Music Rights for Plays and Musicals January 21, 2008
Posted by Gordon Firemark in : Theatre law, entertainment law , 6 commentsRecently, 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.
Tags: noneFiremark elected to Theatre Group’s Board January 14, 2008
Posted by Gordon Firemark in : entertainment law , add a comment
I am very pleased to announce that I’ve been elected to the Board of Directors of the nonprofit Academy for New Musical Theatre. This fine organization’s Mission is to foster the highest quality of musical theatre writing, and to advance the state of new musical theatre production.
ANMT’s roots go back 30 years to the teachings of Lehman Engel, a preeminent Broadway musical director. The Academy became a non-profit corporation in response to an ever-growing interest in the international musical theatre community. The Academy’s community includes writers of new works, and the producers, directors, choreographers, actors, and singers who make those works come alive.
The Academy’s Goals:
- Advance the future of musical theatre production by creating a large pool of writing, performing, and producing talent;
- Develop a comprehensive musical theatre curriculum;
- Cultivate an awareness of and enthusiasm for new works for young audiences; and
- Forge partnerships with local, national, and international theatre companies.
The Academy has programs with opportunities for writers, lyricists, composers, actors, singers, directors, music directors, and everyone with a love for new musical theatre.
The Academy is a registered charitable organization, and although it is supported, in part, by the Los Angeles County Board of Supervisors through the Los Angeles County Arts Commission, it’s activities are funded primarily through the tax-deductible donations of individuals who believe in our mission and goals. Please consider supporting ANMT with your donations. Please make sure the ANMT knows you heard about the organization from me!
Law and Video Podcast - hiatus extended.
Posted by Gordon Firemark in : Uncategorized , add a comment
Due to unforeseeable technical difficulties, the Law And Video Podcast holiday Hiatus continues.
Some server problems have knocked us off the air, and next week, I’ll be in Hawaii. Once I return, though, we’ll be back in the swing of things with live calls and emailed Q and A.
Thanks for your patience… and stay tuned!
Tags: noneThis Week’s Law and Video Podcast features a theatre question December 18, 2007
Posted by Gordon Firemark in : entertainment law , add a comment,On this week’s Law and Video Podcast I was asked a theatre-related music question:
Our community theater is producing a
Christmas show that will use other people’s songs.
What is the best way to find out who owns this classic
music? Many of them are religious hymns which, I
understand do not hold any copyrights. Please clear
this up?
This seems like a simple question, but it has layers.
First, if it’s just a christmas concert or pageant, where the songs are not part of telling the story… then it falls under the so-called “small” public performance rights which are administered by the Peforming Rights Societies ASCAP, BMI, and SESAC here in the US. other countries have other societies.
Now, all you need to do is contact these societies (both, unless you’re sure all the songs are in one- or the other’s catalog) (you can check that online) And obtain a basic license for your kind of performance. The fee will be based on the size of the venue, number of performances, and ticket price. Also, if it’s a nonprofit, the fee will be different than a for-profit venture.
Now, if the songs DO form an integral part of the story line of the show, we’re talking about something called “Grand Rights”, and you have to obtain written permission from each composer or publisher. Again, it’s easiest to start by visiting the ASCAP or BMI website and searching for the title of each song… that will give you the information about the publisher that administers the rights… then contact them, and negotiate a license….
OK, finally the issue about “classics” and religious hymns. First of all, there are plenty of “Classics” that are still protected by copyright. “White Christmas”, “The Christmas Song” etc., so you’d need permission for those. Also, just because something is a religious hymn, doesn’t mean it’s not protected… it really comes down to when it was written. Copyright protection lasts a long time. So each title requires some study. A good rule of thumb is that if the song was written prior to 1921, it is probably NOT protected. OTHERWISE, go through the whole analysis.
Obviously, this whole process takes time, so next year, start this process in September, OK?
Tags: noneSupport AB 1365 (Funding for the Arts) December 12, 2007
Posted by Gordon Firemark in : Law, art , add a commentI don’t usually use this forum to air my political views, but sometimes, I feel an issue is important.
