Music Rights for Plays and Musicals

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Recently, 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.

45 Responses to Music Rights for Plays and Musicals

  1. Alleyn Adnon says:

    Please how much (money) exactly does it cost currently to obtain the license/right to perform Joseph and the Amazing Technicolor Dream coat?
    I will love to get the answer/ reply possibly in details as soon as possible.
    Thanks in anticipation.
    Yours faithfully

    • Gordon Firemark says:

      To get a quote for the license fee, you’d need to contact the publisher of the show. In this case, that seems to be:

      Rodgers & Hammerstein Organization. See: http://www.rnh.com/show/57/Joseph-and-the-Amazing-Technicolor-Dreamcoat

      Elsewhere on the website, they provide the following contact information:

      Show licensing is managed by R&H Theatricals.

      For immediate assistance or status of your account, contact:
      R&H Theatricals Amateur Theatres
      Ph: (800) 400-8160
      Fax: (212) 268-1245
      e-mail: amtheatre@rnh.com

      R&H Theatricals Professional Theatres
      Ph: (212) 541-6600
      Fax: (212) 568-6155
      e-mail: protheatre@rnh.com

      The license fee for your particular production will vary depending on your venue size, location, nature of your producing organization, etc. The only thing to do is contact them and request a quote.

  2. Greg says:

    Regarding your comment above about the army of BMI and ASCAP auditors who visit restaurants and businesses to make sure they have a music license, the following is taken from ASCAP’s website: Here are the exact rules, as per ASCAP’s website:

    Exemptions from fees:

    A food service or drinking establishment is eligible for the exemption if it (1) has less than 3750 gross square feet of space (in measuring the space, the amount of space used for customer parking only is always excludable); or (2) has 3750 gross square feet of space or more and (a) uses no more than 6 loudspeakers of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; and (b) if television sets are used, there are no more than 4 televisions, of which not more than 1 is located in any 1 room and none has a diagonal screen size greater than 55 inches.

    An other establishment is eligible for the exemption if it (1) has less than 2000 gross square feet of space; or (2) has 2000 or more gross square feet of space and satisfies the same loudspeaker and television set requirements as for food service or drinking establishments

    • Gordon Firemark says:

      Thanks, Greg for digging up the specifics of the exemption. Hopefully, it will prove useful to readers of this blog who run such businesses.

  3. Greg says:

    If you have or ever get the time to watch a movie named “RIP A Remix Manifesto” I would be interested in reading your thoughts on that movie. Google search will take you to it, it’s on Hulu too

  4. Greg says:

    How does this apply to small community theater productions where runs are limited to 4 days or less and capacity of the theater is small,say- 50 to 300 people?

    Or what about dance studios or small community dance productions? Where kids choreograph dance steps to pop songs and perform for family and friends in small rooms?

    • Gordon Firemark says:

      Regardless of the size of the venue or length of the run, it’s necessary to obtain the required music rights. For dance concerts and studios, the required licenses are administered (in most cases) by the Performing Rights Organizations, (ASCAP, BMI, & SESAC in the U.S.). Most venues and dance studios already have “blanket” licenses in place to cover such performances. (rehearsals, too… each time the music is played in business that’s open to the public, it’s considered a “public performance” even when used only for practice, and whether there’s an audience or not).

      For plays and musicals, the rights are obtained from the play’s publisher.

      If music is ADDED to a show, rights must be obtained from the publisher and record label (if a recording is used).

      • Greg says:

        I recently read an article where “Weird Al Yankovich” stated he does not need a license or approval of copyright owner to perform or record a parody of a song. Is it true that parody is considered “fair use” and exempt from license requirements?

        • Gordon Firemark says:

          It’s true that a “true” parody doesn’t need a license… it’s considered a kind of “fair use”, and protected by the First Amendment (in the United States), provided that what’s taken is only as much as necessary to ‘conjure up’ the original in the audience’s mind. When Weird Al does a parody, he uses the entire musical composition, but changes the lyrics. He’s fortunate that the authors of the songs he parodizes are usually flattered by the attention, so the issue of how much he’s taking hasn’t come up.

          The issue that sometimes comes up, though, is that the alleged infringing use isn’t really a parody OF the song or work in question, but actually a Satire, using the song to poke fun at or highlight some other social issue. Satire is NOT automatically considered a fair use. The full 4-factor fair-use analysis would have to be applied to make that determination.

