Louis E. Catron
Copyright Laws for Theatre People
COPYRIGHT FOR SOUND DESIGNERS
You’re designing sound for a dance or theatrical production and want to use recorded music. Should you simply download recordings from the net or borrow CDs from a library? Nope. Not legally. As SESAC (a performing rights organization) points out:
In order to comply with the U.S. copyright law, any establishment that plays copyrighted music is legally required to secure permission to use copyrighted music, whether in a live performance or by mechanical means. A music user can do this by securing licenses from the three performing rights organizations recognized by the U.S. Copyright Act of 1976.
“Any establishment”? BMI lists some 75 different “businesses” that certainly indicate a wide scope of copyright areas. Telephone music on hold. Theme parks. Casinos. Restaurants. RV parks. Sports. Beauty pageants. Dance studios. Yes, “any establishment” seems the correct description!
If you want to play a copyrighted song for a public theatrical performance, you need to contact the composer’s and lyricist’s representative and the publisher for permission. The internet is an excellent way to find out who the representatives are. ASCAP, BMI, and SESAC , commonly called “performing rights societies,” are the three major performing rights organizations that represent songwriters, composers, and music publishers, and they license the public performing rights for musical compositions. Their website addys are below.
Steps to obtain rights
Getting rights to use copyrighted music isn’t easy. Understand that ASCAP, BMI, and SESAC are primarily focused on major organizations that produce high revenue. We’re pretty small potatoes in their eyes and getting them to answer our questions will be time-consuming.
This is a fine location for basic information about getting rights. The first half of the site deals with script permissions. The second part is valuable for the sound designer. Rachel Durkin, manager of the performing arts center at the University of Texas, describes legalities and procedures to obtaining rights to use music in live performances.
She stresses the difficulties:
The process of obtaining rights to use music in live performance is never an easy one. Unlike obtaining the rights to produce a play, there is no central clearinghouse for music clearance. Two major pieces of advice I can offer are, one, give yourself plenty of time to go through this process and two, always have a back-up plan if you are not successful in obtaining the rights.
She also discusses college-university processes to get rights:
One of the biggest misconceptions about music rights is that if you are working at, or are a student at a college or university, the rights are already taken care of by the educational institution. This is true, but only in a limited sense. While most colleges and universities do pay a licensing fee to ASCAP and BMI, the licenses are very narrow in terms of what’s covered by that fee. What is never covered by these standard university licenses is “grand rights” which is defined as the use of music in a “dramatic setting”.** This means that if you are presenting a play or dance performance, you cannot legally use any copyright protected music without first obtaining permission.
[**However, BMI appears to have a different view. See its site.]
Sites to help you find who holds copyright for
You’ve selected the perfect musical pieces for a theatrical production or dance performance. Now you want to get copyright permission. How do you find the appropriate company? Slowly. Expect to have to search. The sites below can help you. Quite likely the pieces will be in ASCAP, BMI, or SESAC . Look in their sites or try one of the general search centers.
COPYRIGHT SEARCH CENTER
If you need to find the copyright holder of music, perhaps this guide can help you. There also are a few informational sites dealing with copyright laws.
SongFile says it has a database of over two million songs and the most complete CDs and tapes search on the Internet. It offers opportunity to view lyrics of some 62,000 songs and has a comprehensive guide to sheet music resources and artists. It has a search engine, but I found it flaky: after inserting the title, we go to a link that is supposed to give us buttons to click for “Lyrics,” “Listen,” “CDs,” “Sheet Music,” and “License.” I couldn’t get it to work. Underneath the search engine is a click for “Browser Requirements for SongFile.” That took me to a “no such page” announcement. I include it here in case it fumigates the bugs out of its system.
THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS
ASCAP has over 80,000 composers, songwriters, lyricists, and music publishers. It seeks to “protect the rights of its members by licensing and paying royalties for the public performances of their copyrighted works.” Sound designers will want to search this site to find composers or recording artists they wish to use.
BROADCAST MUSIC, INC.
