Grand Performing Right Licensing in the United States Presented by James M. Kendrick, Esq. Partner, Brown Raysman Millstein Felder & Steiner LLP/ Acting President, European American Music Distributors LLC/Schott Music Corporation IMZ, Prague May 9, 2005 Prepared with the assistance of Alexis B. Hart, Esq.900 Third AvenueNew York, NY 10022Email: email@example.com
“Grand” (Dramatic) Performing Right DefinitionThe U.S. Copyright Law does not define “grand rights”
“Grand” (Dramatic) Performing Right DefinitionWorking definition:Rights associated with the dramatic performance of a work; that is, the use of the work to tell a story or as part of a story or plot.
Dramatico-Musical Work DefinitionThe term "dramatico-musical work" includes, but is not limited to, a musical comedy, oratorio, choral work, opera, play with music, revue or ballet.
Dramatic PerformancesDramatic performances include: – performance of an entire “dramatico-musical work” • Examples: a performance of the complete opera “Wozzeck” or the complete musical play “Candide” would be a dramatic performance)
Dramatic Performances– performance of one or more musical compositions from a “dramatico-musical work” accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken • Example: a performance of “Summertime” with costumes, sets or props or dialogue from “Porgy and Bess”)
Dramatic Performances– performance of one or more musical compositions as part of a story or plot, whether accompanied or unaccompanied by dialogue, pantomime, dance, stage action or visual representation • Example: Incorporating a performance of “Mack The Knife” into the story or plot of a dramatic work other than “The Threepenny Opera” would be a dramatic performance of the song
Dramatic Performances– performance of a concert version of a “dramatico- musical work” • Example: A performance of all the songs in “West Side Story” even without costumes or sets would be a dramatic performance.
Performing Right Society Licensing The principal U.S. performing rights societies, ASCAP and BMI do NOT license dramatic performance rights.
Performing Right Society Licensing The U.S. has no society equivalent to the SACD which licenses grand rights in France and certain other territories.
Why Do U.S. Societies Not License Grand Rights?Composers and publishers formed ASCAP (and later SESAC and BMI) because they realized it was impractical for each copyright holder to attempt to enforce the non-dramatic performing right since they could not possibly police all public performances for profit of every musical composition throughout the United States.
Why Do U.S. Societies Not License Grand Rights?However, composers and publishers believed that they could police and license performances of complete or substantial excerpts from dramatico-musical works such as operas and musical plays because of the relative infrequency of such productions and the lengthy preparation and publicity which must precede these productions.
Why Do U.S. Societies Not License Grand Rights?Therefore, composers and publishers have always reserved to themselves the right of performance of musical plays and dramatico-musical works in their entirety or any part of the same on the legitimate stage.
ASCAP License ProvisionsThus, for example, the ASCAP license does NOT cover performances of:• Oratorios, choral, operatic or dramatico- musical works (including plays with music, revues and ballets) in their entirety, or
ASCAP License Provisions• Songs or other excerpts from operas or musical plays accompanied either by words, pantomime, dance or visual representation of the work from which the music is taken;
ASCAP License ProvisionsBut, the ASCAP license does cover performances of: fragments or instrumental selections from such works may be instrumentally rendered may be instrumentally rendered without words, dialogue, costume, or scenic accessory, and unaccompanied by any stage action or visual representation (by motion picture or otherwise) of the work of which such music forms a part.
ASCAP License ProvisionsThe ASCAP license also does not include:Any work (or part thereof) whereof the stage presentation and singing rights are reserved.
U.S. Case Law– Robert Stigwood Group v. Sperber, 457 F.2d 50 (2d Cir. 1972) The performance of 20 out of 23 selections from Jesus Christ Superstar in identical sequence as copyrighted in the opera (with one exception) and in which the singers entered, exited and maintained specific roles was considered a dramatic performance and not covered by an ASCAP license even though there was no scenery, costumes or intervening dialogue.
U.S. Case Law– Rice v. American Program Bureau, 446 F.2d 685 (2d Cir. 1971) • The court held that the defendants, promoters holding an ASCAP license, could not perform the overall opera Jesus Christ Superstar under that license.
U.S. Case Law• However, defendants could present separate songs, fragments of songs, or excerpts from opera including lyrics and original words but could not accompany such songs or excerpts with words, pantomime, dance, costumes, or scenery that would lend a visual representation of work from which music was taken.
Who Controls Small Performing Rights?In musical plays, the composer and lyricist usually control the small performing rights rights without the book writer’s involvement or financial participation.
Who controls Small Performing Rights?The small rights are usually assigned to a music publisher, subject to the composer’s, lyricist’s and publisher’s memberships in a performing right society.
Who Licenses Small Performing Rights?Small performing rights are almost always licensed by a performing right society, usually on a blanket basis by which the performer pays a single price for access to the entire repertoire of the society, either for a period of time (e.g., one year) or for a specific performance.
Performing Right Society LicensingU.S. performing rights societies will license non-dramatic performances of songs from dramatic productions: – Example: a bar/nightclub license authorizes a piano-bar style non-dramatic performance of an individual song from a dramatico-musical work such as “Mack the Knife”
Performing Right Society LicensingHowever, the bar/nightclub license would not authorize a dramatized performance of “Mack The Knife” as part of a cabaret.
Performing Right Society LicensingSuch license also would not permit the performance of multiple songs from the same dramatico-musical work in a way that tells the story of that work.
Performing Right Society LicensingSimilarly, other U.S. society licenses, including the radio and television licenses, permit the non-dramatic performance of an individual song from a dramatico-musical work, but not the performance of multiple songs from the same dramatico-musical work in a way that tells the story of that work.
