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Intellectual Property and Dramatic Performance

Introduction

A holder of a copyright in a work of intellectual property possesses a “bundle of rights.” A party wishing to perform such a work must first obtain the necessary performance licenses. The area of performance licensing in connection with these rights can be quite confusing, as different licenses are needed from various organizations or persons depending upon the nature of the created work and the intended use of such work. It is important to distinguish a performance license in a dramatic work from a performance license in a non-dramatic work, for example, non-dramatic music performance or “small” rights licensed by performing rights societies such as ASCAP, BMI and SESAC.

A typical small rights license, for example, specifically excludes any “grand rights” to perform the work dramatically: “This license does not include . . . dramatic rights, the right to publicly perform dramatico-musical works in whole or in substantial part, the right to perform individual works in a dramatic setting or the right to perform the music licensed hereunder in any other context which may constitute an exercise of the “grand rights” therein.” Therefore, in the case of a work of intellectual property capable of being performed theatrically or adapted for dramatic performance, the “dramatic” performance right opens an avenue for licensing that is wholly distinct from the licensing of any written publication or non-dramatic performance of the work in question. In addition, the reproduction and dissemination of the actual dramatic performance of the work as captured and fixed in time by film, videotape or recording, is subject to still more separate licensing opportunities.

Dramatic or Grand Rights

The Copyright Act protects “dramatic works” but does not define the term. Over the years, courts have provided some guidance on the elements that tend to make a work a dramatic one. However, in practice, the most relevant definition of such works, at least as a starting point, is the definition provided by the performing rights agencies such as ASCAP. These agencies provided blanket licenses for performance of specified works. However these licenses expressly exclude performances of dramatic works and certain related works. As ASCAP itself admits, the line between dramatic musical works (which are not covered by its license) and non-dramatic musical works (which are covered) is not clear. Naturally, it falls to the attorneys counseling the parties to navigate this line. With the statute ostensibly silent on this issue, the starting point for the attorney is often the blanket licensing agreement. Under the blanket license, the basic unit of a dramatic performance is a “dramatico-musical” work, such as a ballet, an opera, a revue, or a play with music. (The license does not mention a play without music, but clearly performances of such dramatic works are not covered by the license). The license also expressly excludes performances of a “concert version” of a dramatico-musical work and certain dramatic performance of a musical composition from a dramatico-musical work.

Licensing of a Play or Dramatic-Musical Work

Determining whether the blanket license provides permission for a given performance is a crucial first step, because performances that are not specifically included in a blanket license from a performing rights society must be licensed from the rights holders themselves. Such grand rights licensing is typically handled by the rights holders themselves, their agents or theatrical agency organizations, such as Music Theatre International, the Rogers & Hammerstein Organization and Tams-Witmark. In most cases, the copyright holders of an individual song not originally part of a dramatico-musical work will be the music publisher of that song not the songwriter.

Distinguishing Grand Rights From Small Rights

Sometimes it may be difficult for performers, producers or performance venues to assess what sort of license may be needed in particular situations, and to distinguish between a blanket small rights license, a grand rights license, and a license to use a song in a dramatic performance. The following hypothetical scenarios may help to clarify some of the different circumstances that may arise.

Non-Dramatic Performance of a Song from a Dramatico-Musical Work

 A non-costumed cabaret singer backed up by his pianist sings If I Were A Rich Man from the dramatico-musical work Fiddler On The Roof as part of his set. Clearly, this performance would be a non-dramatic performance from a dramatico-musical work. As such the performance would not involve grand rights and thus may be covered by the venue's blanket small rights cabaret license issued by the appropriate performing rights society. The same would be true even if the singer did not limit his performance to If I Were A Rich Man and chose to sing a three-song medley from the play.

Dramatic Performance of a Song from a Dramatico-Musical Work

The same singer dons the appropriate costume of Tevye from the same Broadway show and sings If I Were A Rich Man while dancing around with similar choreography as that performed by an actor actually playing the role in a performance of the entire work. Here, it is doubtful that the small rights blanket license would be sufficient because the performance would be considered dramatic, even though the singer speaks no dialogue, and even though the song is the only one taken from that particular musical. Although the need for a separate permission directly from the rights holders for such a performance may seem burdensome, by appearing in costume and acting as Tevye, the singer is no longer just singing the song, but dramatically personifying a character as well.

Dramatic Performance of a Song Not Taken from a Dramatico-Musical Work and Not Used as Part of a Story or Plot

Suppose the same singer performs Jimmy Buffet's Margaritaville, wearing a whimsical island costume suggesting the words and ambiance of the song while dancing around the stage. Here, assuming that the performance is not woven into a plot or used as part of a revue telling a story, a small rights blanket cabaret license may be adequate, even though the singer was in costume, because Margaritaville is not originally from a dramatico-musical work.

Dramatic Performance of a Song Not Taken from a Dramatico-Musical Work and Used as Part of a Story or Plot

The Margaritaville performance is a scene from a new revue about life in Key West. Here the performance would be considered dramatic and thus, the blanket small rights license would be insufficient. The author or producer of that story with music would need clearance from the copyright holder of the song, usually the music publisher but sometimes the composer, permitting use of the song in a dramatic performance in such a derivative work or adaptation.

Fair Use of a Dramatico-Musical Work

A seventh grade music teacher purchases a script or score of the dramatico-musical work Annie just to read it, or play the songs on his or her piano at home, or even in the classroom as accompaniment for the class to sing various songs or act out various scenes. In this scenario, arguably under a fair use theory, such usage would require no performance license at all.

Performance of a Dramatico-Musical Work

However, should that teacher decide to stage an abbreviated dramatic performance of a few scenes from Annie in the school auditorium and invite parents and friends, a grand rights performance license be required. Further, the teacher would need specific permission from the rights holders/authors to cut even one scene from the original musical work, since the rights holders also retain the exclusive rights to modify their own creation.

Performance of a Concert with Many Songs from the Same Dramatico-Musical Work

The local high school glee club decides to perform as its annual spring show open to the public, a concert of twelve songs from West Side Story in the order that the songs appear in the musical. Since the club has no budget for costumes or props and does not have the time to learn any dialogue, its blanket school small rights performance license will not be sufficient. Such a concert performance of so many songs in sequence from a dramatico-musical work tells the story of the musical and has been held to be a grand right which must be separately licensed by the author/rights holders or their agents.

Performance of Assorted Songs from Several Different Dramatico-Musical Works in a Revue with Costume and Choreography, or as the Music for a Newly Created Play

The same high school decides to stage instead a Best of Broadway revue, integrating one well-known song from each chosen show, accompanied with the appropriate costumes and relevant props. Once again, a blanket school small rights performance license will not be sufficient to clear the rights for what is, in fact, a grand rights performance. The school will also be equally unauthorized an unlicensed if it chooses to take assorted songs, whether originally from dramatico-musical works or not, and weave them into a new musical story line of its own creation, without the prior approval of the rights holders of each song.