BMI says it represents more than 4.5 million songs. It has a strong search engine—”HyperRepertoire Internet Database”—to help you see if BMI represents the artists you need for your sound design. Also check the small menu at the top of the page. Clicking “Businesses Using Music” will lead you to a long list and perhaps one will apply to you. The home page lists a number of activities needing licenses, but nothing for theatre. However, a bit of clicking through the FAQs leads you to “Q and A for Performing Arts Presenters” (
artsanswers.asp#3 ) which contains valuable information.
A menu on the left takes you to various internal information. If you need to find one or more musical artists, clicking “Repertory Online” leads you to a search of the SESAC data base for titles, composers, and authors.
Music in the “Public Domain” that no longer is
You may have some luck finding music you like that now is in the “Public Doman,” a legal term that refers to creative and intellectual works that no longer are copyrighted. For such music you don’t need permission, nor do you need pay royalty.
MUSIC IN THE PUBLIC DOMAIN
This site lists music for which copyrights have expired, available for your use without seeking rights (or paying royalties). It also can lead you to the “Dover Book Catalogue” where you can find re-publications of interesting old music now in the public domain. You also find sites for Music Publishers.
For further information. Sound designers may wish to explore a forum ( http://www.brooklyn.com/theatre-sound/ ) that addresses their interests. It has some 600 participants from 17 countries who frequently discuss copyright issues and other areas of sound. There are searchable archives.
INFRINGEMENT OF COPYRIGHT—
WHAT HAPPENS IF SOMEONE
USES COPYRIGHTED MATERIAL INAPPROPRIATELY
Because there is such emphasis on the rights of the copyright holder, you won’t be surprised that violating those rights can result in legal punishments that range from injunctions to fines, even to imprisonment. The following sites explain the legal process.
Playwrights have legal recourse if their plays are presented without permission or if the plays are produced in a way the authors believe violate the work. The Copyright Office (http://www.copyright.gov) spells out some steps:
A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in Federal district court. If you believe that your copyright has been infringed, consult an attorney. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.
Encarta, which we mentioned earlier ( http://encarta.msn.com/find/Concise.asp?
ti=04A06000&MSID=b963307e395511d498880008c7d9e3db ), defines infringement and explains possible legal consequences:
An infringement of a copyright is the reproduction, distribution, performance, or display of any copyrighted work without permission of the copyright owner or without a compulsory license. For example, . . . performing a play without permission would be [an infringement].
Encarta discusses the legal process:
Copyright infringements are usually dealt with in civil lawsuits in federal court. The law provides several remedies to copyright owners who prove infringement against their work. In such a case, the court may order an injunction against future infringement, which requires the infringing party to refrain from committing further violations of the copyright. The court may also order the destruction of infringing copies; reimbursement for any financial loss suffered by the copyright owner; transfer of profits made from the sale of infringing copies; and payment of specific damages, plus court costs and attorneys’ fees. If the infringement was intentional, the infringing party can be subject to criminal penalties as well, which include fines and possible imprisonment (emphasis mine) .
What are the legal repercussions of violating
The dangers of breaking the law are real. Federal copyright law establishes statutory fines for each act of copyright infringement, ranging from a minimum of $500 for “innocent” infringement to a maximum of $100,000 for “willful” infringement. Note: Most licensing agreements define any unauthorized changes as “willful” infringements.
Who runs the risk of being fined for violating
An impressively large number of people could be charged for a single violation of copyright. The Federal Copyright Act extends “joint and several” liability for each infringement. Each individual involved could be held responsible for the whole amount of the fine—the director, the theatre’s artistic director and chair, individual members of the production staff, each member of the student cast and crew (or their legal guardians), the school (acting as producer), the owner of the building in which the performances take place, and in the case of public schools, the school board or district Serious? You bet.
FACING THE FACTS:
COPYRIGHT IS THE LAW OF THE LAND…AND OF THE THEATRE
One thing should be clear from the foregoing discussions. The copyright laws say that a playwright owns his or her play with precisely the same legal certainty as a person owns a car or someone owns an apartment complex. Can you “borrow” that car without the owner’s permission for a five-week cross-country trip? Can you arbitrarily decide to “remodel” an apartment which you rent, knocking out a wall here, rearranging this door to be in that other wall, or walling off that window and cutting a new one? Of course not. When you get hauled into court, even a dream team of lawyers won’t help much.
