By: Brandon Shelton
I received an excellent inquiry recently about music licensing for theatrical productions of plays and recitals in school and college productions. This is such a great topic, because it is probably one of the most relevant, yet least understood areas of law that apply to performance artists. The question was, in a nutshell: what are the music licensing requirements of a director/producer of school productions? To answer that question, it would be helpful to know the extent to which songs are even protectable under US copyright law. Following that explanation, the intent of this article is to provide guidance regarding the use of music in local educational play productions and recitals.
The Bundle(s) of Sticks
The first step in understanding your obligations in licensing music is to understand what you have to license in the first place. When I’m stuck in traffic unapologetically blaring No Tears Left to Cry, objectively it would appear that I’m only enjoying one thing: Ariana Grande’s song. However, there is more there than meets my ears. What I am listening to is a recording of a song written by someone (which, in the world of pop music, is unfortunately not likely to be the person in the magazine cutout hanging on the wall next to your bed). That recording in and of itself has its own set of rights that the “author” owns, which you can think of as a bundle of sticks attached to it. The reason is because copyright law grants the bundle of sticks to any person who “fixes” a “work of authorship” to any “medium.” Here, the “medium” is the digital sound recording, the “work of authorship” is the song, and it was fixed when Ariana laid down that sweet track. So, you might think, well, as long as I pay something to Ariana, I should be good! I wish it were that simple.
Without casting a judgment on who writes what in the world of pop music these days, there is a second medium that someone fixed somewhere: the composition. As a certified band dork in high school, I assume it was on some coffee stained sheet music somewhere, but if I had to wager a guess, music producers probably have much cooler ways of fixing a composition onto some medium. Bringing this conversation back to Earth: the point is that there are usually two “works of authorship” you need to consider licensing, depending on what you are relaying to your audience. One might be a specific sound recording (if you choose to play a specific recording), and the other is the composition of the song itself.
So, What About My Play?
The specific question I received about this licensing issue was: “…when I put on a production that is basically a musical review/recital, what are my legal responsibilities? I am not putting on a full production, just cherry-picking a song from Shrek, and a song or two from Anastasia, etc. Should I pay royalties for the use of one song out of context from the show?”
The short answer is: maybe (I bet you thought you were going to get a simple yes or no. Ha!). The first question you might ask yourself is: is this a public performance? One of the sticks in the bundle is the right to publicly perform the work. It is generally accepted that private performances do not require a license (I know I’d feel pretty violated if ASCAP required there to be a credit card slot in my shower if I sang along to Sunflower), but the line between a private and public performance is not always very clear. If you are putting on a small production for the singing and viewing pleasure of a few students in your classes, it’s not likely that that production would be considered a public performance, because only the people in your class performing the song are the ones permitted to attend the performance. It is generally accepted that such performances are considered “for instruction only,” and thus outside the scope of public performances.
But what if you invite parents to the class to see the progress your students have made, or to give one last performance for their parents to hear? Since this performance starts to creep outside of the “for instruction only” exception, this likely would require a public performance license.
There’s also a second embedded question in there, which is: “What if I only use a little bit of one song?” Copyright law protects the work, even if you only use some of the work, so a license is likely still needed. There are some folks out there who have had some success in simply sending a request for permission to use a song (or a limited excerpt) in an educational production, especially if it’s for a really limited production run (like a single performance). However, as a rule of thumb, it would be best to assume you might need to pay for a license.
One Last Wrinkle: Drama or No Drama?
To make things even more complex here, courts and licensing companies alike make a distinction between dramatic and non-dramatic public performances. According to ASCAP:
As a general rule a dramatic performance usually involves using the work to tell a story or as part of a story or plot. Thus, when songs are employed as part of a dramatic production – a Broadway musical such as Hamilton or in a ballet such as Twyla Tharp’s “Nine Sinatra Songs”, for example – the performances of the music are dramatic and beyond the scope of an ASCAP license. In addition, excerpts of musicals accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken, and incorporating a live or recorded performance of a song into a story or plot – even though the composition was not originally written for a musical play – would also result in a dramatic performance of the song.
By contrast, when a singer sings songs from several Broadway musicals, a medley of songs from one particular play, or a medley of unrelated songs as part of a concert, revue or cabaret show, those are “nondramatic” public performances.
See ASCAP – Common Licensing Terms Defined, available at https://www.ascap.com/help/ascap-licensing/licensing-terms-defined. This distinction is important, because it determines who you can reach out to for permission and licensing. If it is a dramatic production, then you actually have to reach out directly to the rightsholder. If it is a non-dramatic production, then it would be sufficient to license the music through the licensing companies, though you can still reach out to the rightsholders for permission to perform the songs. However, this distinction isn’t always particularly clear, so if you aren’t sure, it would be a good idea to reach out to the rightsholder directly to see what they will require for permission. Since most licensing companies such as ASCAP and BMI are non-exclusive licensors, you can always reach out to the rightsholders no matter what to seek permission.
Back to the Specific Question
Based on the question asked in this inquiry, our reader will need permission one way or another. Since it sounds like the production being put on is more or less a medley of excerpts from songs being sung in a non-dramatic fashion to parents in a final production, it would be sufficient to seek a license for public performance of a composition through a non-exclusive licensing company, such as ASCAP or BMI. However, if there is some kind of story being told on stage with your students, where the Shrek songs and such have some contribution to the story arc, then you will likely need to reach out to the rightsholders themselves for permission. In either case, reaching out to the rightsholders would probably be the better option, or at least would be a good idea, since you can compare what the rightsholder asks of you in the way of compensation versus what the non-exclusive licensing companies require. Below are some helpful links and contacts for those seeking to license performance rights related to Shrek: The Musical and Anastasia. To reach out directly to the rights holders, try calling the licensing company numbers below for their contact info.
ASCAP Phone Number: 212-621-6000
BMI Phone Number: 212-586-2000
Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.