Arrangements play a pivotal role in modern pop music composition, significantly influencing a song’s expression, style and ambience. Even when the lyrics and melody remain the same – and are performed by the same singer – different arrangements can create diverse auditory and artistic experiences for a song.
While both theoretical and practical legal circles have little dispute over the copyrightability of lyrics and main melodies, the question of whether arrangements are eligible for copyright protection has sparked considerable debate.
In the early days of legal practice, some courts explicitly denied the originality of specific song arrangements. For instance, in Li Lixia v Cai Guoqing et al (2003), the court ruled that the song arrangement – which included instrument selection, communication with accompanists and computer programming – was categorised under labour rather than creative work.
Similarly, in Tian Feng v Beijing Yuehai Shengshi International Music Culture Development (2009), the court determined that sounds other than singer vocals in the recorded product did not fall under the category of musical works, as defined by the Regulations for the Implementation of the Copyright Law.
Due to the influence of these earlier cases, some legal experts concluded that musical arrangements lacked originality and, therefore, couldn’t be protected by copyright. However, such conclusions might be overly hasty.
First, the conclusions of these cases solely pertained to arrangements of the specific songs. They merely reflected the courts’ determination that a specific arrangement did not meet the copyright law’s criteria for originality, rather than making a blanket statement that all song arrangements lack copyrightability.
Second, these cases occurred more than a decade ago; so applying their conclusions, asserting that arrangements are ineligible for copyright protection, may require reconsideration in an updated context of modern music and technology.
Assessing whether an arrangement can be protected by copyright essentially boils down to evaluating whether the arrangement satisfies the criteria for creating a work.
To answer this question, it’s important to first understand the specific meaning of an arrangement in the music creation process and the primary tasks involved.
What is an arrangement?
Modern pop music is basically homophonic music that has a main melody played by vocals or instruments alongside harmony and other musical elements. The composition of modern pop music usually refers to creating the song’s main melody.
Everything beyond the main melody – which includes harmony composition (chord selection, creation and arrangement), texture building, key arrangement, rhythm adjustments, secondary melody writing, orchestration (selecting and arranging timbres for vocals or instruments), and more – could be categorised under song arrangement.
Some music professionals refer to this process as accompaniment production but, objectively, the results of an arrangement can exist independently of the main melody. Some song arrangements can even be appreciated or used as purely instrumental music.
The arrangement focuses on enriching the musical space, aiming to elevate musical depth and embrace diverse styles. With the development of modern music and technology, melodic composition and the creation of other musical elements could gradually become separate processes, making arrangements an independent profession in the music industry.
Constitution of a work
According to article 3 of the Copyright Law, a work is defined as an intellectual creation in the fields of literature, art and science that has originality and can be expressed in a certain form.
In terms of “can be expressed in a certain form”, an arrangement can be presented in the form of a full score, a live performance, or recorded in an audio recording and played back. Clearly, an arrangement meets the requirement of being expressed in a certain form.
Regarding originality, as mentioned above, arrangements typically involve making choices, organising, arranging and shaping musical factors such as timbre, harmony, rhythm and musical form, rather than mere recording.
An arrangement can add depth to music, enrich the presentation of a song, shape emotional environments and spaces, and have an impact on a work’s expression. Evidently, the arrangement possesses originality.
However, not all arrangements may meet the requirement of originality. In the field of music, after years of development and evolution, there are numerous elements in the public domain such as common chords, chord progression templates, rhythmic patterns, and scales.
If a song arrangement merely employs existing chord progression templates – or overly simplistic or formulaic orchestration, basic transpositions and key changes – the arrangement might lack the originality required for copyright protection.
Assessing the originality of an arrangement requires analysing whether the specific arrangement deviates from established conventions or patterns, and reflects a personalised expression in its creation, utilisation or arrangement of the involved musical elements.
In its evolution, the concept of music has expanded beyond just the main melody to a comprehensive auditory experience presented in the form of sound waves.
Elements such as musical form, harmony, rhythm and timbre within an arrangement are indispensable components of modern music. The choices, combinations, arrangements and innovative compositions of these elements all have the potential for originality and can be presented in various forms.
Therefore, certain song arrangements are possibly eligible for copyright protection.
Bai Xiaoyang is an associate at Wan Rui Law Firm. Wan Rui Law Firm is a member of Sanyou IP Group