I'm in my office, listening to “Left Side Clouded”, a song from The Sea & Cake's 2003 release, “One Bedroom”. Great song, and I think I could manage to play it on my guitar. I'm looking now on ultimate-guitar.com for a tabulation. Nothing. So I'll have to make one myself, and once I'm finished I'll post it to ultimate-guitar.com so others can use it. Can I do this?
The major music publishers and their representatives at the Music Publishers' Association say I cannot. They claim that guitar tabulations are “derivative works” — i.e., works that “recast, transform or adapt” pre-existing copyrighted works — and that they, as copyright owners of the original music compositions, have the exclusive right to make or authorize these tabulations.
Is this argument correct? Probably. Guitar tabulations are nothing more than a translation of sounds into musicial notation. As such, they are almost certaintly derivative works for the same reasons that a translation of a French-language book into English would be. So if I make my tabulation and post it to the web, I might be liable for a copyright violation — and that can mean up to $150,000 for each song I tabulate. Yikes.
Even if my humble guitar tab is infringing, might I possibly escape liability under the fair use doctrine? I wouldn't bet on it. The copyright law sets out a multi-factor test for fair use — you can review it here. I won't go into all the details, but because the guitar tab sites are mostly commercial (i.e., they use the tabs to attract surfers to their ads) and because some users probably consume free tabs instead of paying for the publishers' authorized sheet music, fair use is unlikely to protect me (or, more importantly, the web sites that distribute tabs).
So that's the legal analysis from my perspective. I'd be interested in your comments — especially if you disagree! But I'd like to end this post with a word about the deeper and more important issue that this guitar tabulation copyright dispute illuminates. Think again about “Left Side Clouded”, that song by The Sea & Cake that I want to tabulate. I think it's a great song, but most people don't — it's not a hit, even if I like it a lot. Most songs (and indeed albums and bands) are like that — in general, people are indifferent or unaware, but a few people are real fans. And it is the real fans who do the guitar tabulations for all the non-hits. If the publshers use copyright to shut this down, the result will not be 99-cent downloadable tabulations for thousands and thousands of songs. The result will be 99-cent downloadable tabulations for a relatively small number of hits — for only those songs for which enough tabulations can be sold to make the cost of preparing and presenting them worthwhile to the publishers.
That strikes me as a bad outcome. Anyone have a different view?