Music Rights for Plays and Musicals January 21, 2008
Posted by Gordon Firemark in : Theatre law, entertainment law , trackbackRecently, received the following question via the ‘net, so I thought I’d answer here, since it’s a common and often misunderstood area.
I wrote an original play … We have a DJ who spins slightly different cues
every night, as the show has a bit of improvisation. Are we responsible to
get music licensing rights for playing this music? We do not include any
description of the artists, use their likenesses or in any way advertise to
capitilize on their work. The music is important to the arc of the show, but
under the control of our DJ. I have heard several conflicting (and
confusing) opinions on this matter and was wondering if you could tell us
what you think.
Well, first my answer is that yes, they must obtain clearance to include the music in the show.
Grand Rights vs. “Small” Performing Rights
Ultimately, the analysis of this question depends on the nature of the use of music. While it’s true that most venues pay ASCAP and BMI for blanket music licenses, which allow for the performance of music, the rights granted by these performing rights organizations cover only the so-called “small” performing rights.
Small performing rights essentially means the right to play or perform the song publicly, in an out-of-context way, where the song does not play an integral role in the overall performance. Typically, this includes radio airplay, live performances in a restaurant or bar. In a more theatrical situation, one example might be the use of a CD to play pre-show or post-show music, or in a revue type performance or concert.
Where the music in question is ‘important to the arc of the show’ as in the question at hand, we’re talking about so-called “Grand” performing rights.
Grand Rights, sometimes also referred to as “Dramatic Performing Rights” are for performances of the composition in a dramatic setting, such as within a stage play or musical, an opera, ballet, etc., where the compensation becomes part of the story, plot or theme of the performance. An example of a grand rights use is where a character in the show sings a popular song, or recites the lyrics to a favorite.
Grand Rights are not administered by ASCAP, BMI or any other, similar performing rights society. Instead they’re controlled by the composer and/or music publisher. Thus, in order to secure the necessary rights and permissions, the producer of the show must identify each song’s composer and publisher, and negotiation the terms of a license.
License Terms
Grand Performing Rights licenses may vary widely in scope and expense. In some instances, the playwright may have prenegotiated a royalty rate to be paid for uses of songs contained within the show, in others, the producer may have to offer a royalty based on a percentage of gross box office receipts. In many cases, the publisher of the song will want a guaranteed minimum fee.
In this day and age of the ‘Jukebox Musical’, this type of licensing is becoming more commonplace, so publishers have some sense of how to proceed, so, when multiple songs are included in a show, it’s often possible to negotiate a favored-nations deal, or a “pooled” royalty for music, in which each song recieves a pro-rata share of the pool.
Another point of concern is the scope and duration of the license granted. I’ve been brought in to help with more than one musical where songs have had to be ‘pulled’ and replaced because of license expirations, or ‘holdback’ provisions imposed by publishers. Obviously, changing a show mid-run can be a hair raising adventure, and may disappoint audiences and critics.
Conclusion
The best advice I can offer to directors and playwrights is to anticipate these issues when selecting music to incorporate into a show. Plenty of time should also be allocated to the licensing project. There’s nothing worse for your bargaining position to be negotiating the royalty in the hours before the show is slated to open.
And of course, the help of a lawyer experienced in both music and theatrical matters can be invaluable in these situations.
Comments»
[...] just posted a short piece on my other site – Theatrelawyer.com about using pre-existing music in a play or musical show. It’s a short discussion of [...]
Here’s a question to piggyback on the question answered above. What if the performance is free and the producer and performer are making no money on it? Do they still have to pay royalties?
Ross –
Yes, the issue isn’t whether the producer and performer are making any money. The songwriter, publisher and record label are in business to make money, and the song(s) are the product they sell.
Copyright law doesn’t distinguish for-profit, from non-profit in determining whether a use is infringing… the rule is that only the copyright owner has the right to make/distribute copies, derivative works, and to perform or display the work in public. If someone else does so without permission, it’s copyright infringement.
That’s not to say that some copyright owners aren’t sympathetic to non-profit or low-budget productions, and might grant free or cheap licenses, if asked.
Best bet in these situations, is get permission.
-Gordon
Thank you for this post. I’m a lawyer (with a small amount of copyright experience, although not in this area) as well as a playwright, So this is of particular interest to me.
My current project involves a musical theatre adaption of a work from another medium, working in the discography of a (now-defunct) performing artist (band). Like — a stage version of “Citizen Kane” incorporating music by The Bangles (except, you know, not that *stupid*).
My question — and I hope I can phrase this correctly — deals with music rearrangements. This isn’t a typical “jukebox” musical where the songs would be simply sung or played. The music in places would be orchestrated (slowed down, jazzed up) to fit the dramatic necessity of the scene. Perhaps combined with other songs (an overture?). Minor lyrics changes too (”he” to “she” and vice versa).
In your experience, do Grand Rights licenses typically allow re-arrangements of the songs, or is that another whole level that one has to deal with? I get the sense that Grand Rights licenses are not boilerplate, and I’m wondering if you could shed some light or had any experience with musical re-arrangements in a Grand Rights context.
Thanks in advance….
Actually, it still sounds like it fits within the “jukebox” genre. I think you meant that it’s not just a “concert”, but a musical with a storyline, and that the songs are part of, and advance that story line.
A “Grand Rights License” isn’t a standard form… it’s a custom-tailored document, so include what you need.
