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Ask Timothy D. Smith, Esq. Your Own Question

Timothy D. Smith, Esq.
Timothy D. Smith, Esq., Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 1912
Experience:  Patent Bar Certified
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A man named Jamey Aebersold made a very popular book called

Resolved Question:

A man named Jamey Aebersold made a very popular book called the Charlie Parker OmniBook. He and a friend transcribed 60 of legendary jazz saxophonist Charlie Parkers well known solos. This book is the sax players bible.

A friend and I also transcribe. I want to make a book of my own with 60 or more of Charlie Parkers transcribed solos and I want to sell it. Obviously Aebersold did it legally because the book has been in print and distributed since 1978.

How do I pursue my project?
Submitted: 8 months ago.
Category: Intellectual Property Law
Expert:  Timothy D. Smith, Esq. replied 8 months ago.
I hope this message finds you well. I have been practicing intellectual property law for over a decade. It is a privilege to assist you with this matter. However, in order to properly answer your question in an easy to understand manner, I need a little more information from you.

In what way would your transcription be different than the Aebersold work? Would your transcription constitute your own original contributions to the songs, i.e., what are you adding and how different would it be to the original and the Aebersold work?

Answer those questions for me and I should be able to give you a detailed answer that will assist you in making a decision going forward.

Thanks and I look forward to hearing from you.
Customer: replied 8 months ago.

There are lots of transcribed solo books out there in the Jazz world. For example, a musician will study an artist like Miles Davis and take his solo from All Blues on the Kind of Blue Album and write down his melody. It's a tremendous learning tool. I just bought a book of Cannonball Adderely transcriptions, who also played on that Miles Davis album and some of his solos from that same album are in the book I bought from Hal Leonard publishing.


 


The goal of transcribing a solo is not to add to it....it's to write it exactly how the musician played (although there are differences in writing styles and interpreting rhythms.


 


We don't want to duplicate what Aebersold has done. We want to (and have completed some) transcribe 60 different tunes that Charlie Parker has done. We're not copying Aebersold.


 


There's also the issue of the copyright aspect to The Head (melody) of the tune...Such as Charlie Parker recording the popular tune All The Things You Are or John Coltrane's melody and solo on My Favorite Things (from the sound of music). I'd like to be able to include the melody's to the tunes, not just the solo. But, if not able, the book will still sell with just the solo part.

Expert:  Timothy D. Smith, Esq. replied 8 months ago.
Erik, first off, I apologize for the delay (having some technical difficulties). As you your question, as you likely know, a writer performer can technically have copyright protection in two separate and distinct areas relative to one song. They can have copyright protection on the actual melody/tune as well as on the original performance. Normally, this also entails words, which does not come into play here I assume.In the present case, even though you are attempting to perfectly mimic and essentially codify these original works, you best legal defense short of getting permission to use the songs will be that you necessarily have added property of your own intellect in transcribing the work. If this is not a part of your personal work, then you are necessarily infringing on their copyright.There are some complicating factors for this as you can imagine. The world of copyright law can be divided into two different periods of time....prior to 1978 and post-1978. Copyrights prior to 1978 had a term of 28 years that could be renewed for an additional 28 years.The long and short of it for you is if a work was published between 1923 and 1963, the copyright owner was required to have applied for a new copyright term. If they did not, then the copyright expired and went into the public domain. If they did, the copyright will have a 95 year term and will enter the public domain no earlier than 2018. Therefore, if the Parker works were published prior to 1978 and the copyright was not renewed, there is a chance that the works are in the public domain, meaning you can do as you wish without consequence relative to transcribing.Otherwise, if the copyrights still exist, it is my professional opinion that you either need to seek written permission to publish the transcribed works, or you need to be able to effectively argue that your works, though close, are original works based on your own skill and transcription and therefore are not subject to copyright protection by the owners of the Parker works or otherwise by any other person or entity.The reason an answer has been hard to find for you is because this is actually a very technical intellectual property issue. If you claim this to be an identical or near identical transcription, then you are setting yourself up for an interesting legal battle if your publication is a success. If you make no claim to the Parker works and admit that this is your own interpretation and transcription based on your skill set and ear for music and transcription talents, then you will have a defensible claim. This is very nuanced, but should be enough to win the day. However, I would urge you to seek approval from the owners of the works, assuming the copyrights are still in existence.Let me know if you have any additional questions or comments. Best wishes going forward.
Timothy D. Smith, Esq., Patent Prosecutor
Satisfied Customers: 1912
Experience: Patent Bar Certified
Timothy D. Smith, Esq. and 2 other Intellectual Property Law Specialists are ready to help you
Customer: replied 8 months ago.

Thank you. XXXXX pursue this, are you for hire if I need help? Erik

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