, the product doesn't have a use except as an accompaniment to the piano exercises. Teachers and students would have to have their own copy of the piano exercises for my product to have any use to them at all.

Would I be infringing on the authors'/composers' legal rights by creating and selling the backing tracks?
I have emailed them and they say it would infringe their copyright.

I would also need to refer to the title of their books, and if I'm not allowed to mention its name without permission there's no point in me continuing with my project.

I'd appreciate any advice on where I might stand legally.
Thank you

Jopo1

[tacpot12]

if they have a registered trademark for their product, then strictly you need to licence the use of their trademark. Due to the Madrid agreement, infringing a US registered Trademark might lead to prosecution in the UK.

Have you asked how much it would cost to license their trademark? If you offer to pay them 5% of your profit, you might be able to get a licence and proceed with your project. They might be able to help you market your product in the US, so you might be able to create a mutually beneficial arrangement.

[dspp]

The piano exercises are packets of cards that are sold alone, or as part of a method book set. The materials are branded with a trademarked brand and of course all work is copyright. The authors of the method book and exercises are American, and they are printed in the UK for the UK market. I imagine the copyright and trade mark protections extend worldwide, not just in the US
Jopo1

I think you mean "printed in the US for the US market" ?

Are your backing tracks a recording of you playing the US-authored score ? If so you need to arrange to licence that score. Alternatively you could write your own (sufficiently different) score and construct your own (sufficiently different) set of exercises.

Best is to get a licence. As well as the 5% you could also offer to throw in a return licence to your own work for free. However they might then take you up on that and abuse your work. They might do just that anyway.

regards, dspp

[johnhemming]

Would I be infringing on the authors'/composers' legal rights by creating and selling the backing tracks?
I have emailed them and they say it would infringe their copyright.

Music copyright is a complicated thing.

There is a copyright in the dots. Meaning that the actual music has a copyright in it. This tends to be any melody line and chord sequence.

There can then also be a copyright in any arrangement of the music, but that adds to the copyright of the dots.

There is also a copyright in any recording based upon the music.

There are different organisations that collect copyright payments. The PRS collect money based upon the music. Actually if you perform someone else's music live (and they died less than 70 years ago - I think that's the figure) you in theory should pay them.

The MCPS collect recorded (Mechanical Copyright) payments.

There is in fact for a video recording an additional (not replacement copyright).

Hence the original author has a copyright. It is not a criminal offence to breach copyright, but you can end up being sued in the civil courts. I would always recommend trying to sort this out.

There was a really interesting music copyright case in New Zealand about a recording which was like Eminem.

https://www.theguardian.com/music/2017/ ... -copyright

[gryffron]

It is not a criminal offence to breach copyright, but you can end up being sued in the civil courts.

It IS a criminal offence to breach copyright. That's the huge difference between copyrights and patents. Copyrights are criminal, patents are civil.
https://www.cps.gov.uk/legal-guidance/i ... fringement.
Deliberate infringement of copyright may be a criminal offence.

Gryff

[johnhemming]

It is not a criminal offence to breach copyright, but you can end up being sued in the civil courts.

It IS a criminal offence to breach copyright. That's the huge difference between copyrights and patents. Copyrights are criminal, patents are civil.
https://www.cps.gov.uk/legal-guidance/i ... fringement.
Deliberate infringement of copyright may be a criminal offence.

Gryff

Fair point

Under the criminal law, certain uses of copyright, registered designs or trade mark, without the owner's permission can amount to a criminal offence. These are often referred to as piracy, for a copyright infringement, intentional copying for registered designs, and counterfeiting, for a trade mark infringement.

It clearly has a mens rea aspect. Yes if you are just turning out pirated CDs that can be a crime.

Most of the copyright stuff that I have encountered (I have a membership of PRS and MCPS) is civil, however.

[UncleEbenezer]

IANAL. Hopefully someone'll correct me if I have the wrong end of the stick.

While the music itself is my own, the product doesn't have a use except as an accompaniment to the piano exercises. Teachers and students would have to have their own copy of the piano exercises for my product to have any use to them at all.
Jopo1

That looks as if it could be the crux of it.

If your customers already have the exercises (the material that is someone else's copyright), you should be fine supplying them your additional work that builds on the copyright material.

If you are supplying the copyright material, your baseline is you're a retailer selling a product - just as if it were a physical product - which you have yourself legitimately acquired, and you're also selling your own work alongside it. Two separate products, with advice that the one is a prerequisite for the other. The thing to watch there would be if there are silly and onerous licence restrictions (whether or not legal or enforceable) like seeking to ban resale or sharing.

What you'd want to negotiate over is the terms under which you retail a bundled product. And perhaps whether you can seek a mutually beneficial relationship where they promote your work as complementing their own. If you reach a specific deal, that surely trumps legal generalities over the copyright!

[gryffron]

Most of the copyright stuff that I have encountered (I have a membership of PRS and MCPS) is civil, however.

My guess would be that if the copyright holder wants to recover some cash from the offender, then a civil action is required.
Trading Standards, Police etc will bring criminal prosecutions against the offender, but not recover any value for the owner.

Gryff

[dspp]

IANAL. Hopefully someone'll correct me if I have the wrong end of the stick.

While the music itself is my own, the product doesn't have a use except as an accompaniment to the piano exercises. Teachers and students would have to have their own copy of the piano exercises for my product to have any use to them at all.
Jopo1

That looks as if it could be the crux of it.

If your customers already have the exercises (the material that is someone else's copyright), you should be fine supplying them your additional work that builds on the copyright material.

