Most Broadway and off-Broadway productions require the licensing of third-party rights. Whether you are looking to turn an existing literary work into the next award-winning musical or incorporate a popular musician's song into your production, you will need to obtain these rights.
Because negotiating licensing rights can be a daunting endeavor, it is always advisable to work with an experienced entertainment attorney. A skilled theater attorney can shield you from infringement liability, while also securing a licensing agreement that advances your business goals.
How Do Copyrights Impact Theatrical Productions?
All original works immediately and automatically attain common law copyright status as soon as they are put in writing. Under the 1976 Copyright Act, the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work. Accordingly, before producing a play, musical, or other theatrical work, it is often necessary to obtain legal permission, typically in the form of paying royalties to obtain a license. The requirement applies whether you are a Broadway production, community theater, or local college.
What Theatrical Licenses Do I Need to Obtain?
Every theatrical production will require different licenses. Most plays and musicals rely on a book or written script, which is protected by copyright. In order to use the copyrighted material, the producer must license the rights from the owner(s), which may be the author or a publishing company.
Music Performance Rights
Many Broadway productions also involve music, and these rights are often the most complex. Copyright may attach to both the lyrics of the song and the performance of the song.
When pre-existing music is incorporated on stage in a non-dramatic fashion, a blanket public performance license is required. This is also referred to as a "small rights" license. These rights are typically controlled by performing rights organizations, including SESAC (Society of European Stage Authors and Composers), ASCAP (American Society of Composers, Author and Publishers), and BMI (Broadcast Music, Inc.)
For dramatic performances, a "grand" performance rights must be obtained from the owners of the composition. The terms "dramatic" or "nondramatic" are not defined under the U.S. Copyright Act. Accordingly, the line between "dramatic" and "nondramatic" performances is not always clear. However, the general rule is that a dramatic performance tends to involve using the work to tell a story or as part of a story or plot, such as in a Broadway musical.
Many productions will require other music licenses. For example, if you release a video recording of your show, and it includes a copyrighted song, you will need a synchronization license. Additionally, if you release a CD recording or digital download of your show, you will need a mechanical license.
Copyright in Set Design, Choreography, and Other Elements
Many of the other elements of a theatrical performance, such as set design, costume design, lighting design, and choreography, may also be subject to copyright protection. These types of licenses frequently come into play when producers mount regional productions and tours.
For instance, when designing a set, set designers often create design drawings, miniature models, and other materials that may be subject to copyright. Choreographers may also record dance routines using videos, photographs, dance notations, text descriptions, and other means, which may also be subject to copyright protection. That means you must secure a license before incorporating them into your production.
What Should Broadway Licensing Agreements Contain?
To minimize the risk of costly disputes, licensing agreements should clearly specify what rights are granted, what rights are reserved, and under what specific conditions the licensed content may be used. For instance, a rights agreement should specify the rights granted to producers to perform the play or musical, as well as the number of performances, dates, and venues. It should also address whether the playwright, composer, or lyricist retains ownership of the copyright in the work.
Payments may be made in a lump sum, through reoccurring royalty payments, or both. While the amounts and timing may vary, it is imperative that licensing agreements establish what contractual fees will be paid, as well as the schedule for such payments.
It is also important to note that making changes to any portion of the copyrighted material is often a copyright violation. Should you wish to alter a script or musical composition, you must generally first obtain written permission from the copyright holders.
What Happens If I Don't Get All the Proper Licenses?
Failing to obtain all of the proper licenses can spell disaster for your show. In addition to potential legal liability for copyright infringement, your production will likely be halted and you may suffer significant harm to your reputation.
Given the complexity of copyright law and the importance of negotiating a licensing agreement that protects your best interests, producers should work with an experienced Broadway attorney who fully understands the intricacies of the industry. By consulting with legal counsel at the outset of your production, you can more easily determine what licenses will be required and establish a comprehensive strategy for securing them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.