Monday, December 30, 2013

Misconceptions about Using Someone Else's Music in Your Play

When it comes to using someone else's music in your play, misconceptions and convenient but dangerous rationalizations abound.  As someone who has integrated copyrighted music into plays (The Devil's Music: The Life and Blues of Bessie Smith and another that I'm working on now), I'm here to say that pretty much everything people tell you is wrong.

Misconception:  Go to the Voluteer Lawyers for the Arts and they will make a contract for you.  They have standard contracts. 
I have consulted with the Volunteer Lawyers for the Arts, and, although they are generous and well meaning, they knew no more about acquiring music rights than I already knew when I consulted them (to my disappoinment).

And, no, there is no standard contract with respect to acquiring music rights.  Each agreement is particular to the show. How many songs are you using? How many different writers of those songs are involved? Are the songs used cabaret style (meaning sung anywhere in the show for entertainment value) or are they used to advance the plot? (It makes a difference.) In a standard musical, the royalties are usually divided into three equal portions among the composer, lyricist, and librettist (script writer). Consequently, if you're writing a musical using already existing music, you may be asked to divide as much as two-thirds of the royalties among those who hold the music rights. One tries to negotiate less, of course, but this is what you may be up against.

Misconception:  You don't need to worry about rights until you're ready for production. 
You absolutely do need to concern yourself about music rights long before you go into production. Acquiring music rights can take many months, even as long as a year. Music companies and other rights holders move at a glacial pace. If you wait until the last minute to acquire rights, you risk delaying or blowing your production.  Or worse, you might find that the rights are not available. 

Misconception:  Acquiring music rights will be done by the producer. 
Acquiring music rights is up to the creators of the show, not the producers, not the director, nor the hosting theatre. When you sign a production contract, you will see in no uncertain terms that the playwright (or creators if it's a team) is responsible for acquiring all necessary rights and permissions, and, more ominously, if a lawsuit is brought against the production for violation of copyright, you (the author) are liable.

Misconception:   It's okay to use a few bars of someone else's music without getting permission.  There is no such right to use a few bars of music or any other bits of copyrighted material without the permission of the author. That is, for lack of a better way of putting it, an urban legend. It is true that it's not likely MGM is going to come after you for using two bars of "Somewhere Over the Rainbow," but you could get a cease-and-desist letter.

There is no way around it; you need to get permission when you use any material belonging to someone else, and the sooner the better. 

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