If you are supplying the copyright material, your baseline is you're a retailer selling a product - just as if it were a physical product - which you have yourself legitimately acquired, and you're also selling your own work alongside it. Two separate products, with advice that the one is a prerequisite for the other. The thing to watch there would be if there are silly and onerous licence restrictions (whether or not legal or enforceable) like seeking to ban resale or sharing.

What you'd want to negotiate over is the terms under which you retail a bundled product. And perhaps whether you can seek a mutually beneficial relationship where they promote your work as complementing their own. If you reach a specific deal, that surely trumps legal generalities over the copyright!

I think when the OP says, "along with a notated score of the tracks. " that is the point where the OP would be breaching copyright. It sounds to me (and I may be misunderstanding) that the OP is intending to reproduce the scores of the US-tracks and add some additional notation.

regards, dspp

[johnhemming]

I think when the OP says, "along with a notated score of the tracks. " that is the point where the OP would be breaching copyright. It sounds to me (and I may be misunderstanding) that the OP is intending to reproduce the scores of the US-tracks and add some additional notation.

It is producing even a recording of the exercises that potentially breaches copyright unless it is arguable that the exercises are not original, but that would be difficult with referencing them.

I don't think this comes close to a criminal argument, however. Still best to sort it out anyway and then there would be no proceedings.

[johnhemming]

I was thinking of an interesting example of this.

From time to time I arrange for video recordings of my gigs and put them in youtube. One one occasion we did a number and youtube automatically recognised a tune and said it was a copyright violation of the music and stopped it being publicly available.

Most of the tunes I play are out of copyright (possibly all of them now) and youtube may have changed this approach. From a music publishers point of view there can be a benefit to having the music promoted by a number of artistes, but the law gives control to the holder of the music copyright.
(these exercises count as music from that perspective)

[Jopo1]

To clarify I have no intention of re-writing or recording someone else's music and selling it. I know this is a breach of copyright

My query is about whether or not the ACCOMPANIMENT that I create to be played along with someone else's work is a breach of their copyright.

Thanks

Jopo1

[Jopo1]

that the OP is intending to reproduce the scores of the US-tracks and add some additional notation.

regards, dspp

No I'm not reproducing the scores. I only want to supply the additonal accompaniment.

Jopo1

[dspp]

that the OP is intending to reproduce the scores of the US-tracks and add some additional notation.

regards, dspp

No I'm not reproducing the scores. I only want to supply the additonal accompaniment.

Jopo1

Jopo,

Then I had misunderstood as I thought you were reproducing the US-score.

However if what you produce can be picked up in isolation, and contains no more than very brief "fair use" quotes from the US-stuff, then I think you are OK.

I hasten to say that although I am an author and an engineer (not a musician) and so have some knowledge, this is an area where IP-lawyers ought to be consulted. You may be delicately skating a thin edge.

regards, dspp

[AF62]

The issue seems to be quite straightforward.

You want to sell a product which is only usable with another person's product, but nobody knows about your product and that it is to be used with the other person's product. Hence if you are to gain any sales you need to be able to mention the other person's product in your marketing material.

The $64,00 question is whether that is permitted.

I would say it was.

Just take a look at all the coffee capsules you can buy where the packet says "compatible with Nespresso machines". There is no way that the producers of these compatible capsules get permission to use the Nespresso name on their packets as Nespresso really dislike the fact these capsules are sold (and these could only be sold when Nespresso's patent on the pods expired, but that is a separate issue to using their name).

What the compatible capsules do not do is make out that they are Nespresso capsules, as that would get them in trouble.

So my view is that if you followed the same route as describing your music as being compatible with X's piano exercises and don't use their logo or anything like that, then you will be on the right side of the law. However as the seller of the piano exercises have already indicated that they don't want you to do this, then I would suggest taking professional advice would be sensible.

[johnhemming]

The recordings are like a cover version of a song and this page is relevant:
https://www.bandcds.co.uk/faqs/need-pay ... -songs-cd/

[AF62]

The recordings are like a cover version of a song and this page is relevant:
https://www.bandcds.co.uk/faqs/need-pay ... -songs-cd/

As I understand it what the OP is proposing to sell is their own music and isn't a cover version of the other person's composition.

It is simply to be played at the same time as the other person's composition is played on the piano.

[johnhemming]

The recordings are like a cover version of a song and this page is relevant:
https://www.bandcds.co.uk/faqs/need-pay ... -songs-cd/

As I understand it what the OP is proposing to sell is their own music and isn't a cover version of the other person's composition.

It is simply to be played at the same time as the other person's composition is played on the piano.

My understanding is different:

I want to produce and sell a set of backing tracks with accompanying score to accompany some piano exercises that are someone else's work.

[AF62]

The recordings are like a cover version of a song and this page is relevant:
https://www.bandcds.co.uk/faqs/need-pay ... -songs-cd/

As I understand it what the OP is proposing to sell is their own music and isn't a cover version of the other person's composition.

It is simply to be played at the same time as the other person's composition is played on the piano.

My understanding is different:

I want to produce and sell a set of backing tracks with accompanying score to accompany some piano exercises that are someone else's work.

But they say

The backing tracks I have produced are entirely my own work comprising MP3 files of my own composition

So what they are selling is to be used with the other person's composition, it isn't a cover of the other person's composition. They are proposing selling the mustard to accompany the other person's roast beef.

[johnhemming]

So what they are selling is to be used with the other person's composition, it isn't a cover of the other person's composition. They are proposing selling the mustard to accompany the other person's roast beef.

One assumes it has the same chord sequence. Copyright tends to be with the melody line and chord sequence. Some chord sequences are not that unique, but if it is to be sold and marketed with the original exercises it is a difficult argument to say that it is not based upon the original intellectual property. It is much like an arrangement or say a jazz solo along with the original track.

In the end it is probably worth agreeing some form of royalty if only to avoid an expensive legal row.