California spends approximately 3 cents per capita on support for the arts. This ranks California dead last among the states. The national average spending per capita is about $1.00. California’s position is simply shameful, expecially considering that the State ranks among the largest economies in the world, with entertainment (arts) as its largest export.
The California Assembly Appropriations Committee is currently considering AB 1365, which will rectify the situation. The new law, if passed, would require that 20% of state sales and use tax revenues derived from the sales of two specific retail categories pertaining to arts, crafts and music be deposited in the State Treasury for allocation to the California Art Council.
It is estimated that the 4.75% rate of sales and use tax on works of art amounts to $166 million per year. AB 1365 would transfer 20% of this amount, or $32 million from the state’s General Fund to the California Arts Council.
This is not a new tax; it is merely a designation for the spending of dollars the state is already collecting. It only applies to the state-level sales-tax. Counties’ and Cities’ portions of sales tax revenue would not be impacted.
Why I support AB 1365
California is in its third year spending three cents per capita from the general fund on the arts. AB 1365 will provide badly needed funding for the California Arts Council and in turn, it can provide programs that serve all Californians, not just for some. California’s nonprofit arts sector alone provides $5.4 billion in economic activity annually, supporting more than 160,000 jobs and generating $300 million in local and state revenue. Increasing California’s investment in the nonprofit arts sector will create more jobs and generate more tax revenue. The nonprofit arts community that the California Arts Council has nurtured over the years is a feeder to California’s creative industry. According to the Americans for the Arts Creative Industries Report (using reliable data from Dun & Bradstreet and geo-economic analysis), California is home to 86,534 arts-related businesses that employed 426,222 people in January 2007. These are California businesses; these are California jobs. The arts attract new tourism dollars. Public support of cultural tourism plays a critical role in community revitalization as well as the surge in tourism, one of the fastest growing economic markets in the country today, with California leading the nation as the most visited state. Cultural travelers spend more money and stay longer at their destinations. These travelers spend an average of $38.05 per event in addition to the cost of admission – 75% percent more than their local counterparts – on event-related items such as meals, parking and retail sales. Local attendees spend $21.75 per person per event. Cities throughout California have revived and rebuilt their downtowns by restoring old theaters, opening new store-front galleries and concert halls, and offering festivals and art walks that bring the community together in the downtown setting. Attendance at arts events generates related commerce for local businesses such as restaurants, parking garages, hotels and retail stores. By creating cultural hubs, nonprofit arts businessess help cities define themselves, draw toruists and attract investment. Many arts organizations offer education and social service outreach programs to a variety of populations and agencies, such as: Youth at risk; homeless children; children with autism, diabetes and obesity; seniors; developmentally and physically disabled; Alzheimer’s and dementia patients; veterans with post traumatic stress disorder; hospitals and health care centers; parks and recreation centers; after school programs and underserved urban and rural communities. Since 1977 the California Arts Council (CAC) has celebrated excellence in the arts. It has encouraged widespread public participation by supporting professional artists who work in all areas of the state, helping to build strong arts organizations at the local level, assisting with the professional development of arts leaders, promoting awareness of the value of the arts and directly supporting arts programs for children. CAC programs include Artists in the Schools, Poetry Outloud, American Masterpieces, Creating Public Value Through the Arts, California Arts Day, the California Poet Laureate and My California: Journeys by Great Writers. The arts are vital to the quality of life that we are so very proud of in California. With the passage of AB 1365, the California Arts Council and its programs will make it possible to continue its significant contribution to California’s economic recovery through tourism, jobs, social services, education and arts for all.
How you can help
Please consider supporting this important bill by faxing your letters of support to:
Assemblywoman Betty Karnette (the Bill’s author) (916)319-2154
Speaker Fabian Nunez (913)19-2146
and,
Your district’s Assembly member.
You can also send your words of support electronically by visiting California Arts Advocates’ online Action Center
Tags: AB 1365, Karnette, Nunez, California, Arts
