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Ten Reasons to Not Use Unlicensed Music In Theater
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 20th 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.
Comment
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Comment by Sonya Joseph on March 1, 2011 at 9:09am -
Thanks Rich, I'm actually quite stunned at the number and scale of questions I've been getting--I've started discussions in other groups as well and yes, it is a discussion that needs to be had. I think I'll pursue starting a scheduled chat to answer questions on this issue. I don't in any way consider you to be argumentative--I am appreciative that you are asking hard questions that need answering.
As far as derivative work goes, it's very tricky. There's a lot of precedent out there going BOTH ways. Where the judge rules it's far enough away from the original work to be considered original BUT there are just as many cases where the judge rules that it is a copyright infringement. The rules don't seem to be hard and fast here which puts you on very uncertain ground.
Within the music industry, particularly in rap, there is the practice of "sampling" a piece of music. It's an extremely controversial issue right now. There was a case in 1924 where a judge decided that four bars of music was not a copyright infringement and that is used as a measuring stick by some. However the "four bars rule" is not law, it is merely precedent. Very risky. In fact the law itself reads "may be considered a breach". Which means any use, however small, should be seriously considered.
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Comment by Rich Dionne on March 1, 2011 at 8:47am -
Sonya,
Since you're talking to your attorney anyway...how does the idea of "derivative work" play into all of this? My understanding is that "fair use" comes into play when the use of a work is "derivative" of the original work. Since we might be using 15 seconds of a particular piece of music in a way that is different than its originally intended use--to comment on the music itself, and to make comment on action onstage--couldn't this be considered "derivative"?
It sounds like I'm trying to cut down your argument, but I'm not--I think this is an important discussion to have, and I'm just trying to work through what I've been given to understand...
Rich
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Comment by Sonya Joseph on February 28, 2011 at 3:22pm
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Hi Rich,
Thanks, please do check out the site.
Yes, there are a lot of misconceptions surrounding the term "Fair Use". I'm actually going to consult our fantastic entertainment and copyright attorney, Gordon Firemark on this but here's what I know off the top of my head.
1) Doesn't matter if it's non-profit, even if you aren't charging money. If it's for the public in any form it's a copyright infringement. Now a performance within the confines of a class setting is "fair use" but if the parents are invited it's a public performance. Even if no money changes hands.
2) In actual fact, if you are using a small piece of music, this is a very particular copyright infringement that holds the exact same penalty. It constitutes a change of the material and is also prohibited.
3) It is entirely up to the artist and whomever he or she has conferred rights to (publisher, manager, etc) to make decisions about how the music is marketed or not marketed and you don't have any right to enter into the equation.
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Comment by Rich Dionne on February 28, 2011 at 1:58pm
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Sonya,
First, let me say that I think the service you're providing is a fantastic idea. I haven't had a moment to check out your site, but I hope to soon. Also, it's worth saying that I'm not at all interested in "stealing" another artist's work, or finding a way to take money our of someone's pocket--all artists deserve compensation for their intellectual property.
I did want to ask about your ten points and the concept of "fair use," which I have always understood to cover the use of incidental music during a production. My understanding suggests that because
1) (Usually) the music is being used for a non-profit production
2) (Generally) the amount of music from the original track is relatively small compared to the total length of the track
3) The use of the music on stage would not generally speaking detract from the marketability of a track or album (i.e., people would not choose *not* to by an album because you've used a portion of a track in production)
the use of this music is permitted without obtaining permission.
I'm prepared to be wrong--and I'd very much like to know if I am!--but I'm not sure how or why the "fair use" exemption doesn't apply. Can you provide more information?
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Comment by Scott Bloom on February 28, 2011 at 7:46am -
Perhaps some other musicians out there will take a hint and start offering easy ways for people to use their music. Most of the time I direct or design sound for very small theatre groups who can barely afford the royalties to the shows, much less paying for music rights. I look to get personal permission from friends who have done albums, and I'm always on the lookout for musicians who can throw some chords together either live or self-recorded. Otherwise I've done underscoring with generated tones and modified free sound effects. (Thanks to Audacity and other free programs out there.) I think what you're doing is great and I wish you much success.
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Comment by Sonya Joseph on February 28, 2011 at 7:00am
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Hey Joe,
I forgot to mention that you only pay for the public performance license--NOT the music itself. So if you were to download 18 cues during your rehearsal period but in tech you found you only needed to use 10 of them, you'd only be charged for the cues that you use.
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Comment by Sonya Joseph on February 27, 2011 at 2:48pm
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Hey Joe,
So glad you liked the site. The prices are on a sliding scale based on the size and scale of the theater. For example a little community youth theater that did a show with 6 cues for three nights it was $50 total. If a big LORT house wanted the same cues for a three week run it would probably be ten times that--of course LORT houses are pretty great about hiring composers so that doesn't come up often. And if you are buying as an organization rather than as an individual, you can get a membership at $240 a year (and yes, you can make monthly payments) and you can use as much as you want and we guarantee the clearances.
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Comment by Joe Griffin on February 27, 2011 at 11:46am -
Fascinating stuff, Sonya. It's amazing how many companies either think they're covered or just don't give it any thought.
The music on the library sounds good, and the layout seems cool. Track previews are clean and easy. I'd be interested to know how much each piece costs to license.
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Comment by Sonya Joseph on February 27, 2011 at 8:51am
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Hi Scott,
Yes, membership in AACT (we love them) does offer great ASCAP discounts for pre-show music but if it's during the duration of the play, you are not covered by ASCAP and that's the arena where I'm trying to help protect people.
Regardless of how difficult it is to get clearances, it still has to be done. MUCH more difficult problems arise if you don't do it and get caught!
That being said, give www.musicues.com a listen.
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Comment by Scott Bloom on February 27, 2011 at 8:44am
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It's a very tricky issue to deal with because so many artists simply don't respond to requests for permission, or simply can't be bothered with something as trivial as a small theatre production. The other issue is with recorded music rights. Even if you get the artist's permission, there are a string of other people and/or corporations involved in the making of a recording, and they are all supposed to get royalties also.Using a published recording requires permission from both the artist and the recording company or their representative, usually ASCAP.
By the way, when it comes to pre-show or intermission lobby music, members of the AACT (American Association of Community Theatre) get huge discounts on ASCAP contracts. If a community theatre, (or even a small professional company,) doesn't have a license, they should. Membership in AACT pays for itself right there.
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