TEACHING THEATRE 1

©DON CORATHERS

SUMMER 1999Volume 10 • Number 4

Who owns the rights?Copyright, the law, and licensing the show

BY KEVIN N. SCOTT

An amateur producer once wrote to theplaywright Moss Hart, pleading that the theatrehe represented be allowed a waiver of royaltieson one of Hart’s plays. It was absolutely perfectfor the company’s needs, the man explained,except that the royalty fees exceeded theensemble’s budget. Hart replied that, if it wereup to him alone, he would be happy to say yes.“But the problem is my agent,” the playwrightadded. “I have to pay him ten percent of some-thing!”

It’s a funny story, but with a grain of truth:the “something” Hart was referring to was themoney, or royalties, he (and his agent) receivedfor licensing performance rights under a con-tract that is based on United States copyrightlaw. Almost every play, song, or musical (or ex-cerpt) that is performed in public is subject tothe payment of royalties. The only exceptionsare works that are no longer in copyright eitherbecause the period of protection has expired, orbecause the author has deliberately, or negli-gently, released the work to the public domain(see the sidebar on page 8 for more on “publicdomain”).

Whether you’re a theatre teacher who pro-duces one or ten shows a year—or an individualwho produces shows in your community in anysort of public venue, for that matter—copyrightis an issue you have to deal with. I’ve been in-volved with theatre as an actor, director, and,briefly, as an educator, for nearly thirty years. Ialso attended law school for a time, and workedas a paralegal involved in corporate litigation.Until recently, I thought I had a good grasp ofhow copyright laws work. From your years oftheatre work, you might think you do as well.Three years ago, in Oregon, I watched as a high

The Miracle Worker, atThespian Festival ’92. Will-iam Gibson's play aboutthe true story of HelenKeller was later made intoa movie. Licensing for thestage script is handled bySamuel French, Inc.

school drama teacher got into serious troublewhen he attempted an “innovative” productionof the musical How to Succeed in Business With-out Really Trying. He signed a contract, whichhe apparently did not read, that specifically pro-hibited most of the kinds of changes he made.

When a press release touting the productionmade its way to the legal department of the li-censing agency, the teacher and his principalwere rudely awakened with a very nasty letter.The incident prompted me to investigate more

2 TEACHING THEATRE

SUMMER 1999

fully how play and musical publishers interpret U.S.copyright law. My research showed me just how much of what Ithought I knew was either not quite right or totally,even dangerously, wrong. I’m going to share withyou what I found out. What I’m not doing is givinglegal advice. I am not an attorney. My goal here is toprompt some questions that you perhaps neverthought of asking and suggest some resources thatcan offer information that will answer those queriesintelligently.

If you do have access to a good copyright attor-ney, you should certainly contact him or her everytime you’re uncertain about what you can and can’tdo. On the other hand, given how difficult it is tojust raise funds to maintain a quality educational the-atre program, unless the advice is free, it’s not likelyyour school can afford to pay for the kind of counselthat’s available to a producer working on Broadwayor in the West End of London.

Unfortunately, the potential penalties for copy-right violations are the same for everybody—schooltheatre director and professional producer alike. As ateacher you should be strongly motivated by bothfinancial and ethical concerns to take every opportu-nity offered for self-education in the business andlegal matters of production. Having and using accu-rate information about copyright will not only pro-vide some protection from unnecessary financial riskfor you and your school, it will also model honor-able behavior for your students.

Copyright: what is it?Copyright means quite literally the “right to copy.” Inold English common law, it referred to the exclusiveright of the author, which expired as soon as he, oranyone else, actually made a copy or published hiswork. After that, the author’s work entered the pub-lic domain, where everyone had a right to copy it.As early as 1720 in England and 1790 in the newUnited States, statutes were enacted making copy-right more durable, so that it survived publicationfor at least a limited period. (In the sidebar on page10 is a more detailed history of copyright and therise of theatre licensing organizations.) Modern stat-utes have defined copyright as a bundle of rights be-longing exclusively to the author of a work. Thisbundle includes the rights to publish, to copy anddistribute, to adapt, to display, and to perform thework. As intellectual property, any of these rightsmay be assigned or sold by the author, or by some-one licensed to act as the author’s agent, to anotherperson or organization. U.S. and international lawhave established some serious consequences for as-suming any of these rights without permission fromthe current owner of the right, except where an ex-

Published quarterly by the Educational Theatre Association

Who owns the rights?The do’s and dont’s of copyright

by Kevin N. ScottPage 1

Look what I foundTeaching actors how to tell a story

by Bruce MillerPage 3

Hope is vitalTheatre that solves problems

by Michael RohdPage 18

News and notesJob listings, research awards, and more

Page 22

© 1999 by the Educational Theatre AssociationTEACHING THEATRE is published quarterly by the Educational Theatre Association,2343 Auburn Avenue, Cincinnati, Ohio 45219; telephone (513) 421-3900. The Educa-tional Theatre Association is a national non-profit arts service organization dedicated tothe advancement of educational theatre. It is recognized as tax-exempt under Section501(c)(3) of the Internal Revenue Code and is thus eligible to accept charitable contribu-tions.Subscriptions: TEACHING THEATRE is published for members of the Educational The-atre Association. A portion of the annual membership fee goes toward a one-year sub-scription. Library subscriptions are available for $34 per year.Change of address: Send old and new address and enclose mailing label.Manuscripts: Unsolicited manuscripts should be accompanied by a self-addressedstamped envelope.

James Palmarini, editorLaura C. Kelley, assistant editorWilliam A. Johnston, art directorKim Graham, graphics assistant

Donald A. Corathers, director of publications

Published by the Educational Theatre AssociationByron Grant, president

Bob Henrichs, vice presidentMary Martin, past president

Ronald L. Longstreth, executive directorMichael Peitz, assistant executive director

TEACHING THEATRE 3

emption, such as educational fair use (see the side-bar on page 9 for more on “fair use”), has been al-lowed by statute.

