Music Use in Theatre

Copyright Musings About Copyright Music Use In Plays

by Kenny Chan

Got the rights to the play?
Yup.

And you have your director?
Absolutely!

Actors?
Of course!

What about that Stage Manager person?
Uh huh!

Permission to use copyright music in the play?
… WHAT?!?

Music is an integral part of a play.  We use music to establish a mood, provide background noise, fill that dead air during those scene changes and many other things. You probably never notice it, but practically all of the shows that we watch use music, live or recorded, in some capacity.  Unfortunately, we tend to forget that most of the music we use, like most of the plays we put on, is protected by copyright and what's more, we often forget to obtain permission from the copyright owner before we use it.  And the process to obtain permission to use copyright protected musical works is often tedious and time consuming, which may be another reason why so many people “forget” to obtain the rights to the music they use.

Copyright applies to the original expression of an idea in works such as songs, plays, novels, magazine articles and computer programs.  It gives the copyright owner the sole right to produce or reproduce and use the copyright material in any number of ways they want.  In Canada, any original work created is automatically protected by copyright.   The creator of a work is not necessarily always the owner of the copyright.  Copyrights can be transferred or licensed to other people, and most published artists will transfer their rights to their publishers and/or agents.

The Canadian Copyright Act, federal legislation established in 1921, is an act that protects copyright owners from other people copying their original work without permission.  And according to the Canadian Copyright Act, any public performance of copyright material requires permission to be obtained in advance.   It’s important that you acquire the rights for the music you use as songwriters and lyricists primarily make their living through royalties.

That’s all wonderful… but how does one actually go about getting permission to use copyright music in our shows?

To get permission to use copyright protected music in a show, you have to first examine how the music will be used in the production.  If the play that you’re putting on is actually a musical, like Miss Saigon or South Pacific, then you probably don’t have to specifically request permission to use the music.  The rights and royalties you pay for the play itself will often cover the use and performance of the music.  The right to perform complete musicals, operas and ballets are referred to in the copyright world as, Grand Rights.

Now, what if you’re using music for pre-show, intermission and post-show?  The rights you need to obtain to use the music for the aforementioned purposes are known as Small Rights or Performing Rights.  Performing Rights are the rights to perform non-dramatic musical works in a public performance.  The Society of Composers, Authors and Music Publishers of Canada, otherwise known as SOCAN administers Performing Rights through licences and tariffs, a listing of which is available by contacting SOCAN.  The use of music in pre-show, intermission and post-show, which falls under Tariff 15A, isn’t licensed on a “per song” basis.  Rather, it’s calculated by the size of the facility in which the music will be playing to exactly $1.18 per square meter per year.   This tariff allows the owners of the facility to play any song in SOCAN’s repertoire as background music.  Under the Copyright Act, owners of facilities can be found liable for copyright infringement if SOCAN licences are not obtained in advance for events with music. It’s the facility owner’s duty to pay for this tariff as they are the ones who are allowing the music to be played.  To find out more about SOCAN, visit their website atwww.socan.ca.

Now, this is where things get a little confusing.  SOCAN may deal with performing rights, but the rights to use copyright protected music in a show or in a musical review are not administered by SOCAN.

If you are planning on adding music to your show which isn’t specifically written into the script, wanting to perform a song live, or to create a parody of a song or change/modify an existing song, you’ll have to seek permission from the individual copyright holders of the songs.  This also includes background and ‘mood music,” music for scene changes, curtain calls, or when you’re creating a musical revue or a cabaret night.  And even if the song is specifically written and indicated in the script, the royalties of the play may not cover the rights for the song.  Check to see if the play covers the right to use the music when you apply for the rights to the play.

Unfortunately, there’s no simple way of going about obtaining the rights to a song used in your play.  First of all, give yourself plenty of time to go through the process of obtaining the rights to use the music.  Secondly, always have a back up plan if you’re unsuccessful in obtaining the rights.