          • Greg says:

            Thanks for the awesome info! Great forum – As a songwriter I find copyright law fascinating.

            Why doesn’t the guy who gets paid an hourly wage to lay asphalt also earn .02 cents every time some drives over the road?

            Who really is going to police the kids dancing for money on the street corner with the their portable radios blasting out music and say “Give my $100 bucks out of your hat because that is my song you are dancing too and you didn’t get my permission to do that in a public place” – or does each city have a blanket license that covers street performers?

            What army of music auditors is going to find every dance studio or community room being used as a theater to find energetic creative people working on ideas, incorporating popular music and police them as if they are doing something wrong by incorporating contemporary music into their creative process and dance or artistic development?

          • Gordon Firemark says:

            Good questions!

            First the asphalt guy doesn’t get a royalty because he’s an EMPLOYEE… his employer pays him a wage, and he’s getting the benefit of his bargain.. .trading his time for dollars. Period.

            Songwriters don’t get paid for their time… they create PROPERTY, and the law provides for them to get paid every time someone uses that property.

            In the street corner boom-box scenario The kids dancing don’t pay directly, Payment to the songwriters is covered (in part) by the RADIO STATION paying royalties. This is actually one of the largest sources of revenue for songwriters.

            The “army of auditors” you’re referring to actually exists. Each of the Performance Rights Organizations, (ASCAP, BMI, and SESAC, here in the US) have staffs of people who actually go around identifying businesses such as dance studios, meeting halls, restaurants, bars, coffee shops, etc., that use music, and contacting them about licensing. If the business doesn’t pay for a license, these organizations DO sue them.

            The law does provide for very limited exceptions for businesses using small, unsophisticated systems (like a boom-box) to play music… but if music is an integral part of the business (i.e., installed speakers throughout a restaurant, etc.) the owners should expect to pay for music, just like they pay for electricity, gas, water, etc.

      • Wouldn’t a “Dance Concert” constitute a dramatico-musical performance and require Grand Rights, though?

        • Gordon Firemark says:

          Generally, no. “Dramatico” seems to imply that there’s some textual, scripted component beyond just the choreography. But there HAS been some controversy on this issue.

  5. Jill Neimeyer says:

    I am a high school drama teacher and want to use several recorded songs for pre-show music and possibly for scene transitions (usually about 15-20 seconds long). These songs will not be used to move the story along, but rather to set a mood and to cover the time needed for a scene change. 1) Do I need the rights to this music, and 2)is there some sort of general contract or rights that I can get so that I can choose my music fairly last minute. I don’t see knowing what music I will need until I am in the final weeks of rehearsal and setting my tech work. Do I contact ASCAP? BMI? What is appropriate in a high school setting. I usually do 2-3 of these shows during the school year.

    Thank you,
    Jill Neimeyer

  6. GORD says:

    HI THERE, MY QUESTION; AS AN AUTHOR OF A STORY(JUKEBOX
    MUSICAL), IS IT MY RESPONSIBILITY TO NEGOTIATE GRAND RIGHTS
    FOR THE USE OF MUSIC/LYRICS PRIOR TO COPYRIGHT OF THE
    STORY ITSELF, OR DOES THE PRODUCTION COMPANY INTERESTED
    IN PRODUCING THE PRODUCTION DO THIS? I GUESS WHAT I AM
    LOOKING FOR IS DIRECTION AS TO HOW TO START ONCE THE STORY
    HAS BEEN WRITTEN…..THANX

  7. SDM says:

    Hi There,

    I am teaching a several Musical Theater classes at a small dance school in Georgia. They are planning to use the character ‘Annie’ for an upcoming show and to perform song’s from the musical, as well as possibly put in additional excerpts from the show.

    The musical Annie in it’s entirety will not be performed but many facets of the show will be used…

    It’s kind of a musical review with a storyline. So here is my question…Does the Director still need to purchase the rights to Annie in order to do this or is that only required if they are performing the show in it’s entirety?

    Thanks,
    SDM

  8. Impressed says:

    Gordon – I just want to commend you for providing this information to the public. I work for a publisher and handle licensing for stage and dance. Many new clients are uninformed about the process for acquiring music rights. Here you’re providing clear information in an easy-to-understand way. This is helpful to new writer/producer/choreographers, and also, to the publishers with whom they must work!

  9. Sean Grennan says:

    Hello there. I’m a playwright working on a “juke box” type musical. I understand that I’ll need to obtain “Grand Rights” for it. Can you tell me what the typical percentage of the gross is for these rights?