Together with contract law—which covers thebuying, selling, assignment, and licensing of intellec-tual property rights, as well as the same transactionsfor other goods and services used in production—copyright law is the basis for the legal aspects ofwhat is defined as show business.

One of the problems with becoming informedabout copyright is that there seems to be a great dealof misinformation about how plays and musicals getlicensed for production. The most fundamental thingyou need to know and remember is this: unless aproducer chooses a play in the public domain or isthe author, there will have to be a licensing agree-ment with the author, the author’s personal agent, ora royalty house/licensing agency (which may or maynot be a play publisher) acting on behalf of the au-thor. If you have a “reading edition” from a bookpublisher rather than an acting edition, the copyrightnotice page should have contact information for atleast the author’s personal agent and perhaps the li-censing agency that handles amateur rights.

Licensing a showHow a play gets from a playwright to a producerusually follows this four-step process.

1. A licensing organization (also known as a roy-alty house), either through an author or his represen-tative, licenses the right to make a work available forproduction, setting a royalty payment plan that isagreeable to both parties. The organization preparesperformance materials (which may include printingacting editions for sale) and includes the play or mu-sical in their catalogue.

2. A producer submits an application to perform aplay listed in a royalty house catalogue. Most appli-cation forms ask for the name, address, phone, andfax numbers of the producing organization, the titleof the play to be performed, the dates and numberof performances desired, the name, location, andseating capacity of the theatre, and the range ofticket prices. Letters of application should includethe same information.

3. If the rights are available for those dates andthat location, the licensing organization replies witha form of agreement and sets forth royalty terms andthe required deposit. In the case of non-musicalplays the royalty amount is usually fixed; for musi-cals the cost is usually based on a percentage (set bythe organization) of the revenue generated by theproduction.

4. The producer signs the form of agreement andreturns it to the royalty house in the allotted time,accompanied by the required deposit.

It’s important to bear in mind two things in regardto obtaining a license to perform a show:

• Just because you want to do a show doesn’tmean it’s available when you want it; royalty houseslimit the number of simultaneous productions theyallow on some shows. This might be a condition ofthe licensing agreement with the author, or becausethe availability of rental materials is limited.

• Submitting an application doesn’t obligate youor the licensing organization to anything. A contractto perform a play is created only if you have signedand returned the royalty house’s licensing agreementwithin the allotted time.

One other thing, entirely apart from copyright,having to do with contractual agreements for plays:many licensing agreements include requirements re-garding the presentation of advertising material,which are a restatement of provisions in the agency’scontracts with the authors and, in many cases, theproducers and possibly the directors of the originalproductions. These can be quite specific as to, forexample, the size of lettering used for the authors’/directors’/producers’ names in relation to that usedfor the play’s title. The contract might also requirethat very specific language about the original pro-duction be included. Don’t overlook a contract’s fineprint that might cover such details. Among otherthings, you may be required to provide the licensingagency with posters and programs for your produc-tion that will confirm whether or not you compliedwith the specifics of a contract.

The myths of copyrightSome of the biggest myths about copyright and playshave to do with what can be done with a script oncea producer has secured the rights to perform thescript. What’s most troubling about these misconcep-tions is that they appear to have credible authority,both in the standard operating procedure of manyeducational and community theatres (and even someprofessional ones), as well as many references inprint which are either ambiguous or outright wrongabout what the law is and what it allows. An ex-ample of just how long these notions have enduredcan be found in The Complete Acted Play (Appleton-Century Crofts, New York), by Allen Crafton and Jes-sica Royer, a how-to text published in 1943 on pro-ducing amateur theatre. On the question of how thedirector should approach the script Crafton andRoyer begin by prudently suggesting that he “shoulddecide to revise only when he is sure that he can im-prove, in his stage presentation, on what the authorhas written.” After a list of common revisions, theyconclude by asserting that “the director should bepermitted any change which, while respecting theaim and purpose of the play, will make for a betterstage presentation in his theater, by his actors andfor his audience.”

4 TEACHING THEATRE

Term

Life of author plus seventyyears* (or if work of corporateauthorship, the shorter of ninety-five years from publication, or120 years from creation.**)

None.

Twenty-eight years, plus couldbe renewed for forty-sevenyears, now extended by twentyyears for a total renewal of sixty-seven years. If not so renewed,now in public domain.

Twenty-eight years for first term;now automatic extension of six-ty-seven years for second term.

Life of author plus seventy years,or 12-31-2002, whichever isgreater.

Life of author plus seventy years,or 12-31-2047, whichever isgreater

The term “public domain,” and how it applies toU.S. copyright laws, is often misunderstood. In anutshell, public domain refers to any work or in-vention whose copyright or patent has expired(or which never had any such legal protection).Plays, along with other kinds of writing, can passinto public domain. But it’s possible that somepublic domain work also exists in revised, copy-right-protected versions. For instance, the U.S.edition of Samuel French’s Basic Catalogue ofPlays and Musicals notes that, though the earlyplays of George Bernard Shaw have long been inthe public domain, the playwright revised all hisearly works for inclusion in later editions of hiscollected works. These revised, definitive ver-sions, which form the basis for the current Pen-

guin anthology editions and Samuel French actingeditions, are protected by copyright and cannot beperformed legally without obtaining a license andpaying a royalty.

Trying to figure out when a work actually doespass into public domain can be confusing. Thetable below was prepared by Laura “Lolly” Gas-away, director of the Katherine R. Everett Law Li-brary and professor of law at the University ofNorth Carolina, with footnotes courtesy of Profes-sor Tom Field, Franklin Pierce Law Center, Con-cord, New Hampshire. It makes the cumulativeeffects of the Copyright Acts of 1909 and 1976, theBerne Convention Implementation Act of 1988,and the Sonny Bono Copyright Term ExtensionAct as clear as they probably can be made.

—K.N.S.

* Term of joint works is measured by life of the longest-lived author.