How Do the Societies Pay for Small Right Performances?For most live non-dramatic performances other than symphonic, educational or recital, the U.S. societies do not pay on the basis of the music performed. Rather, income from such performances is distributed according to current radio and television surveys.
How Do the Societies Pay for Small Right Performances?This means that often the composers and publishers of songs from musical plays do not get paid for live bar/restaurant and cabaret performances of their songs if those songs are not also on the current charts, because they would not reflected in the current radio and television surveys.
Who Controls Grand Performing Rights?Grand performing rights are usually controlled by the composer, the lyricist and the book writer, who also participates financially.
Who Licenses Grand Performing Rights?Grand performing rights are licensed by the :• Creators (composer/lyricist/book writer);• Publisher (if grand rights are assigned); or• Licensing agent.
Who Licenses Grand Performing Rights?Grand performing rights are licensed on an individual transaction basis.Examples:• for specific performances on specific dates,• for an open-ended run of live performances, or• a number of broadcasts or transmissions (“plays”) in a set period of time
Who Licenses Grand Performing Rights?There are no set tariffs, industry standard rates or compulsory licenses. Each license is individually negotiated.
How Are Grand Rights Royalties Paid?Grand right royalties are almost always paid directly to the creators via their licensing representative. This ensures that the creators (or their heirs) receive the royalties.
Publisher Involvement in Grand Right LicensingFor operas, the composer and librettist usually assign or license a music publisher to license grand right performances.
Publisher Involvement in Grand Right LicensingFor ballets, the composer and sometimes the scenarist, if any, also usually assign or license a music publisher to license grand right performances.However the choreographer usually does not assign his or her grand rights to the music publisher, so these rights must be cleared separately.
Publisher Involvement in Grand Right LicensingFor U.S. musical plays, the composer and lyricist usually assign the small rights to their music publisher, subject to the grant of rights to their performing right society.
Publisher Involvement in Grand Right LicensingHowever, usually neither the composer, the lyricist nor the book writer assign their grand rights to a music publisher and they are not allowed to assign them to a US performing right society.
Who Licenses Grand Rights in Musical Plays?First-class (i.e., Broadway): Composer/lyricist/book writer usually via their agent(s) or attorney(s)
Who Licenses Grand Rights in Musical Plays?Other live stage productions (e.g., professional “stock” and other productions; amateur productions):Commercial licensing agent such as Music Theatre International, Rodgers & Hammerstein Organization, or Tams- Witmark Music Library
Who Licenses Grand Rights in Musical Plays?Broadcast and motion picture rights: Like first-class live stage rights, usually licensed by Composer/Lyricist/Book writers direct (via agents or attorneys)
Who Acquires Grand Performing Rights?Live stage performances:• Commercial producer• Opera company• Ballet company• Venue
Who Acquires Grand Performing Rights?Broadcast and Internet performances:• Broadcaster (network or individual stations)• Cable or satellite program service• Internet program service
Synchronization Rights in Dramatico-Musical WorksSynchronization rights are required to record music on the soundtrack of an audio-visual program.
Who Licenses Synchronization Rights?There is no society in the U.S. that licenses synchronization rights for grand right productions.
Who Licenses Synchronization Rights?For operas and ballets, the music publisher usually will license the synchronization rights.
Who Licenses Synchronization RightsFor musical plays, the synchronization rights for grand right productions may be reserved by the creators.
Who Licenses Synchronization Rights?However, the music publisher usually will license the synchronization rights in the individual numbers, and sometimes will license the synchronization right for a production of the complete work as well, subject to the approval of the creators and any pre-existing grant of motion picture rights.
Who Licenses Synchronization Rights?As with grand performing rights, there are no set tariffs, compulsory licenses or industry standard rates. Each license is individually negotiated.
Who Licenses Synchronization RIghtsHowever, synchronization rights often are licensed on a worldwide or multi-territory basis, whereas grand performing rights often are licensed on a territory-by-territory basis.
Who Acquires Synchronization Rights?Synchronization rights are generally acquired by the program producer.
Who Acquires Synchronization Rights?The synchronization right may acquired in the same license with the grand performing right when:• the producer is the broadcaster, or• the producer wants to be able to sublicense the grand performing right to broadcasters in other territories.
Mechanical RightsThe synchronization right usually includes the right to make copies as required for broadcast or transmission purposes.
Mechanical RightsHowever, if the producer wishes to issue the program on DVD or CD, a separate grant of mechanical rights is required.
Mechanical RightsThe U.S. compulsory mechanical license does NOT apply to audio recordings of dramatic works. Mechanical rights for dramatic works are subject to individual negotiation, but often are licensed for the same statutory rate that applies to recordings of non-dramatic works.
Mechanical RightsThere is no compulsory license for audio- visual recordings of any works, dramatic or non-dramatic. Mechanical licenses for audio-visual recordings are always subject to individual negotiation.
Mechanical RightsAudio-visual mechanical licenses are often issued on a fee-per-copy fee basis (often with a rollover advance for a certain number of units) or on a flat fee buyout basis.
Rental (Hire) FeesWhen a new recording of a large work is made, the publisher usually will charge music rental (hire) fees. There are no set tariffs or industry-standard rates. Each transaction is individually negotiated, and each publisher will have its own rates and policies.
U.S. Copyright TermWhen clearing world rights, it is important to remember that if a work was published in the U.S. between 1923 and 1977, the term of copyright in most cases is 95 years from the date of first publication, regardless of the date of death of the creator (or last creator to die if more than one creator).
U.S. Copyright TermFor works created before 1978 but not copyrighted by publication or registration in the U.S. as of January 1, 1978, the term is life plus 70 years, unless the work was published before December 31, 2002, in which case the minimum term runs through December 31, 2047.
U.S. Copyright TermIt is highly recommended to do a U.S. copyright search on any work created before 1978 before beginning production.