Begin by checking out the CD cover information for the following information:  The album title, the name of the song, the artist(s) who performed it, the composer and lyricist, the record company and their mailing address and phone number.

If that information is unavailable, do some research online to find out the relevant information.  A list of resource websites and suggested reading is available at the end of the article.

Generally, there will be some basic information that the record company and/or publisher will need from you.  Some of the commonly requested facts asked for are:  the song title, the show you are producing, who is producing the show, the exact timing of how much you want to use, and how many other songs will be used in the show.  This list is only a basic idea of what type of information the publisher may want.   Some publishers or copyright owners may even request that you acknowledge the music that you use in your programs.  It’s always best to find out the specific requirements from each publisher.

Locating a copyright owner can be extremely difficult.  If, for some reason, you absolutely cannot find or contact the copyright holders of the song, you can contact The Canadian Copyright Licensing Agency (Access ©) to help you find the information.  If Access © is unable to help you, you can turn to the Copyright Board of Canada to issue you a licence on behalf of the unlocatable copyright holder.  Canada’s Copyright Act authorizes the Copyright Board to act on behalf of unlocatable copyright owners, however, the application process to obtain rights from the Copyright Board tends to be quite lengthy and complicated.  Further information on this process can be found online at www.cb-cda.gc.ca or can be obtained from The Secretary General of the Copyright Board of Canada.

If you are successful in locating all of the copyright owners and in obtaining the rights to use the music, you may want to compile the songs onto a single CD so that your sound technician doesn’t have to constantly change CDs or tapes.  Before you go ahead and copy the music onto a CD, you’ll want to contact The Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) to obtain a Mechanical licence.  CMRRA administers these Mechanical licenses that authorize the reproduction of music from CDs and cassettes.  To find out more about CMRRA and mechanical licenses, visit their website at www.cmrra.ca and request a brochure.

When is music free to be used?   Copyright protection only lasts from the day of the initial creation of the work until 50 years after the death of the final collaborator of the work.  This means that Tchaikovsky’s Sugar Plum Fairy, Tchaikovsky having been dead for much more than 50 years, is considered “Public Domain” and is free to be used.  However, this doesn’t mean that you can use any song in Public Domain without obtaining the rights or paying fees.  For example, if you wanted to use the Toronto Symphony Orchestra’s recording of the song, you would still be required to get permission from the Toronto Symphony Orchestra to use that recording.  This is because, while the song itself is in Public Domain, the specific recording of the song is protected by copyright.

The Copyright Act also states that copyright material may be used without the risk of copyright infringement for specific purposes.  This exception is called Fair Dealing and is detailed in part three of the Canadian Copyright Act.  Fair Dealing covers use of copyright protected material for research or private study, criticism or review, news reporting, reproduction and performance for educational purposes (part of the curriculum).   While you’re able to use copyright material for these purposes for free, there are many requirements that need to be met in order for Fair Dealing to come into effect.  For example, copied material must be destroyed after a specified amount of time for each specific use of the material.  For further information, check out the online version of the Canadian Copyright Act at www.cb-cda.gc.ca/.

There are many other aspects of copyright protected music use in theatre that aren’t covered in this article.  The important point that must be understood is that the music is copyright and we absolutely must obtain permission to use those songs in our shows.  To put on a production without acquiring the rights is an infringement of copyright and can lead to legal action taken against you by the copyright owners.  It doesn’t matter who you are, be you a small community theatre group or an international for-profit-mega-musical-machine:  copyright laws apply to everyone.  For your own best interest, and for the livelihood of the music makers, obey your copyright obligations, have fun and get on with the show!

THEATRE ONTARIO

401 Richmond Street West, Suite 350, Toronto, ON, M5V 3A8
Telephone: 416.408.4556 (Find an Extension) / Fax: 416.408.3402
Get Directions / Contact Us via E-Mail

OFFICE HOURS

Monday to Friday: 9 am to 5 pm
(In July and August, our hours are Monday to Thursday: 9 am to 5 pm and Friday: 9 am to 1 pm)