  10. Matthew says:

    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?

  11. Kristey says:

    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?

  12. Julia Morizawa says:

    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!!!

  13. Julia Morizawa says:

    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!

  14. Cynthia A. Stevens says:

    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.

  15. Elizabeth says:

    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?

  16. 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!

  17. Hildegard Wirthner says:

    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?

  18. 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.

  19. Terry Sibbitts says:

    <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?

    Terry -

    Generally speaking, the license you get from a play publishing house, is to produce the play exactly as written, with the score performed by a live orchestra, etc. I know lots of companies use recorded, or midi-sequenced music for the musicals they present, but doing so is a violation of the license agreement, which doesn’t authorize you to record the score in the first place. The authors and publishers are concerned about losing control of the works. Once there’s a good recording out there, after all, who’ll need to rent the books from the publisher?

    So, they limit the scope of license very carefully. Any recording of any part of the show, without the authors’ express, written consent is copyright infringement.

    Now… if you’re bound and determined to record the tracks… well, everything is negotiable… but you’d need to contact the authors directly. The publisher probably doesn’t even have the authority to grant such a license.

  20. Bill Manning says:

    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.

    Good Question. This will vary from routine to routine, but the more it’s integrated into the routine, the more I think it probably DOES require a grand-rights license.

    -Gordon Firemark

  21. John Composer says:

    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?

    They’re probably relying on their ASCAP and BMI licenses. But for a Ballet or Theatrical Production where your music is THE SCORE, they need a grand-rights license. Unless they dealt directly with your Publisher, they’d have had to obtain a license from you.</p>

    This is a situation where you need to get a lawyer to represent you. A Cease and Desist Letter is the best bet. Importantly, if you fail to act on these infringements when they come to your attention, you may lose your right to do anything about them later on. There are statutes of limitations and other legal doctrines at work, that may actually BAR you from protecting your rights, after passage of time.

    -Gordon Firemark

  22. 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.

  23. Kenneth Ashford says:

    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….

  24. 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

  25. Ross Travis says:

    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?

  26. [...] 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 [...]

  27. 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.

  28. 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! ;-)

  29. 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.

  30. 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.

  31. Julia -

    These comments aren’t the place for specific legal advice, so I’ve sent you a private email with some more information.

  32. I think doing what you propose would violate the terms of the license to perform the musical. If the publisher WERE to grant permission for use of recorded music, I daresay, they’d want you to use tracks that they provide.

    The use of karaoke CDs for such a show WOULD require special licenses, but only after you’ve cleared up the rights with the publisher of the play.

  33. Yes, you DO need to obtain a license. Presenting the show otherwise would amount to copyright infringement.

  34. Sean,

    The traditional royalty structure for a musical is that the authors get an aggregate of 6% of Gross Weekly Box Office Receipts. Usually, this is divided 2% for each of the Book, Music and Lyrics. Since pre-existing songs account for Music and Lyrics, they command a box-office royalty of 4%.

    BUT, many music publishers demand more, and the costs of a production can go very high, very quickly. That’s why most so-called jukebox musicals feature songs from one songwriter/artist.

    Jersey Boys: 4 seasons
    Mama Mia!: Abba
    Smokey Joes: Lieber & Stoller

    Another issue is that music publishers may be wary of giving you long-term licenses until the show has some “legs”, but you need those long term licenses in order to pull everything together and build up the show….

    Help from an attorney who knows this stuff can be useful. Feel free to call me if you need it.

  35. I’ll answer in greater detail by email, but the short answer is that you DO need to obtain rights for what you’re doing, but getting production rights to “Annie” will NOT permit what you’re proposing.

    Typically, a production license permits only a full, unedited production of the show AS WRITTEN (i.e., no cuts, or changes whatsoever)., So, You’ll need to contact the publisher and negotiate a special license for the “Grand Rights” to the songs being used. Also, if you’re using the CHARACTER of Little Orphan Annie, you will have to obtain those rights as well.

  36. I note that you may be inquiring from outside the US… and must remind you that this blog addresses US Theatre Law only.

    If you’re incorporating pre-existing songs into your show, you must obtain the rights from the songwriters/publishers. While You MIGHT be able to find a producer/production company willing to do the legwork, it’ll be much harder for you to sell the show if you don’t have the music rights in place.

    You CAN register the copyright in the “book” portion of the show, but only those portions that are original with you can be protected.

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