Can I Claim Publishing for Public Domain Song?

Dear Rich: I have an album project where I have two "traditional" songs that are being performed in an original manner. Can I list myself as the publisher? 

It would be improper to list yourself as the publisher of a public domain song (we assume that by "traditional" you're referring to PD music). However, you may be able to acquire copyright protection for your unique arrangements. 

You can't list yourself as the publisher. A music publisher is a company that owns songwriting copyrights and collects money from people who sell, perform or modify the songs. Because public domain songs are not protected by copyright (they are free to the public) no one can claim ownership of these compositions. Publishers who claim ownership of PD music and try to enforce their claims are subject to lawsuits. One workaround is to add new lyrics to a public domain melody. Elvis and Ken Darby wrote new lyrics (Love Me Tender) for a civil war song (Aura Lee) and their music publisher can stop anyone from using their derivative version (though they can't stop anyone from using the Aura Lee music and lyrics). 

You can claim rights to a public domain arrangement. Although you cannot claim ownership of a public domain composition, you may be able to claim copyright of your arrangement. However, in order to assert affirmative rights (that is, go after infringers), the arrangement must be more than a trivial variation of the original. As one case established, "To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work." Perhaps more importantly, royalty collection organizations enable you to get paid for your public domain version. For example, the MLC allows you to register public domain works, as do Songtrust, CDBaby and other rights organizations.

Can We Arrange Elvis Songs?

Dear Rich: I’m planning to create an arrangement of Elvis Presley tunes for string quartet. Do I need permission to just use these arrangements for my own string quartet? What if I want to sell the arrangements to others? We love your idea (and others like it, too). You're probably okay arranging and performing a few Elvis songs for private performances. That's because the owners of the music are unlikely to notice (or to care if they do find out). If you plan to perform the music, publicly, the venue would need to pay for public performance royalties (sidebar on right under U.S. copyright law). If you were to record and release the music, you'd need to pay mechanical royalties.
What if you want to do more? You will need permission if you plan on promoting sales or distribution of sheet music arrangements to other quartets (or seek to stop others who copied your arrangement). That's because the making of sheet music requires authorization whether it is a straight reproduction of the sheet music or an “arrangement” or “orchestration” that qualifies as a derivative work. In other words, you can't reproduce the underlying work -- for example, Heartbreak Hotel -- in a printed arrangement, without the publisher's permission. You can usually find the music publisher’s contact information at the following sites: Harry Fox, BMI, ASCAP, or Limelight. Also, the National Association for Music Education website has an example of a request form for permission to create musical arrangements.