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Acquiring Music for a "Play with Music

By Donald C. Farber

A distinction must be made between obtaining the rights for a “musical play” or for a “play with music.” The “grand” performing rights ' the rights to use music for a musical play (ie, in a live production in which the music is primary) ' can be acquired from the book writer, composer and lyricist, or from the owner if someone other than the creators owns the rights. (“Small” performing rights are for additional uses that may include record sales, radio and print rights.) A play with music, on the other hand, is a straight play, a drama, a comedy or other production in which music is used as part of the play. Because the music is needed as part of a play and is not just being performed by itself on stage, radio or television, the equivalent of a grand performing right is needed in the nature of a limited non-exclusive license. The rights to use music in a play with music are obtained in almost all instances from the music-publishing company.

Acquiring the rights to use music in a play with music can best be described as a journey with Alice through Wonderland. It usually isn't an easy chore. Some of the obvious reasons for the difficulties are:

  • A play producer starts with the concept that almost all publishers are going to insist on being treated equal and will want a “favored nations” clause, except that there are so many different ways of granting licenses for a play with music that treating all music publishers as a favored nation can have its problems. In fact, some publishers granting licenses are really not in touch with the vocabulary of this part of the business.
  • It isn't unusual for a particular song to be controlled by several publishing companies, each having its own idea about the terms of a license. This doesn't help with “favored nations.”
  • A play with music often needs the rights to more than one song, sometimes 8 or 10 or more. A song may be used in a play for 12 seconds, for 5 minutes, or for any length of time. This also doesn't help with “favored nations.”
  • A particular song may be used with a piano, with singing, without singing, with an orchestra, with an existing recording and each of the other songs may be used in different ways. Another “favored nations” complication.
  • Many publishers don't know the difference between a musical play and a play with music. If they knew the difference, they wouldn't ask for 3% (sometimes even 4%) of the gross weekly box-office receipts for small bits of a song or even full songs used in a play with music.
  • The Dramatist Guild Inc.'s “Approved Production Contract” (APC) negotiated with the League of American Theatres and Producers usually translates into 1.5% of gross weekly box-office receipts for the music and 1.5% for the lyrics. But that is what a composer and lyricist get for all of the music in a musical play, which often is 18 or 22 or 24 completed songs with lyrics, not 12 seconds of one song and 1.5 minutes of another song and maybe as much as 3 minutes of another song. In fact, there are two separate and not equal APC's, one for a musical play and one for other than a musical play, such as a dramatic play or a comedy.

Bearing in mind as a constant reminder that a play producer must treat all publishers as favored nations, it makes good sense to try to start out with a publisher that will give the producer the most favored terms. Unless a producer deals with a number of publishers licensing de-partments on a continual basis and knows how they think, there is a great deal of luck involved in selecting which one to go to first.

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