** Works for hire, anonymous and pseudonymous works also have this term.

*** Under the 1909 Act, works published without notice went into the public domain upon publi-

cation. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne

Convention Implementation Act, retained copyright only if, e.g., registration was made within five

years.

When work is protected by copyright and when it’s notGoing public

Date of work

Created 1-1-78 or after.

Published before 1923.

Published 1923-63.

Published 1964-77.

Created before 1-1-78 but notpublished.

Created before 1-1-78 but pub-lished between then and 12-31-2002.

Protected

When work is fixed in a tangiblemedium of expression.

In public domain.

When published with notice.***

When published with notice.

1-1-78, the effective date of the1976 Act which eliminated com-mon law copyright.

1-1-78, the effective date of the1976 Act which eliminated com-mon law copyright.

TEACHING THEATRE 5

More recently, inThe Art of Directing(Wadsworth Pub-lishing Company,Belmont, California,1985), authors JohnW. Kirk and RalphBellas explained,“The script, ofcourse, is the heartof the theatricalevent, and. . . itmust be respectedby the director. . . .Yet the theatre is acollaborative effort.No playwright, noteven Edward Albee(who demands a no-cut agreement in hisrelease statement),ought to insist thatevery word of hisplay be in the pro-duction script. . . .The realities of stagepractice require thatthe director havesome freedom withthe script.”

While the pas-sages from these two books do accurately reflectcertain production realities, they fail to address theissue of contracts and copyright. At least they do notgo as far as Junior Broadway: How to Produce Musi-cals with Children 9 to 13 (McFarland and Company,Jefferson, North Carolina, second edition, 1998), byBeverly B. Ross and Jean P. Durgin. This text sug-gests, “Under the terms of your license to performthe show, you usually have the right to omit por-tions of the book, music, and lyrics if necessary tosimplify production.” I know of no licensing agree-ment that makes such a statement. In fact, most li-censes specifically exclude the right to make anysuch changes.

“If you don’t like the script the way it is, then doanother script, or write your own,” said ChristopherGould, president of Broadway Play Publishing, Inc.“It really is the grossest violation to ‘improve’ ascript without the collaboration and approval of theauthor. Yes, there is a lot of gray area here, but Ithink it is usually pretty clear when a director over-steps his or her role and becomes what is in realityan adaptor.”

In truth, adaptation is a right that belongs tosomeone else (that you may get permission to use ifyou ask for it), and collaboration is a two-waystreet. Some authors will delight in all the different

Determining fair use

Under certain very limited circumstances—essentially in the classroom or scene studio—it is legalto make photocopies of portions of a script and to perform copyrighted material without obtainingthe permission of the owner.

Those circumstances are defined in a portion of the Copyright Act of 1976 that is generally re-ferred to as the fair use doctrine. What it says is that the “fair use of a copyrighted work. . . forpurposes such as criticism, comment, news reporting, teaching (including multiple copies forclassroom use), scholarship, or research, is not an infringement of copyright.” The law identifiesfour factors to be considered in making the determination of fair use:

“(1) The purpose and character of the use, including whether such use is of a commercial na-ture or is for non-profit educational purposes;

“(2) The nature of the copyrighted work;“(3) The amount and substantiality of the portion used relative to the copyrighted work as a

whole; and“(4) The effect of the use upon the potential market for or value of the copyrighted work.”What that means for theatre teachers, in practical terms, is that they can legally copy short

scenes and have students work on them in class without applying for permission or paying a roy-alty fee, said Craig Pospisil, director of non-professional rights for Dramatists Play Service.

The two key factors in defining this kind of fair use are educational purpose and the “amountand substantiality” test.

“It has to be a legitimate classroom setting,” Pospisil said. “You can’t have a performance in aclassroom and invite a bunch of people in and call that a class. That’s a public performance.”Similarly, making a photocopies of an entire script for distribution to your theatre classes wouldflunk the substantiality test.

“The law is a complex document,” Pospisil said. “But in this case it comes down to a commonsense judgment. If you’re copying the whole script, that’s too much. That’s a violation of copy-right. If you’re copying a scene or two or three pages and working on that material in a legitimateclassroom setting, that’s okay.” —D. C.

ways their work can be presented, and some willsue your pants off for changing a comma. Whateverthe author’s opinion, the law is on his side. In thenext section on copyright do’s and don’ts, I’ll explainspecific contractual language in regard to cuts andadaptations.

What you can and cannot doThere are some things you can do to a script, and, ofcourse, many others you can’t do. I adapted (withpermission) the following list from a set of perfor-mance regulations prepared and updated for Britain’sNational Operatic and Dramatic Association byJonathan Simon of the Really Useful Group, who isalso a member of the Performing Right Society Lim-ited, the British equivalent of the U.S. performancerights societies ASCAP, BMI, and SESAC. The list iscompletely applicable to U.S. copyright laws. TheBritish version was published in the United Kingdomtheatre newsletter NODA News North West. EditorDavid Lewis, in granting me permission to adaptthese guidelines, said that this “is one area that needsconstantly to be kept in the minds of directors, pro-ducers, and anyone else involved in running amateurtheatre.”

1. Dramatic works (plays and musicals). Nopublic performance or public reading of a copyright-

6 TEACHING THEATRE

protected play or musical play may be given, eitherin its entirety or in the form of excerpts, without alicense to perform it having been obtained in ad-vance from the copyright owner (usually through arepresentative agency in the business of licensingand collecting royalties for subsidiary performancerights, which may also be in the business of publish-ing plays). In the case of a musical play, the rights

licensed by the royalty house are referred to asgrand performing rights. The requirement to licenseexcerpts includes monologues and scenes presentedfor adjudication. It is especially important to applyearly for permission to use such excerpts, since someauthors do not allow them to be taken from someworks. For instance, Thornton Wilder’s will prohibitsthe performance of any cuttings from his plays,

A brief history of copyright and play licensing

make sure that his profit was maximized by the con-ditions of that first publication. That’s whyShakespeare was in no rush to publish his ownworks, and why theatre owners tried to prevent any-one else from publishing the plays they were pro-ducing. The fear of piracy joined with the scarcity ofpaper to establish the tradition of actors’ “sides”—sheets that contained only each actor’s lines with of-ten cryptic cues. No one saw the complete script ex-cept the author, the actor-manager, and the trustedkeeper of the promptbook. Despite all precautions,piracy was rife—scribes smuggled pen and paperinto the gallery to record the script in the Elizabethanequivalent of bootleg videos, and disgruntled actorsreconstructed from memory scripts in which they hadplayed, so the plays could be rushed into publicationand onto other stages.