Bottom line is this: The Grand Rights licensing involves a negotiation… so be sure the rights you need (such as the right to re-arrange, orchestrate, change lyrics, and to compile into an overture are included in the negotiations.
In many cases, the rights holders will insist on a right of approval over such changes, so be sure to leave enough time to go through all the hoops before the show’s ready to hit the stage.
I’m a composer, and several times have learned of my music being used in a ballet or theatrical production without my permission. In several cases it was because of reviews in the NYTimes or Boston Globe mentioning my name as composer “with an evocative score by…”, even though I knew nothing about it! But at least they credited me. In one recent production, at a major theater in New York, I learned of it from an attendee who wrote saying “I love the music you did for such and such”. I learned the production ran for a week and my music was used as the soundtrack for much of it but they didn’t even credit me in the program. I guess they didn’t want me to find out. On one hand, I’m flattered of course, but on the other I’m pretty annoyed. Its my music and I feel that I should be able to say yes or no to its use. I don’t want my music to be associated with a production that is offensive, or just plain bad. Isn’t there anyone at these theaters that makes sure productions have their paperwork in order? What should a composer do when they find out about a copyright infringement, without coming off as a jerk?
Many thanks for the post on this topic. In a magician’s routine in a public performance, the use of music as background could be considered integral to the the routine, or a part of the “story” being presented, but its use is typically to augment the effect and provide an additional emotional hook. Thus, it appears as though the music could require a grand rights license. Generally, would you see it this way?
Regards, and thanks.
<p><p><p>I have recently learned that to use “recorded” music for a theatrical musical is a contract violation. This is true even if you have purchased the rights, hired an orchestra and recorded it yourself. To the best of your knowledge are there exceptions to this?
Unfortunately, the comments on this blog don’t work well as a discussion forum. I can’t answer specific questions here, but I’m happy to consult via telephone or private email. Use the CONTACT US page to get in touch with me directly.
Hi, I’m interesteed in the musical ZORRO which is on stage in London at the moment. Where can we get information about the performing rights/conditions/songbook/notes etc?
I’m not sure what information you’re seeking. If you’re hoping to do an amateur, stock or other production of the show yourself, the rights are probably not yet available. If you’re interested in producing a major, commercial production in the U.S., they MIGHT be. Contact the producers of the London production, or the authors directly. (through their agents, of course). If you need help structuring a proposal, my office can help.
Great post! As an American theater producer in China, I still try to uphold IPR practice. I’ve already got verbal agreement from the artists to use their music in the “grand” performance level, but I’d like to know if there is a simple form available online that I could use for them to sign so that I can rest easy knowing that I won’t get sued and they will know the limits of my intended use of their music.
Thanks for any info/help you can provide!
I’m not aware of any such online forms, Elyse, but then, I haven’t really looked. “Grand Rights License” might turn up some good results in google. OR, you could hire a lawyer to draw something up for you!
I have been asked to direct an original stage-play using songs performed by Elvis, although not necissarily his original compositions (i.e. written by another artist but recorded by Elvis).
What are the first steps to obtain a grand license for use of these songs, especially where it has become difficult to trace the actual rights-holder of some of the songs.
Is there an aorganization (like Canada’s SOCAN) that I can deal with for the entire musical?
I have written an original stage play and I also written the songs that are in the play. How can I receive publishing rights for the play. I have copyrights with the Library of Congress. I would like to have publishing rights for my original stage plays. I am registered with BMI and I have written several other plays. It would be most appreciated if you could e-mail me that information at the following address.
There’s no one organization, but you can usually determine the owner of the rights by searching ASCAP’s and BMI’s catalogs via their websites. Then it’s simply a matter of contacting the publisher for each song to obtain the license you need.
This is the trouble with jukebox musicals… the rights clearance process can be time consuming, expensive, and disheartening. A lawyer skilled in theatre law and entertainment law can help.
Cynthia –
You own those publishing rights until you sell or license them to others. If you license the play to a publisher, they’ll probably also insist on holding the grand-rights to the songs contained in the show.
Otherwise, as the author, you own the copyright, and therefore all publishing rights to the play.
I am associate producing a production of Shakespeare’s “As You Like It.” However, it will be set in the 1980s, featuring songs of that decade in karaoke style (playing an actual track or cover track while the performers sing-along on stage). We are a 99-seat equity waiver theatre in Los Angeles. Brief research points toward – better safe than sorry – get rights. Based on this discussion, my situation seems like it would fall under “small performing rights.” The show does not go up until this summer, but how should I start? For example, is there a single company I can contact to begin the attempt in obtaining rights, or do I need to find out who owns each song we hope to use and contact each record label and/or artist individually? Thanks!
I just posted the above question (#18) and re-reading the prior discussion I now realize the situation I asked about would actually be “Grand Rights.” This makes sense as when we contacted ASCAP they stated they do not do licensing for theatre. So, my question remains the same (how/where do I start?), but I just wanted to point out my mistake. Thanks again!!!
Julia -
These comments aren’t the place for specific legal advice, so I’ve sent you a private email with some more information.
I am part of a small community theatre. We do not have a live orchestra, but however would like to use karaoke music for the songs in the musical exactly how they are written in the script. Do we have to have a special license for using a karoke cd from a company like star performers?
Our church would like to put on Joseph and the amazing technicolor dream coat. We are not wanting to charge for the performance, as we are wanting to have two shows and have free admission. do we still need to purchase performing license through Rodgers and Hammerstein to do this?