by John Gromada
Third Party Music. We all use it; it’s part of what we do as sound designers (and composers)! How we apply music in theatrical productions is an important part of the art of sound design.
Many questions have arisen recently on our Facebook page, so I thought it might be helpful to outline for people how some of us who have agents work this out in our contracts, and how to deal with it in practice.
First, it’s very important to get it in writing with your producer that it’s their responsibility, not yours, to clear music rights. If third party music is used it’s up to them to assume responsibility for use of the music in their production. Here’s some contract language that deals pretty well with this issue, and plainly lays out your responsibilities and their responsibilities:
In the event that previously published music or recorded sound materials under copyright to others are designated by Designer and approved by Producer for use in Designer’s sound design for the Play, Designer hereby agrees to provide Producer with a written inventory of all such materials, which shall include all information available to Designer pertaining to the source, title, author, artist, and copyright owner of any such materials, and upon receipt of such inventory, Producer shall assume all responsibility for obtaining necessary rights (if any) for the use of any materials listed on said inventory in Producer’s productions of the Play, and shall indemnify Designer from any claim (including reasonable attorneys’ fees and disbursements) pertaining to the use in the Play of any materials listed on said inventory, it being understood, however, that in the event that Producer is not able to obtain rights for the use of any such materials on terms satisfactory to Producer, Designer shall select alternative materials. Designer shall indemnify Producer from any claim pertaining to the use of any materials used in the Play which are not listed on said inventory, which shall be deemed original to Designer for the purposes of this agreement.
Except as expressly disclosed pursuant to the preceding paragraph, Designer hereby warrants and represents that all of the ideas and designs furnished or created by Designer in connection with the Play shall be original with Designer, and the uses thereof envisaged by this agreement shall not infringe upon any rights of any other party whatsoever. Designer hereby warrants and represents that Designer has the full right, power and authority to enter into this agreement and to grant, sell, assign and transfer all of the rights granted, sold, assigned and transferred to Producer hereunder and that all services to be rendered pursuant to this agreement will be rendered in a conscientious and businesslike manner in accordance with the reasonable direction of Producer.
Designer hereby agrees to indemnify and hold Producer, its successors, assigns, partners, agents, employees, licensees, and lessees, harmless against any and all claims, liabilities, losses, costs, expenses, damages (including reasonable attorneys’ fees and disbursements), which may be made against or incurred by Producer and such others arising out of any breach of such representations and warranties.
Producer hereby agrees to indemnify and hold Designer harmless against any and all claims, liabilities, losses, costs, expenses, damages (including reasonable attorneys’ fees and disbursements) which may be made against or incurred by Designer arising out of any claims relating to Producer’s production(s) of the Play hereunder, except in respect of any claims which arise out of Designer’s warranties and representations set forth herein.
You should always have this or something similar in your contract. In theory this should indemnify you from any damages should a copyright owner file suit for unauthorized use of the their material. I say “in theory” because in my thirty years as a sound designer I have never known anyone to be sued for using unauthorized materials in a production, either mine or anyone else’s. If there would be a lawsuit, probably everyone involved would be named, including you, but as long as you uphold your responsibility to inform the producers of what is being used, you can defend yourself by pointing to this clause in your agreement.
In my experience what happens when someone is unhappy about their music being used in a production, they have their attorney send a “cease and desist” letter, asking that the producer immediately stop using the piece in question and negotiate a fee for its use. The producer can then decide either to negotiate or ask you to try to find a new piece of music. Again in all my years this has happened maybe two or three times, at non-profit theatres who decided not to try to clear the music for use. Once it was for a tune sung by a character; the tune resembled and mocked a Woody Guthrie song- something I had not picked. Another time it was for the piece “Going to the Chapel of Love” which apparently has its own team of people scouting for unauthorized uses, and the piece was mentioned in a review.
Most non-profit theatres outside of New York or L.A. have calculated that it is not worth the effort to try to clear music rights unless they think the production is headed into a commercial run. Spending time to clear rights can be time consuming and costly itself, as serious negotiation for use rights often takes outside legal help that costs theatres money. And when theatres themselves take the time to contact music publishers to get permission, they often won’t hear back from them until after the end of the run of the show. Their inquiry about using the music might only alert a publisher and cause the the theatre to spend money that they probably could have gotten away without paying. So many theatres have made the calculation (unethical as it might be) that it is worth taking the risk.
But you shouldn’t take the risk, and you always should have an indemnification clause and always inform producers about what music is being used- even preshow or intermission music – in a production.
For non-profit productions, it’s generally enough to provide title information and whatever you can easily find about authors or publishers. Also provide approximately how much of the piece is being used in seconds, and where it’s being used.
For commercial productions, or high profile non-profit productions in New York or L.A. I usually try to dig up a little more info, going to ASCAP’s ACE database (https://mobile.ascap.com/aceclient/AceWeb/) and BMI’s repertoire search (http://repertoire.bmi.com/startpage.asp). Here you can find detailed writer and publisher info for nearly every published piece of music in the US. While it should be the producer’s responsibility to find this info, when you have a piece that you know is going to need to be cleared, you should go to these databases to sort out exactly what title is the right one- there are of course many songs with the same titles, and you want to make sure you accurately identify the one you’re using. Along with writer and publisher info (including name, address and phone number of all publishers) I always include the ASCAP or BMI work # ID. It’s sometimes hard to determine which is your exact piece; you can figure this out using the list of performers that is attached to each piece, and/or the writers’ names. Sometimes you do your best but you can’t figure out exactly what the right piece is. In those cases, just give them everything you DO know.
Besides title, writer and publisher information, you will also again need to provide the amount of time that you’re using, and also where the piece is being used. Provide page number, and whether it’s being used as transition or as underscoring. Publishers seem to want to know exactly what their pieces are being used to underscore, but I only provide producers with that detailed information when asked.
It’s important to note whether something is being used as preshow or intermission or post show music because the use of these pieces may be covered by blanket licenses that theatres and producers might already have. These differences are explained pretty well in this article: http://firemark.com/2008/01/21/music-rights-for-plays-and-musicals/, although recent legislation is changing what is and what isn’t covered by blanket licenses and this is an area I’m not well versed in.
Suffice to say that the best thing to do to cover your ass is to put together a comprehensive list of what you’re using, as soon as you know (or as late in the game as it might be). Make sure you have a good indemnification clause in your contract. And keep a record of what you have sent to the producer/theatre- an email of word document or excel file. Then the ball is their court, and you can do what you do: be an artist, not a lawyer.