A century later, during the reign of Queen Anne,the English Parliament finally decided that commonlaw copyright was not necessarily a good thing. Fear-ing the instant rush to the public domain, authorswere holding new writing back from publication,sharing it only with a trusted private circle. As a re-sult, new works of art and science were not findingtheir way to the public eye. The solution: Parliamentestablished a statute of exclusive ownership for alimited period after publication. The rule simulta-neously ensured that authors would continue toprofit after their work was published and, once theperiod of ownership expired, that the public goodwould be enriched. So, in 1720 England had its firstmodern copyright law.

After the revolt of England’s American colonies in1776, the drafters incorporated language from thatfirst English statute into the intellectual propertyclause of our Constitution. In 1790, acting upon theauthority of that clause, the new Congress passed thefirst U.S. copyright law. At that time, the limited pe-riod of ownership was fourteen years, with a pos-sible additional fourteen upon re-registration. TheCopyright Act of 1909 doubled both those periods,protecting a work for up to fifty-six years from thedate of its first publication.

The Copyright Act of 1976 and the Sonny BonoCopyright Term Extension Act of 1998 further ex-tended the limits of copyright ownership. In simplest

In Shakespeare’s time, England had common lawcopyright: the author’s exclusive right to copy anddistribute his creation lasted only until the workwas published, at which point it entered the publicdomain. There was no performance copyright—anyone with a copy of the script could perform anyplay licensed by the Lord Chamberlain. If he hopedto make money on the work, the author had to

Public domain: This 1615 edition of Thomas Kidd's The Span-ish Tragedy made the play available for production by anyonewho had a copy.

TEACHING THEATRE 7

including Our Town.2. Unstaged concerts of excerpts from musi-

cals and other music. So long as the rendition isnot dramatic (see number 4), it is always permis-sible to perform music that was not originally part ofa musical play with a license from a performancerights society such as ASCAP, BMI, and SESAC. Itis also normally permissible to perform excerpts

from musical plays with a license from a perfor-mance rights society, provided that the excerpt:

• Is not a complete act of the musical play.• Does not constitute an abridged version of the

musical play.• Is performed without any change to either mu-

sic or lyrics.• Is performed using only published or autho-

terms, between now and December 31, 2018, any-thing first published on or after January 1, 1923, isprobably protected by copyright (including revised,republished work that was originally publishedprior to 1923). The system in the United Kingdomand Europe, to which we are gradually converting,is easier to comprehend: the copyright expires sev-enty years after the death of the author.

The rise of theatrical publishersWhen the middle class in Victorian England beganto emerge, it discovered it had leisure time. Formany, amateur theatricals were a popular diversion.In 1830 an entrepreneur named Samuel French hadwhat turned out to be a brilliant and highly profit-able idea: he would license from the authors ofplays of proven popularity the rights both to pub-lish (as cheaply as possible) acting editions of thoseplays, so that each actor could have a full script towork from, and to sub-license the performing rightsfor those plays to amateur groups and provincialprofessional companies, keeping a healthy commis-sion from the royalties collected for the authors.(Or, alternatively, buy the play outright from theauthor and keep all the royalties for himself.)

By the time U.S. copyright law recognizedBrtitish copyrights, and vice versa, Samuel French’scompany had established offices in London,Toronto, and New York (and eventually Los Ange-les as well), and had the power and prestige thatallowed it to charge commissions as high as fiftypercent of the royalties on some of the plays thecompany published and licensed. By the late 1800s,it represented most of the major playwrights of theEnglish-speaking world. (Today the many authorsrepresented by Samuel French range from NeilSimon and Jane Martin to Samuel Beckett andAgatha Christie.) The company’s play publisher/li-censing agent model is almost universally followedin the field of non-musical plays. Two other playpublishers founded in the nineteenth century—Baker’s Plays (1845) and Dramatic Publishing Com-pany (1885)—are also still active, concentratingheavily on the school and community theatre mar-ket.

The licensing model for musicals was alsoshaped during the nineteenth century, beginning inthe opera houses and music publishers of Europe.

This model, used by music publishers for sym-phonic works and “grand” works such as ballets,operas, and operettas, has been adopted by mostpresent-day musical theatre licensing houses. (Musi-cals are also considered “grand” works, in which thecompositions are licensed as part of the dramaticwhole.) In his book Giuseppe Verdi and GiovanniRicordi with notes on Francesco Lucca: from Obertoto La Traviata (Garland Publishing, Inc., 1989, NewYork and London), author Luke Jensen explainedthe evolution. Giovanni Ricordi, founder of the pub-lishing house, Casa Ricordi, which became Verdi’spublisher, and later Puccini’s, began his career inthe very early years of the century as a music copy-ist for various opera houses.

Ricordi developed a rental library of manuscriptscores and orchestral parts, and became a licensingagent for performing rights of various operas beforeopening a print shop to publish piano-vocal scoresand libretti for sale. Most performance materialswere kept in the library rather than being published.The American company M. Witmark & Sons,founded in 1870, followed this almost universalpractice of having a print-for-sale and a rental li-brary division. The prominence of Witmark and theWitmark Music Library was cemented by their repre-senting Victor Herbert, the composer who was topre-World War I American operetta what Verdi wasto nineteenth-century Italian opera (except thatVerdi seemed to find better librettists). EventuallyWitmark Music Library became Tams-Witmark.

