Musical arrangement is an indispensable part of music creation, yet the term "musical arrangement" lacks a clear definition both in musical and legal fields. This ambiguity has lead to the fact that some music arrangers are not able to obtain social status and income matching their massive efforts. Recently, the Beijing Internet Court (BIC) concluded a copyright infringement case where one of the plaintiffs surnamed Su asserted his rights as an arranger in the capacity of an author of the musical work in question. The BIC ultimately determined that the arrangement of the involved musical work had originality, and the plaintiff was entitled to the copyright of the musical work.

Case summary

The plaintiffs surnamed Fang and Su claimed copyright ownership of the musical work they co-created, in which Fang provided the vocal melody and lyrics, and Su completed the arrangement.  The defendant, a technology company, is the producer of a variety show. The two plaintiffs argued that the defendant unlawfully used their musical work as background music for a dance segment in the variety show without their permission or any compensation, infringing upon their rights to attribution, performance, and information network dissemination of the musical work, as well as the information network dissemination right of the sound recording of the work.

The defendant argued that Su as the arranger of the involved musical work was not the copyright holder of the work, and that the defendant had already reached a cooperation agreement with the China Music Copyright Association whereby the association was responsible for contacting the originators of the musical work and paying the copyright fees on their behalf. The defendant also contended that they had no intention of infringing on the plaintiffs' rights. The use of the musical work in question as background music in the show was brief and did not infringe upon the two plaintiffs' alleged performance rights. Furthermore, the song had low popularity and was subject to bundled sales. And the amount claimed by the two plaintiffs as compensation was exorbitant, lacking a factual and legal basis.

Focus of the dispute

Were the plaintiffs entitled to the copyright of the musical work in question? Did the defendant company infringe the plaintiffs' rights and should it bear civil liabilities?

After trial, the BIC concluded that:

According to the Copyright Law of China, the authors of a musical work include the lyricist and the composer. The plaintiff Su creatively arranged the work and composed the music based on the plaintiff Fang’s vocal performance, forming the musical work in question. Su's musical arrangement had originality and was an indispensable part of the work. Therefore, it could be determined that Su was one of the authors of the musical work and could jointly assert rights with Fang as the rights holder. The two plaintiffs jointly created the sound recording of the music and were entitled to the rights of the sound recording. 

The defendant, the technology company, used segments of the musical work and recording in question as background music for a dance performance in a variety show without obtaining authorization from the two plaintiffs or paying remuneration. Additionally, the defendant provided online on-demand streaming services for the episode. Although the production team of the show had communicated with the two plaintiffs after the broadcast of the show, they failed to obtain retrospective authorization from the two plaintiffs. Therefore, the defendant's actions infringed upon the information network dissemination rights of the two plaintiffs as the copyright holders of the musical work in question and the producers of the recordings.

Based on the content of the allegedly infringing video submitted by the plaintiffs, it was evident that the variety show did not appropriately or adequately credit the plaintiffs as the lyricist and composer of the music work, thus infringing upon their right of attribution. During the shooting of the variety show, there were a large audience present. The music was played as background music for dance performances, constituting an act of live performance of the music, an infringement of the plaintiffs’ right to performance of the music.

Details of the judgement

The BIC's first-instance judgement ruled that the defendant should compensate the plaintiffs Fang and Su for economic losses of 50,000 yuan($7025.1) and reasonable expenses of 5,000 yuan. Additionally, the court required the defendant to issue an apology statement to Fang and Su on the official social media account of the variety show. The content of the apology must be approved by the court and must be displayed for a duration of no less than 24 hours. If the judgment is not fulfilled within the specified period, the court will choose a nationally circulated newspaper to publish the main content of the judgment, and the publication costs will be borne by the defendant

Upon receiving the first-instance judgment, the defendant filed an appeal, which was denied.

Tips from the judge

Traditional theory holds that in musical works, the term composition refers to the "melody" or "simple arrangement of notes," and elements such as harmony and instrumentation, being essential to "serve" the expression of original melody, are considered lacking in originality. However, the music that people appreciate is the overall audio-visual effect of performers singing or playing music works, rather than just the melody of the music. Singing or playing music requires not only lyrics and musical content but also non-melodic expressions such as instrumental arrangement and mixing. Therefore, the originality of musical works is determined by both melodic and non-melodic elements.

In musical arranging, the conception, selection, processing, and combination of non-melodic expressions often reflect the intellectual creativity of the arranger, significantly influencing the final expression of thoughts and emotions in the work and demonstrating originality. In this case, the arrangement and mixing created by Su incorporated original and personalized expressions, constituting an indispensable part of the work. Su could be recognized as one of the creators of the musical work in question, along with Fang, and could jointly assert rights as a right holder.

Accurately identifying the role of arrangers as copyright holders highlights the substantive judicial protection of copyright, and encourages arrangers to continue their efforts in musical creation. This is conducive to maintaining the order in the music market and promoting the prosperous development of the music industry.