1. 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 Avenue
New York, NY 10022
Email: jkendrick@brownraysman.com
3. “Grand” (Dramatic) Performing
Right
Definition
Working 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.
4. Dramatico-Musical Work
Definition
The term "dramatico-musical work" includes,
but is not limited to, a musical comedy,
oratorio, choral work, opera, play with
music, revue or ballet.
5. Dramatic Performances
Dramatic 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)
6. 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”)
7. 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
8. 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.
9. Performing Right Society Licensing
The principal U.S. performing rights societies,
ASCAP and BMI do NOT license dramatic
performance rights.
10. Performing Right Society Licensing
The U.S. has no society equivalent to the SACD
which licenses grand rights in France and
certain other territories.
11. 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.
12. 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.
13. 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.
14. ASCAP License Provisions
Thus, 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
15. 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;
16. ASCAP License Provisions
But, 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.
17. ASCAP License Provisions
The ASCAP license also does not include:
Any work (or part thereof) whereof the stage
presentation and singing rights are reserved.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. Performing Right Society
Licensing
U.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”
25. Performing Right Society Licensing
However, the bar/nightclub license would not
authorize a dramatized performance of
“Mack The Knife” as part of a cabaret.
26. Performing Right Society Licensing
Such 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.
27. Performing Right Society Licensing
Similarly, 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.
28. 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.
29. 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.
30. Who Controls Grand Performing
Rights?
Grand performing rights are usually
controlled by the composer, the lyricist and
the book writer, who also participates
financially.
31. 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.
32. 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
33. Who Licenses Grand Performing
Rights?
There are no set tariffs, industry standard
rates or compulsory licenses. Each license
is individually negotiated.
34. 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.
35. Publisher Involvement in Grand
Right Licensing
For operas, the composer and librettist
usually assign or license a music publisher
to license grand right performances.
36. Publisher Involvement in Grand
Right Licensing
For 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.
37. Publisher Involvement in Grand
Right Licensing
For 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.
38. Publisher Involvement in Grand
Right Licensing
However, 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.
39. Who Licenses Grand Rights in
Musical Plays?
First-class (i.e., Broadway):
Composer/lyricist/book writer
usually via their agent(s) or attorney(s)
40. 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
41. 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)
42. Who Acquires Grand Performing
Rights?
Live stage performances:
• Commercial producer
• Opera company
• Ballet company
• Venue
43. Who Acquires Grand Performing
Rights?
Broadcast and Internet performances:
• Broadcaster (network or individual stations)
• Cable or satellite program service
• Internet program service
44. Synchronization Rights in
Dramatico-Musical Works
Synchronization rights are required to record
music on the soundtrack of an audio-visual
program.
45. Who Licenses Synchronization
Rights?
There is no society in the U.S. that licenses
synchronization rights for grand right
productions.
46. Who Licenses Synchronization
Rights?
For operas and ballets, the music publisher
usually will license the synchronization
rights.
47. Who Licenses Synchronization
Rights
For musical plays, the synchronization rights
for grand right productions may be
reserved by the creators.
48. 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.
49. 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.
50. Who Licenses Synchronization
RIghts
However, 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.
52. 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.
54. Mechanical Rights
However, if the producer wishes to issue the
program on DVD or CD, a separate grant
of mechanical rights is required.
55. Mechanical Rights
The 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.
56. Mechanical Rights
There 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.
57. Mechanical Rights
Audio-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.
58. Rental (Hire) Fees
When 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.
59. U.S. Copyright Term
When 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).
60. U.S. Copyright Term
For 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.
61. U.S. Copyright Term
It is highly recommended to do a U.S.
copyright search on any work created
before 1978 before beginning production.