Well into the twentieth century, while Tams-Witmark did very well licensing professional andsemi-professional productions of operettas likeLehar’s perennially popular The Merry Widow, theschool portion of the market catered to by the orga-nization and its competitors mostly consisted of sim-plified versions of either Gilbert and Sullivan or Vic-tor Herbert, or “school operettas” centered aroundhistorical characters like Miles Standish, Paul Revere,or Betsy Ross. This was because, despite the won-derful popular songs, most Broadway musicals ofthe teens, twenties, and thirties were built aroundstar performers, and had books that were too sillyand/or too risqué for high school (and most com-munity theatre) standards, while European operetta,aside from its possibly more wholesome content,

Continued on next page

8 TEACHING THEATRE

rized musical arrangements.• Makes no use of any form of scenery, costume,

choreography (other than minimal movement), stag-ing, character representation, or special lighting—evenif such elements are not designed to imitate or recallany production of the musical play.

In many cases theatres, halls, and other venues(including the auditorium in many high schools) mayhave a blanket license from one or more performance

rights societies (a license to perform all the reper-toire licensed by ASCAP, BMI, and/or SESAC). Thisshould be determined beforehand and, in the ab-sence of such a license, application should be madeto the performance rights society (or societies) thatlicenses the music to be used.

The rights licensed by performance rights societ-ies are referred to as small performing rights. Anyperformance that does not fall within the above

made vocal demands beyond the perceived capacityof the average high school (and many communitytheatre) performers. Tams-Witmark’s competitors in-cluded specialty divisions of “serious” music publish-ers, companies entirely devoted to this portion of themarket, and the operetta divisions of play publisherslike Samuel French.

Until the passage of the U.S. Copyright Act of1976, “unpublished” rental parts, even those essentialto the performance with full orchestra of works thathad already passed into the public domain, such asGilbert and Sullivan operettas, were potentially pro-tected under common law copyright in perpetuity.The 1976 Act did away with common law copyrightand set a date for the expiration of copyright onworks created before 1978 but still unpublished.Even without copyright protection, the music pub-lishers/licensing houses that own and rent them canprobably continue to protect works from unautho-rized copying through “no copy” clauses in therental agreements. The point is, rental income doesnot need to stop just because royalty income is nolonger legally collectible.

Changing playersAs the middle of the twentieth century approached,changes in the theatrical marketplace helped createnew players in the publishing/licensing field. In1936, dissatisfaction with Samuel French’s policy ofcharging up to fifty percent in commissionsprompted a group of Dramatist Guild playwrightsand literary agents to form the Dramatists PlayService. The group (who included, initially, Robert E.Sherwood, George S. Kaufman, and Moss Hart, andlater, Arthur Miller and Tennessee Williams) wouldown the company as shareholders, acting as bothbuyer and seller of publication and licensing rights.Agent shareholders of Dramatists would receive apro rata share of the company’s profits based on thebusiness they brought in. To meet this competition,Samuel French began to also offer commission shar-ing for authors’ agents.

In the musical field the advent of a new genreduring World War II both powerfully influenced thecreation of new productions and revisions of olderworks for revival and created a new market for ama-teur licensing. The “musical play,” starting with the

1943 production of Rodgers and Hammerstein’sOklahoma!, integrated a strong (and basicallywholesome) serious/romantic operetta-like storylinewith a popular score. Other shows that Rodgersand Hammerstein wrote, such as Carousel andSouth Pacific, or produced, like Irving Berlin’sAnnie Get Your Gun and the 1946 revival of ShowBoat, gave pre-sold hit status to family entertain-ment not beyond the skills of the advanced com-munity or high school group. Both Tams-Witmarkand Samuel French hoped to cultivate the newmarket.

The new musical theatre field was broad enoughfor individuals with highly successful shows to li-cense for amateur production to enter the licens-ing/publishing market as well. Both Rodgers andHammerstein and Frank Loesser had already fol-lowed Irving Berlin’s example and started theirown music publishing houses, Williamson Music(now part of the Rodgers and Hammerstein Organi-zation) and Frank Music. Now they decided to cul-tivate the licensing field as well, founding, respec-tively, the Rodgers and Hammerstein TheatreLibrary in 1948, and Music Theatre International in1952. The stables of these houses include some ofthe major warhorses of amateur musical produc-tion, both those created by the founders and thoseby other authors brought in later. Meanwhile,Tams-Witmark signed other musical theatre heavy-weights such as Alan Jay Lerner and FrederickLoewe, and Cole Porter. Samuel French initiallyconcentrated on procuring Off Broadway musicalhits. Today, almost every major musical is licensedby one of these four organizations.

One of the most recent additions in the non-mu-sical category is Broadway Play Publishing, Inc.,founded in 1982 by Christopher Gould, formerhead of the musicals department at Samuel French.BPPI, now the third largest play publisher and li-censing agency in New York, is primarily commit-ted to contemporary playwrights. It represents suchwriters as Tony Kushner, Richard Nelson, and EricOvermeyer, as well as works by the ReducedShakespeare Company and George C. Wolfe.Among BPPI’s innovations are an on-line catalogand adjustable royalty fees.

—K. N. S.

TEACHING THEATRE 9

provisions cannot be subject to a performance rightssociety or “small” rights license.

3. Staged concerts and revues. Many revuesdevised and/or compiled and previously performedby professionals are available from licensing agen-cies under the same licensing conditions that applyto musical plays. If the intention is to stage (withcostumes and/or scenery and/or movement) anoriginal revue or compilation show, then if any ofthe content originates in a musical play, permission(which may or may not be forthcoming) must besought in advance from the licensing agency repre-senting the copyright owner. If the song(s) or musicconcerned are not originally from a musical play,then it is probable that their performance could becovered by a performance rights society license, solong as the performance is not to be a dramatic ren-dition of the music (see number 4). This should bechecked in advance with the performance rights so-ciety and/or the music publisher that holds thecopyright on the music. Permission to perform re-vue sketches must be obtained in advance from theauthors’ agents who, if the use is approved, will is-sue licenses upon payment of appropriate fees.