Do directors have a right to “borrow” a play by producing it without permission of the legal copyright holder or his/her representative? Can directors “remodel” a play by shifting scenes, changing characters, deleting or adding lines, or excerpting a small scene from a whole play? No. Not legally. If directors are free to take such actions, we’re forced to believe that a car hijacker is “liberating” a car or the apartment vandal is showing “free expression.”
Myths about copyright
Urban myths are alive and well in theatre, perhaps nowhere as much as pertaining to permissions and royalty.
“If we don’t charge admission, we don’t have to get permission or pay royalty.” Wrong. Audience = performance. Performance = permission required. Most often, permission = royalty payment. I confess I don’t know why directors and producers try to rationalize what actually is stealing from the playwright. After all, in the large scheme of theatrical budgets, royalty expenses for a comedy or drama are relatively inexpensive. Some theatres spend more for cast parties.
“It was part of a class exercise.” Possibly valid—if no one but the class was present. As soon as an audience is present, it no longer is “a class exercise.” Permission from the copyright holder is required.
“No one will know if we do the play without permission.” Wrong. “No one will ever know” is, first, a defensive posture based on admitted deliberate violation. Secondly, it is incorrect. Publishers and agents take active steps to protect their property, including subscribing to clipping services that focus on finding every mention of plays in newspapers (both campus and general) and magazines. Think of this, too: Publishers have experienced copyright lawyers on retainer, but because copyright law is an unusual specialty, an infringer may have difficulty finding a local expert to defend a case.
A whimpering defense of “but I didn’t know” will get a stern lecture about “ignorance of the law is no defense.” Besides, what theatre worker can claim not to know? The copyright notification is printed clearly in the playscript.
10 BIG COPYRIGHT MYTHS EXPLAINED
Attorney Brad Templeton selects ten “myths” and debunks them. For example, his second myth is often heard by those presenting plays in, say, a Lab Theatre environment: “If I don’t charge for it, it’s not a violation.” Templeton makes the record clear:
False. Whether you charge can affect the damages awarded in court, but that’s essentially the only difference. It’s still a violation if you give it away — and there can still be heavy damages if you hurt the commercial value of the property.
For playwrights considering adapting another’s work–and for directors thinking to change a playwright’s play—his sixth myth is applicable. “If I make up my own stories, but base them on another work, my new work belongs to me.” His reply is clear:
False. Copyright law is quite explicit that the making of what are called “derivative works” — works based or derived from another copyrighted work — is the exclusive province of the owner of the original work. This is true even though the making of these new works is a highly creative process. If you write a story using settings or characters from somebody else’s work, you need that author’s permission.
For directors, the statement also is pertinent. Who can change a playwright’s work? Only the playwright. As the owner of that original work, the playwright alone has exclusive rights to make “derivative works.”
Two examples of playwrights evoking copyright
Actions by Edward Albee and Samuel Beckett
Several illustrations show the copyright law in action and illustrate the playwright’s absolute ownership. We cite two authors to represent all.
Playwright Edward Albee evoked copyright law to control productions of his plays such as Who’s Afraid of Virginia Woolf?, The American Dream, The Death of Bessie Smith, and Zoo Story. They each include this notice: “[This play] may be leased only for amateur productions at which the audience is unsegregated.” Of course we today quickly agree with that concept, even wonder why it needs to be said. Remember, however, that he wrote during a turbulent civil rights period when it was not unheard of for audiences to be segregated. The point here is an illustration of playwrights’ rights. Does Albee have a legal right to make such a demand? Absolutely. It is his play and his rights are absolute. What would happen to a producer or director who violated this stipulation? Legal actions are possible, and the copyright infringer should expect to lose the case.
Directors who claim they have a “right” to change plays ignore the law. For one example, Samuel Beckett took legal actions to prohibit a theatre from producing his Waiting for Godot with an all female cast. “Had I wished those characters to be female, I would have said so,” he said icily. The theatre was close to opening its production, but it was forced to cancel the production.
Beckett also objected to JoAnne Akalaitis’s intent to stage his Endgame in a New York subway setting in 1984. That violated his stage directions and, thereby, violated copyright law.
