Many theater producers seek to incorporate pre-existing musical compositions in their new stage productions. This might include the incidental or background use of a recognizable tune (e.g., two lovers listen to “Strangers In The Night” on the radio and reflect on the first time they met), the actual performance by a character of a previously published song (e.g., a heart-broken inebriate stumbles through a rendition of “Yesterday” by the Beatles), or the performance of a song in a new “catalogue” show (e.g., the cast sings and dances through “It Don’t Mean A Thing (If It Ain’t Got That Swing)” in a staged musical history of swing dancing). Some producers may conclude that they need not obtain licenses from composition owners to use a song in a live stage production, assuming that their use will be covered by a blanket license issued to the venue by performing rights societies such as ASCAP, BMI or SESAC. But this is not always the case.
When pre-existing music is incorporated on stage in a non-dramatic fashion, reliance on a blanket public performance license from ASCAP, BMI or SESAC is appropriate. However, while the performing rights societies are empowered to grant these so-called “small” performing rights, they usually do not have the authority to license “dramatic performances.” In those instances, “grand” rights must be obtained directly from the owners of the composition, usually the publisher. What constitutes a “dramatic performance” has been the subject of debate and confusion, but typically it includes the use of the composition in venues that traditionally host stage plays in such a manner as to advance a story line or plot, accompanied by pantomime, dance, stage action, sets and costumes. In a simple cabaret act or concert, for example, performers and producers can rely on blanket licenses and need not secure rights directly from the owners; but the incorporation of music in a “dramatic” context is treated differently.
Frequently, a use will fall somewhere between dramatic and non-dramatic, leaving a producer to wonder whether grand rights are necessary. Even when a producer is convinced that a use truly is incidental and non-dramatic (e.g., music piped over the speakers as the audience mills about the lobby or during intermission, a use some publishers may nevertheless argue is dramatic), it must be verified that the venue actually holds a blanket public performance license. Certain theaters may have so little “small performance” activity that a blanket license is never obtained.
In some instances dramatists and producers may opt to take their chances and seek no separate license, even if the use arguably is dramatic. Their reasons are varied, ranging from a lack of time or money, or a belief that the use is so minimal or incidental that a grand rights license is not essential, or the hope that they will “fly below the radar” because their production is so low-profile or of such a limited duration that it likely will be gone before the publisher notices. In some cases, they expect to be confronted by the publisher at some point, at which time they will either cease using the compositions in question or attempt to make a deal (risking the possibility of a claim against them for intentional infringement of copyright and subjecting them to statutory damages, among other things). In some cases, producers believe that if a good faith argument can be made that a particular use is non-dramatic, asking for rights from the owner and being rejected is worse than not asking at all, and they therefore take a calculated risk by proceeding without grand rights.
Ignoring the music-clearance issue or deferring it until a problem arises can prove to be shortsighted, particularly with regard to any music that is important for the production, and an act of infringement is never the preferred route, no matter the temptation. So, for the risk-averse who wish to secure necessary licenses and avoid potential problems, we have some suggestions:
• Identify the publishers of the compositions you wish to use. Usually they can be found by searching the Internet, and they probably will be listed on the CD or album cover in which the subject songs appear. Although you are seeking a grand rights license and not a public performance license, a visit to websites of the performing societies also can yield results.
• Make your initial request for a license as complete as possible. Most publishers will require you to send them a written request for a license. The request should specify the compositions you wish to use, the production in which you wish to use them, the venue, the context in which the compositions will be used and the duration of use.
• Ask for everything you need at once. If you are producing a Broadway production, for example, do not ask simply for rights to use the compositions on Broadway. Try to secure rights to subsequent commercial productions as well (e.g., touring productions) and even stock and amateur productions. Generally this does not entail risk as the fees would not be triggered unless the subsequent uses are made, and it will save the time and expense of going back to request further rights later; or even worse, from being asked for a higher fee than might have been requested initially because the production has achieved some success and/or the composition has become pivotal to the production. Keep in mind, however, that different publishers may control rights to your desired compositions in different countries, so this aspect may indeed have to be deferred. If you will be creating a cast album of your production and want to pay a mechanical royalty below the statutory minimum rate, this would also be a good time to make that request.
• Consider the license fee structure. The range of possibilities vary – from flat fees to percentages of weekly box office receipts or net operating profits, with all sorts of adjustment and allocation formulae. This is where you would do well to consult a general manager or attorney familiar with this area.
• Give yourself plenty of lead time. Unless your sister is president of the publisher controlling the composition rights you are seeking, your project will not be a high priority to publishers. Owners could take weeks or months to respond, or they may never respond at all.
• Be careful when promising all publishers “most favored nations.” Although they will no doubt ask to be treated no less favorably than the owners of other songs to be used in the production, if one song is particularly important or used with disproportionate frequency, you may need to reserve the right to pay a higher fee to the owner of that song without having to raise every other owner to the same level. Conversely, another song may be so incidental and fungible as to merit a lower fee than that paid for other compositions.
• Try not to go too far along with plans or expenditures around the use of a composition you have not yet “locked up” for use. It is always possible that a publisher will ask for something outrageous, or simply say “No, I don’t like your play” or “I am saving this for another play coming out soon.” Have alternatives ready in the way of backup compositions, because you may not get your first choices. On the other hand, if a composition is so vital that the play cannot proceed without it, then obviously do not engage in substantial development of the project until you have that right secured. Needless to say, if you are able to make do with compositions in the public domain and for which a license need not be obtained, you will make your life much easier. As much as we hope these guidelines are helpful, it still would be prudent to obtain expert help not only to ascertain when a grand rights license is necessary but also the best way of obtaining one and what proposed terms should be included.