4. Dramatic rendition of music. In a chapterentitled “The Grand Rights Controversy,” the authorsof Kohn on Music Licensing state that, while manythink only in terms of “grand” and “small” perform-ing rights, the right to perform a dramatic renditionof music is distinct from either, and is licensed nei-ther through a “grand” rights licensing agency northrough a performance rights society, but directlyfrom the music publisher that holds the copyrighton the music (or the personal agent of the com-poser of an unpublished work). According to thedefining language (drafted, it is said, by OscarHammerstein II, who was an attorney as well as alibrettist), music is rendered “dramatically” if it is“woven into and carries forward [a definite] plot andits accompanying action.” These rights come intoplay when a playwright or director chooses to use apopular song (either recorded or performed live) asunderscoring or incidental music.

In some cases, arrangements have been madebetween the play licensing agencies and the com-posers involved, so that permission to perform mu-sic called for in the play is included in the license toperform the play. This is usually noted in the actingedition and in the licensing agreement. Many pub-lished scripts provide contact information for thecomposers, or their agents, for songs and incidentalmusic used in the original production. If you want to use in your production either mu-sical compositions still under copyright or copy-righted arrangements of music in the public domain,the best place to start may be the website of the Na-tional Music Publishers Association, found atwww.nmpa.org. The site provides links to the Harry

Fox Agency, Inc., a wholly owned subsidiary of theNMPA, which acts as intermediary for most memberpublishers in negotiating and collecting fees on me-chanical, synchronization, and live stage licenses. (A“mechanical” license permits you to make a record-ing of the composition, audio only. A “synchroniza-tion” license allows you to perform the compositionin “synch” with visual elements, whether for film orvideo recording, or for live stage, and must be ob-tained in conjunction with any film/TV or live stagelicense.)

The advantage to dealing with the Fox Agencywebsite is that it includes a searchable database thatincludes every piece of copyrighted music publishedby NMPA members, each with its own assigned codenumber, and downloadable, printable license appli-cation forms. The disadvantage is that, if you wish toobtain a reduced rate on the royalties, you must firstnegotiate with the publisher and obtain their authori-zation, and then submit that with the other requiredpaperwork to Fox and wait six to eight weeks forthem to process it.

If the music is to be used in the production in arecorded form, at least one other permission (androyalty fee) is probably required: either from therecord company to use an existing commercial re-cording, or a mechanical license from the music pub-lisher to make a recording especially for the produc-tion. You can check out the Fox website for thisinformation as well, including the license for anynecessary transfer of the recording to a mastersoundtrack tape.

The simplest way to avoid both the hassle of mu-sic licensing and the fear of being caught unlicensedis to limit the use of music to works in the public do-main and original music commissioned for the pro-duction. It’s prudent to have a licensing agreement inplace for the original music, just as it is a good ideato have a performance contract with the authors oforiginal plays, including students. Like anyone else,they can withdraw permission to use their material ina performance. If only such music is used, performedlive or in recordings made especially for the produc-tion, there should be no copyright worries.

5. Charity or free performances. It should beremembered that even a public performance forwhich no admission is charged, or which is for acharitable cause, still requires a license.

6. Photocopying, arrangements, and adapta-tions. The making of photocopies is restricted undercopyright law. There are “fair use” provisions al-though it is unlikely that they would apply in thecase of public performance.

If copies of scripts are required for rehearsal orperformance purposes and they are unavailable ei-ther for purchase or rental, then permission to copymust be sought from the play publisher. If copies ofmusic or songs are required for rehearsal or perfor-

10 TEACHING THEATRE

mance purposes and they are unavailable either forpurchase or rental, then permission to copy must besought from the music publisher named on the mu-sic, not the owner of the stage rights nor the perfor-mance rights society. If permission to copy isgranted, then this may be conditional upon paymentof a reproduction fee and/or an undertaking to de-liver all copies made to the publisher after use.

The licensing agreement with the licensingagency will almost certainly contain language regard-ing making no changes in the script and/or music as

provided without first obtaining written permission.Here’s a typical example of how an agreement mightread: “The granting of this license to you to performthe play is not to be construed as a right to. . . [make]changes of any kind. . . in the play including but notlimited to the deletion or interpolation of new music,lyrics or dialogue or change in the period, charactersor characterizations in the presently existing play. . . .Any violation hereof will be deemed a willful in-fringement of the copyright of the author(s) and shallautomatically terminate this license.”

Resources for copyright and licensing information

BooksThe first two books I’ve listed are particularly valu-able. The Kohn on Music Licensing text is extreme-ly expensive ($150), so you might want to check itout in the library to see if you want to make theinvestment.

Producing Theatre: A Comprehensive Legal andBusiness Guide, by Donald C. Farber (second edi-tion), Limelight Editions, New York, 1997. Thefirst chapter has a good overview of public do-main and “small” and “grand” performing rightsquestions.

Kohn on Music Licensing, by Al Kohn and BobKohn (second edition), Aspen Law and Business,New York, 1996; one volume and forms on com-puter disk; updated by supplement periodically(most recently in 1999). The part of most interestto theatre educators would most likely be chapter18, “The Grand Rights Controversy.” Chapter 14,“Synchronization Licenses,” is of more interestand application than most realize.

The Performing Arts Business Encyclopedia, byLeonard D. DuBoff, Allworth Press, New York,1996.

Media Law for Producers, by Philip Miller (thirdedition), Focal Press, Boston, 1998.

Show Business Law: Motion Pictures, Television,Video, by Peter Muller, Quorum Books, Westport,Connecticut, 1990.