Equally, Edward Albee took legal action to stop a production of his Who’s Afraid of Virginia Woolf? in drag. “That is not the way I wrote it.” Again, although rehearsals were in process, the production never took place.
Copyright and stage directions
Strangely and for at best weird reasons, some directors preach that the director should cross out all stage directions before beginning to prepare the play for production. That’s a violation of copyright. Samuel Beckett was appalled when a production of his Endgame ignored his specific stage directions and instead sought to place it in a railway station. He was going to prevent the production but finally let it continue. Later, however, his estate forced the cancellation of a production of Footfalls for not following the author’s stage directions. For more discussion about stage directions, you may want to visit my page on that topic. (Link.)
Publishers-leasing agents stipulations about
unauthorized productions, changing playscripts,
regardless of whether admission is charged
Producing a play without obtaining permission—which in the case of copyrighted works almost always involves paying royalties—is theft. No matter what alibi one presents, the cold fact is clear. Refusing to pay the royalties is stealing, stealing from the playwright, stealing from the agent, stealing from the play publisher/leasing agent.
Before we select a copyrighted play to produce, we necessarily must be aware of the conditions that govern receiving permission. When we select that play, we enter into a contract. Note the following examples of stipulations in contracts of major play publishing companies that supply us scripts and arrange for legal permission to produce the play.
DRAMATISTS PLAY SERVICE
The statement from Dramatists Play Service is typical of all play publishers-leasing agents. From its home page, click “Enter,” then scroll down to “Information” and click “How to Apply for Performance Rights” (or go there directly at http://www.dramatists.com/text/anp.html ). You’ll find these warnings.
Any unauthorized performance of these plays constitutes an infringement of the copyright and a violation of the Law, with possible serious consequences for the infringer (emphasis mine). No play listed may be produced unless written application is made to, and written authorization is obtained from, Dramatists Play Service.
Authorization [to produce a play handled by Dramatists Play Service], when granted, is subject to the following conditions: (A) the title of the play may not be altered; (B) there may be no deletions, alterations or changes of any kind made to the text (emphasis mine); (C) proper authorship, and other credits required in contract, must be given in all programs and advertisements; and (D) the program must include the following statement, “Produced by special arrangement with Dramatists Play Service, Inc.”
MUSIC THEATRE INTERNATIONAL
To illustrate the conditions publishers-leasing agents place on scripts we lease from them, consider MTI’s position, typical of other companies. Click “Customer Support” (or go there directly at http://www.mtishows.com/support.htm ) and scroll down the nine points. As MTI says, “Built into each and every performance license is specific language which governs how the copyrighted work must be presented.”
Music Theatre International makes clear that scripts cannot be changed:
Some people think making “minor adjustments” to a show (such as changing the gender of a character or changing the name of a town to give it local significance) is inconsequential to its integrity, or believe they have the right to “experiment” with the authors’ intentions as an expression of their artistic vision. This is simply not the case. When you are granted a performance license, by law the show you license must be performed “as is.” You have no right to make any changes at all unless you have obtained prior written permission from us to do so (emphasis mine). Otherwise, any changes violate the authors’ rights under federal copyright law. Without prior permission from MTI, your actions will subject you to liability—not only to the authors, but also to us—for breaching the terms of your license agreement, which clearly forbid you to make any changes or deletion s.
Some theatre people profess to believe that they have a “right” to cut a show. One even hears of directing class instructors who tell their students to take a full length play and do a ten-minute scene from it. Bad education. That violates copyright law. Dramatic Publishing makes clear the process of obtaining approval, in advance, to make cuts. From its home page click FAQs and you’ll see its position:
The process of cutting a show or musical can be very simple or complicated, depending on the play you have chosen, the cuts you wish to make, and the amount of time you provide us for approval. Please remember that not all authors will allow their works to be cut. Some authors feel so strongly about presenting their show in its entirety that they will not approve cuttings of any kind, whereas other authors will approve a cutting for competition only and still others are happy to oblige cutting requests of any kind. As such, all cuttings require our written approval (emphasis mine).
