Ten Reasons to Not Use Unlicensed Music In Theater

2011-02-26T00:54:14.000Z

Ten Reasons to Not Use Unlicensed Music In Theater

Recently, I started a small music publishing business. It’s a unique model. We don’t try to sell music to producers of commercials, television and video games. We sell to live theaters that need “music cues” as incidental music for their productions, filling in a gap in rights-cleared music that nobody else seemed willing or ready to tackle. I had a slight advantage, since my husband has hours and hours of music he has written for all sorts of shows, and owns all the rights.

The truth that is seldom voiced is this: If a theater, any theater, from school play to Broadway, uses music they have downloaded or pulled from CDs, they are violating copyright laws if they didn’t get permission to play it in public during a performance. My site provides legal performance licenses for our music. Do I bring up the issue of copyright compliance? Will they get defensive, or feel like their artistic choices are being curtailed? It’s something I thought long and hard about, and in the final analysis, my choice was to get informed about the issue, but not be the one to bring it up. I don’t want to seem to be threatening my potential customers with legal penalties in order to get their business. But the threat is already there, and a lot of them already know that, and they also know it’s wrong to use an artist’s work without permission. Once I sense people realize that I am on their side, and I am offering a tool that protects them, they start asking questions about copyright and clearance issues. In many cases, they have not been asking anyone, rather like someone with a little lump who doesn’t want to know what it is so they won’t go to a doctor.

So I’ve made myself informed. I’ve spoken with ASCAP and BMI, university compliance officers, HR professionals, theater insurance companies, theater board members, artistic and managing directors and a terrific theater and copyright attorney. I have learned why you don’t want to use unlicensed music in a theater production.

First of all, ASCAP and BMI do not cover theater performances. Even theaters or schools who pay blanket license fees for Grand Rights are not covered. Their lobby music, elevator music, even their hold music for people on the phone are covered. But when the lights go down and the curtain goes up, any incidental music used in the course of the play requires the permission of the composer, who usually has conferred some of those rights, and the responsibility to handle them, to a publisher. Even if he or she is an ASCAP composer whose music is handled by ASCAP for every other application, theater and dance performances require direct permission.

If you choose to use music that is not cleared, you are in violation of copyright law. The penalty for such a violation caps at $150,000, payable to the copyright holder—most likely the artist or the artist’s estate. So if you use three music cues, that could amount to $450,000. If you perform the play four times, the penalty could amount to $1,800,000.

If you choose to use music from a “royalty-free” site (a deceptive name, because they don’t confer performance rights) you still must use the music ‘as-is’. You can’t edit it. You can’t add a mandolin track, you can’t cut it to 14 seconds. You can’t tweak it in ProTools so it sounds like it’s being played by a child. Such changes are copyright violations and subject to the same penalties. And these sites don’t issue a Direct Performance License for specific dates.

The statute of limitations on a copyright violation is five years. So you can’t close a show and heave a sigh of relief. Sure, it’s hard to prove once you’ve ended the run, but are you sure there’s no evidence out there? What about the high school senior who played the daughter? She went to college, got her theater degree, headed to LA and decided to create a reel for her website that includes her dad’s footage of her 9th grade ballet recital and the role in your show. And the illegal music is in the footage. And the casting director for the remake of ‘Dallas’ finds her charming. It’s out there. And it’s been less than five years.

Now, most theaters consider themselves to be lawsuit-proof because they have so little money. But what if you have an endowment? A building? A big fat insurance policy? What if you are a school or a community center? A judge might nix 1.8 million dollars, but if you are in the wrong (and you are in the wrong) there is no other outcome if it is proven—there will be a judgment of some kind, awarding whatever is available to the copyright holder. Your assets are gone.

I’ve also discovered that most theaters consider themselves to be fairly safe because “It’s never happened.” I’ve searched for stories out there about theaters that have gotten caught and I have to admit, the stories are few and far between. In one case, a musician went to see a play that included his music, didn’t like the play and the next day he sent a Cease and Desist letter. That may not sound like much but they lost several nights of box office receipts while they plugged in new music and gained a very unfavorable reputation. According to several theatrical insurance agents I’ve spoken with, cases like this are resolved in a quiet settlement that involve confidentiality clauses and non-disclosure agreements. Just because you’ve never heard about it, doesn’t mean it hasn’t happened.

Theaters also seem to have an attitude of “who’s gonna know?” In this day and age? Let’s imagine. Joe Theater-Goer goes to see a play. They are using music by one of his favorites, a fairly obscure indie-pop artist. During one fairly long scene change Joe tweets to the entire twittering fan base that they should come see this show because the theater is using the music they all love. He’s not out to get anyone, he’s thrilled, he thinks it’s AWESOME! He thinks he’s helping. This is who will know.

And let’s bring this down to an individual level. What about the sound designer, production manager, director of the play? Where do they fit into all this? If a theater gets caught, they aren’t really in a position to dump the blame on one person. But if firing someone and making his or her life a living hell shows “good faith” so they can settle out of court for a reasonable amount, rather than be slammed with a heavy and public penalty, what do you suppose they would do? And by “they” I mean the board of directors who has never even met the sound guy and can be held personally liable. You, as an individual who went along with the unlicensed use, are not going to be safe in this situation. You’re just leverage.

There’s also a concept I’ve come across—that the use of music in theater without a license is okay because it’s “between us artists”. Not necessarily. What if the composer dies before the statute of limitations has run out and the estate has passed to family members who have no loyalties to your theater and bills to pay? In two infringement cases I’ve heard about the plaintiffs were 20^th Century Fox and Disney. At that level, you aren’t dealing with the artist at all. Ask permission and get it in writing.

That leads us to one final reason not to use un-cleared music in your plays. It’s wrong. It is ethically and morally wrong for someone to use an artist’s work without permission. Simple as that.

Sonya Joseph's Posts - TheatreFace

Ten Reasons to Not Use Unlicensed Music In Theater