Play publishers/licensing agencies

Baker’s Plays, P. O. Box 699222, Quincy,Massachusetts 02269Call: (617) 745-0805; fax (617) 745-9891E-mail: info@BakersPlays.comwww.bakersplays.com

Broadway Play Publishing, Inc., 56 East 81stStreet, New York 10028Call: (212) 772-8334; fax (212) 772-8358E-mail: bppi@broadwayplaypubl.comwww.broadwayplaypubl.com

Dramatic Publishing, 311 Washington Street,Woodstock, Illinois 60098Call: (800) 448-7469; fax (800) 334-5302E-mail: dana@dramaticpublishing.comwww.dramaticpublishing.com

Dramatists Play Service, Inc., 440 Park AvenueSouth, New York 10016Call: (212) 683-8960; fax: (212) 213-1539E-mail: postmaster@dramatists.comwww.dramatists.com

Music Theatre International, 421 West 54thStreet, New York 10019Call: (212) 541-4684; fax (212) 397-4684E-mail: licensing@mtishows.comwww.mtishows.com

Pioneer Drama Service, Inc., P.O. Box 4267,Englewood, Colorado 80155Call: (800) 333-7262; fax (303) 779-4315E-mail: orders@pioneerdrama.comwww.pioneerdrama.com

The Rodgers & Hammerstein Theatre Library,229 West 28th Street, 11th Floor, New York 10001Call: (212) 564-4000; fax (212) 268-1245E-mail: theatre@rnh.comwww.rnh.com

Samuel French, Inc., 45 West 25th Street, Depart-ment W, New York 10010Call: (212) 206-8990; fax (212) 206-1429E-mail samuelfrench@earthlink.netwww.samuelfrench.com

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Tams-Witmark Music Library, Inc., 560 LexingtonAvenue, New York 10022Call: (800) 221-7196; fax (212) 688-3232

Websites of interestWith the advent of the internet, there are innumera-ble sites that can help you better understand copy-right and licensing. I’ve listed some of the ones I’vefound most useful. No doubt there are others. TheWorld Wide Web, like the law, keeps changing.

Brown, Pinnisi & Michaels, PCwww.bpmlegal.comThis law firm in Ithaca, New York, has a good setof copyright Q&As on their site.

Dramatists Play Servicewww.dramatists.comThe Rights and Restrictions page includes three arti-cles of interest by Craig Pospisil, director of non-professional rights: “Changing the script” (copy-right), “Obtaining permission” (restrictions), and“Copy cat” (photocopying and videotaping).

The Groton, Connecticut School Districtwww.groton.k12.ct.usThis Connecticut school district features a well-orga-nized online copyright manual on its Media Tech-nology Services/Polices and Procedures page. Whileit currently has very little on copyright as it relatesto dramatic and musical performance, more revi-sions are planned for fall 1999.

Kohn on Music Licensingwww.kohnmusic.comMaintained by the authors of the book of the samename, this site calls itself “a free resource for any-one who has questions about copyright law andlicensing music.” Features include Q&A conferenceson related matters, and links to most relevant musiclicensing sites, such as ASCAP, BMI, SESAC, and theNational Music Publishers Association/Harry FoxAgency.

Lawgirl.comwww.lawgirl.comAttorney Jodi Sax works in Los Angeles in music/enter-tainment law. Her site is geared more toward artistsseeking copyright protection, but it clarifies the funda-mental things everyone needs to know.

Music Theatre Internationalwww.mtishows.comThe Customer Support FAQ page addresses several top-ics including how to obtain a performance license, whyyou can’t change details of a show, why some showsare restricted, and why videotaping is prohibited.

National Music Publishers Associationwww.nmpa.orgThe NMPA page links to the Harry Fox Agency, whichacts as the licensing intermediary for most NMPA mem-ber publishers. The site includes a searchable databaseof all copyrighted songs (including copyrighted ar-rangements of public domain materials) published bymembers, and downloadable licensing forms.

The Rodgers & Hammerstein Theatre Librarywww.rnh.com/theatre/tlnewsThe Theatre Library News page features an article onroyalties and a Q&A area that answers the followingquestions: “May we videotape our production?”, “Wepurchased our scripts years ago. Do we still need torent yours?”, and “Can we cut scenes, songs, lines ofdialogue in the scripts you have provided?”

10 Big Myths about Copyright Explainedwww.templetons.comIn his articles, Brad Templeton, the publisher of severalonline newspapers, addresses the most common mis-conceptions about copyright. Craig Pospisil of Drama-tists Play Service says, “He sets the record straight in aclear concise manner.” It’s true.

Title 17 of the United State Codehttp://lcweb.loc.gov/copyright/title17For the last word: a complete online text of U.S. copy-right law, with links to the U.S. Copyright Office andLibrary of Congress home pages.

—K. N. S.

Changes requiring written authorization rangefrom simply “cleaning up the language” to changingthe gender of roles in the play. This is especially im-portant to consider if the script requires any adapta-tion to conform to community standards of accept-able language or behavior. If the changes requiredby the community are not allowed by the copyrightholder, the producer’s only option is to select an-other play. It does not matter if “they did it that wayin the movie.” The movie producer paid a substan-tial amount of money for the film rights, which usu-

ally do include the right to make any necessarychanges.

Even what was done in recent major revivals can-not be used to justify an unauthorized departurefrom the script as provided by the licensing agency.Remember that such productions involve not only,again, a substantial amount of money, but also theactive participation of the copyright holder(s) or theirrepresentatives. Nothing is done without their con-sent. The fact that such changes have not been au-thorized for release to the licensing agency may

12 TEACHING THEATRE

mean that the persons with the authority to permithave had second thoughts after seeing the changedscript onstage.

The making of musical arrangements of copy-righted works, changing the melody or words, oradding new words all arguably constitute an adapta-tion and should be strenuously avoided.

