You Have to Pay to Play: Copyright, Contracts, and Royalties for Theatre

Illegal file sharing has made it challenging for artists to protect their work from theft. Plays and musicals are hard hit because unauthorised scripts and libretti are easily accessible. Unscrupulous companies produce work without paying the author, and without consideration of the quality control that is their right.

Copyright is the law that protects the artist's work. It gives the author the right to exercise control over the use of their work (eg. whether or not is it OK to change the gender of characters, whether you make cuts, whether you are granted performance permission). The copyright mark © indicates who owns the work. This work is the author's intellectual property.

You must have the owner's permission to use their intellectual property. Permission normally comes in the form of a contract which outlines how you may use it, when, where, and what it costs. The contract is your signed promise to present the work the way that the author intended, and it is proof of permission to perform.

The royalty payment accompanies the signed contract. This is how authors get paid for their work.

To better understand intellectual property, it helps to compare it to something tangible:

So it is with plays and musicals. Producers are renters of this intellectual property, and must have permission to use it and permission to change it. Most contracts state that you must have express written permission to make changes.

Each publishing company has rules for works that are under their purview. The rules are similar from house to house--however, it is important to read the contract for every show. Musical theatre contracts are usually more restrictive than contracts for plays. Musical theatre royalties are far more expensive than play royalties. Amateur rights for a six-performance run of a play may cost hundreds of dollars; for musicals, the same run may cost many thousands.

People who are new to the theatre are often the ones who are in breach of copyright law. Some producers will not honour the terms of the contract, violating the author's copyright by making unauthorised changes. A few violate copyright by not securing a contract at all, to avoid paying royalties. This is theft.

Illegal productions cause higher royalty rates across the industry. We all pay the price for the few who feel entitled to other people's property without paying them. Worse than legitimate companies paying more--the author is deprived of income.

Ignorance is not a defence against copyright violation, especially in the age of the internet where information is at your fingertips. Publishing companies post valuable information to guide producers through the process of legally producing shows, and avoiding copyright violations.

These are some common points that publishers make:

You may announce a show when your contract is in place, but not before.

From Tams Witmark's website:

“When can I announce and advertise my show?
You can commence announcing and advertising after we have licensed you to present performances.”

This protects both the producing company and the publishing house. If you announce a show without a contract being paid, you are taking the risk that the title will still be available when you decide to pay for it. The publishing company is responsible for the title, and can pull the availability at any time. Professional touring companies can purchase exclusive rights to perform shows. If that happens, it is the responsibility of the publisher to make sure that other production companies are not presenting the same title. Without a contract, the publisher will not know of conflicting productions, and the author has no control over their property, nor are they being paid.

You may only rehearse with authorised materials.

From Pioneer Drama Service's website:

Distributing a script in any way is illegal unless you have purchased the right to do so. Copyright laws prohibit reproducing the work in any way, and that includes sending it via email or posting a link to the script for others to access in a Dropbox or on a website.

This protects the author by verifying that the script that you receive is the one that he or she approves of, and not some other version. Unauthorized material (usually downloaded or copied) may have changes or omissions. Use of unauthorised materials can be an indicator that there is no contract, and that royalties have not been paid.

You must have a contract before you start to sell tickets.

Surprisingly, this happens.

You must have prior written approval to make changes to the script.

From MTI's website:

When you are granted a performance license, by law the show you license must be performed "as is." You should not make any changes unless you have obtained prior written permission from us to do so. Otherwise, any changes violate the authors’ rights under federal copyright law.

Sometimes, directors will want to present a show in a way that illustrates their unique vision, or make changes to appeal to a local audience. Without express written permission, this is copyright violation. There are works in the public domain (copyright-free!) that you can change and adapt as you wish, but copyrighted works need this permission for you to make changes.

All performances require royalty payments.

From Samuel French's website:

If an audience is present, then a licensing fee must be paid, and legal authorization for performance must be obtained.

Some people think that amateur groups, or performances that do not charge admission, do not need to pay royalties. They see royalty payments as an expense that puts the show out of reach for their group. They do not understand copyright and need to be educated about it. Non-payment of royalties is stealing.

Publishing houses use clipping agencies and internet alerts to see what plays are being produced. No one is under the radar. Companies that produce theatricals without licensing them are risking legal action. Everyone involved with the production can be held liable – even if they are unaware that the production is illegal (joint and several liability). In some cases where the producing company (including its board of directors, employees and cast) cannot pay damages, the venue owner can be sued.

Joint and Several Liability

From the Free Dictionary's website:

A designation of liability by which members of a group are either individually or mutually responsible to a party in whose favor a judgment has been awarded. Joint and several liability is a form of liability that is used in civil cases where two or more people are found liable for damages. The winning plaintiff in such a case may collect the entire judgment from any one of the parties, or from any and all of the parties in various amounts until the judgment is paid in full. In other words, if any of the defendants do not have enough money or assets to pay an equal share of the award, the other defendants must make up the difference.

Having and honouring a contract is one of the most important aspects of the business of theatre, but you don't have to take my word for it – the internet is waiting!

Anne Mortensen, July 12, 2015



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