Dramatic Publishing defines a cutting as whole, unedited excerpts of a show, including an act or scene(s) of a play or all of the text from one page through another page. When an approved cutting is performed, the play must be billed as “Scenes from [Play] by [Playwright]” in all promotional material generated by the producing organization. All cuttings must be licensed by Dramatic Publishing and adhere to these guidelines. Any changes made after a cutting has been approved must be approved under a separate request.
Dramatic Publishing also discusses the old canard that permission isn’t required if there is no charge for admission. This statement echoes what other publishers/leasing agents say:
A royalty must be paid every time a play is performed regardless of whether it is presented for profit and whether admission is charged. A play is performed any time it is acted before an audience.
COPYRIGHT FOR THE HIGH SCHOOL/AMATEUR THEATRE
(HIGHLY RECOMMENDED.) This is an excellent site by Kevin N. Scott. The only reservation I have is that the title is too small. These materials are not just for high schools but they also are directly relevant to college and university theatres, community theatres, regional theatres—all theatrical organizations. That aside, what he says is precisely correct, well researched, thoughtfully presented, and on target.
I urge every producer, director, artistic director, teacher, playwright, actor, and would-be director to visit this site.
One possible exception:
“Face-to-Face” Classroom Education
Under very specifically stated specific circumstances—an “educational exception”—performances are permitted without obtaining permission. The copyright code (U. S. Code XX110) allows for:
. . . performance or display of a work by instructors or pupils in the course of face-to-face teaching activities (emphasis mine) of a nonprofit educational institution, in a classroom or similar place devoted to instruction . . . .
Clearly, this exception will not permit an educational institution to avoid obtaining permission for a major, faculty-directed mainstage production; calling it “face-to-face teaching” obviously is incorrect. Nor can this exception permit a student-directed production outside of the actual class environment.
Equally clearly, it does allow certain presentations inside the classroom situation, if limited to the class instructor and members of that particular class. One thinks of examples such as members of an acting class presenting scenes for the instructor and members of that class.
In that limited environment, use of copyrighted materials “in connection with ‘teaching activities’ of the institution” is protected (Copyright Law Reports a:xx2l25).
But what if others are invited to see the activity? Says the same Law Reports, “Performances or displays for entertainment or recreational purposes are not among those protected by the exemption.”
If an “audience” is invited or permitted—once again, whether admission is charged is not a factor—there no longer is “face-to-face teaching.” Instead a “entertainment” is in progress. The spectators are not being instructed by the teacher. They are not enrolled in that particular course. Therefore getting permission is mandated.
The concept of “fair use” allows certain—not unlimited—use of copyrighted materials without permission. Easy to understand illustrations would include citation of copyrighted materials in a critical or scholarly review. It also allows parodies: a playwright could use bits of a play by, say, Beckett to poke fun. For example, in 1994 the Supreme Court ruled that a rap parody of Roy Orbison’s song, “Pretty Woman,” was a fair use, noting that the markets for the original and the “transformative” work may be different.
It is my understanding that “fair use” doctrine has little other application to theatrical production, but others may disagree.
COPYRIGHT AND FAIR USE
Stanford University Libraries provides this list of links dealing with fair use.
Described above are copyright laws that pertain to theatre. An examination of the various websites helps give details to define what can be murky questions. The core of copyright law, however, is clear: the original creator owns his or her work. We in theatre must honor that basic concept.
The examples cited regarding Edward Albee and Samuel Beckett are clear illustrations. In law, such cases are precedents. They prove the strength of the copyright law. Those precedents would be cited in a copyright infringement case.
The question of copyright law aside, what about moral and ethical responsibility? Is that a matter to be ignored because the playwright isn’t physically present? When we set out to make theatre, we work on a premise that all participants—actors, designers, director, crews—are to be treated with respect. Why should we treat the playwright differently?.
Consider, too, directors who think of themselves as “play doctors,” out to fix the play. Likely they’ve never written a play themselves, but for unfathomable reasons they feel free to repair the script. Play doctors? They have earned no license, and certainly they do not have the patient’s permission for the operation. These “doctors” are breaking firm copyright laws, which say there shall be no “substantial” modifications of a play.
Equally, directors who feel free to do a small scene from a full play are amputating arms and limbs from what had been a quite healthy body. The remains are unrecognizable. The act of radical cutting is a breach of copyright.
Link from Tim Jackson