The licensing agreement for a musical play willspecify which accompaniment option is to be used(usually either full orchestra or single piano reduc-tion, though other options may be available forsome shows). The use of any other arrangements,including recorded music or MIDI sequencing, is al-lowed only with advance written permission.

7. Audio or video recording. As explained ear-lier, in certain circumstances, it’s possible to obtain alicense to make a sound recording. However, themaking of video recordings is prohibited almostwithout exception. The license to make a video mustbe obtained from the owner of the film and TVrights to the work, plus a synchronization licensemust be obtained from the publisher(s) of all musicused in the production (again usually through theHarry Fox Agency). The owner of the film and TVrights may be a film studio or independent producerwho has purchased them from the owner of thecopyright. The Rodgers & Hammerstein Organizationis probably unique in not only having retained thefilm and TV rights to certain of its founders’ works,but also in having under the same roof the “grand”rights licensing agency and the music publisher forthose works. For this reason, amateur producers ofthose works can negotiate a “special” license whichincludes the rights to videotape the whole work inperformance, and to record the music in synchroni-zation. However, the terms of the license allow for asingle tape for archival purposes only; no copies maybe made and distributed.

One of the worst horror stories I heard while re-searching this material concerned a girls’ school inthe United Kingdom. They had videotaped their pro-duction of a popular musical play and had distrib-uted fifty copies of the tape. They had the misfor-tune to be reported to both the owner of the filmand TV rights and the music publisher, both ofwhom sought the maximum penalty for the infringe-ment of their rights.

Getting caughtHere is the most dangerous myth of all concerningcopyright: “They’ll never know what I do in my littlehigh school in the middle of nowhere and, besides,even if the publisher/licensing agency finds out, theynever go after high school and community theatresanyway.” It is more accurate to say that you rarelyhear about licensing agencies or music publishersgoing after high school theatres. It is not good publicrelations for either the publisher or the high school

to advertise the fact that it has happened, but the li-censing agencies and the music publishers have afiduciary responsibility to the authors and composersthey represent to not allow the rights of those au-thors and composers to be infringed by anyone atany level of production. If they find out about an in-fringement, they are bound to pursue it.

How are they likely to find out? There are prob-ably more ways than can be counted, but here are afew examples:

• In the Oregon case I cited earlier, the licensingagency’s first inkling of the drama teacher’s inten-tions came when a clipping of a newspaper articlefound its way to the agency’s legal department afterthe show had closed. As it turns out, this is muchworse than if it had arrived there before the showopened. Then the agency would have simply issueda “cease-and-desist” letter, and the show would havebeen canceled. The school probably would have for-feited the royalties, but not have incurred damagesfor infringement. A major claim for such damageswas what the drama director and his school districtnow found facing them. The case, as far as I know,was settled privately.

• In another Oregon case, a conservative parentattended an adjudicated competition that includedcuts from Rent, Chicago, and West Side Story. Theparent found several selections objectionable, one somuch so that he tried to have the drama director ar-rested for child abuse for allowing/encouraging thestudents to participate. (This came to nothing be-cause the students involved were over eighteen.)The incident provoked a very public debate overcontent and community standards. As it turned out,several of the selections identified in the newspaperreportage of the incident and its aftermath were be-ing performed without the permission or knowledgeof the appropriate licensing agencies.

• A student in Southern California, enthused withhis school’s recent production of Man of La Mancha,created a personal web page that included soundfiles ripped off from the original cast recording andpromoted it on musicals.net, an internet site that in-cludes resources, links, and a forum for those inter-ested in musical theatre. Compounding what was al-ready a copyright infringement, he included photosof the production that clearly showed that severalroles written as male were being played by femaleperformers.

• In numerous other instances on musicals.net, Inoted several student posts about “how we did it inour production”: Arvide Abernathy in Guys and Dollsbecoming Agatha, Pawnee Bill in Annie Get YourGun becoming Pawnee Jill, replacing “My WhiteKnight” in The Music Man with “Being in Love,” andrestoring the duet for Tommy Djilas and ZaneetaShinn the director found on the Lost in Boston al-bum. One student summed it up this way: “We just

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cut that stupid song—we followed the movie insteadof the stupid script they sent us.”

The point of all these examples is to emphasizethat you never know who is sitting in the audience,or reading an unintentionally revealing account ofyour production. So, if you do violate copyright,what is the worst that can happen? Federal copyrightlaw establishes statutory fines for each act of copy-right infringement, ranging from a minimum of $500for “innocent” infringement to a maximum of$100,000 for “willful” infringement. (This is why it isimportant to know that most licensing agreementsdefine any unauthorized changes as “willful” in-fringements.) The Federal Copyright Act extends“joint and several” liability for each infringement(meaning each individual could be held responsiblefor the whole amount) to: the members of the pro-duction staff, the student cast and crew (or their le-gal guardians), the school (acting as producer), andthe owner of the building in which the performancestake place (often the school board ordistrict).

As I mentioned at the outset of this article, unlikemost amateur producers, the licensing agencies canafford to hire highly expert attorneys, who daily

work exclusively in this area of expertise. Courts tendto look unkindly at the misappropriation of the intel-lectual property rights of others and upon those whocommit themselves to a contract without full knowl-edge of its terms. If you try to defend such a case incourt, you are most likely going to lose, and to have topay the statutory fine. This is why most of these casesnever come to court. A private, confidential settlementis made, to the advantage of the side that would al-most certainly prevail if the case did come to court. Noone not directly involved in the case ever hears aboutit, preserving the reputation of both the school and thepublisher/licensing agency. The school district some-how swallows paying for a drama director’s costly mis-take (and remembers it well when budget time rollsround), and the myths continue to live. I hope thatwhat I’ve explained here will help extinguish at leastsome of that mythology and maybe save you, yourschool, and, most of all, your students, the embarrass-ment and expense of a copyright infringement.

Kevin N. Scott lives in his native Oregon. He’s actedprofessionally in a variety of styles and media. Healso worked as a paralegal for Wendell Wilkie’s oldlaw firm.