• The Moot Times UCalgary Law

Dear Playwrights: A Plea on Using Copyrighted Music in Plays

Updated: Nov 8, 2021

by Rhys Martin

Dear Playwrights,


Please, please, please stop using copyrighted music in your scripts. K thx bye.


Oh, you want an explanation? Okay, I guess we can do that. But first let me catch our legal profession readers up to speed on the issue. In a traditional theatrical script, there are informational notes referred to as “stage directions.” Stage directions come in two main forms. The first are literal directions about on-stage action such as: “Adam tosses the iPod offstage” or “Exit pursued by a bear.” The second relates to elements of the theatrical design such as descriptions of the set, lighting, costumes, or audio. In my professional career as a theatre artist, including theatrical composition and sound design, I have seen numerous examples of stage directions specifically calling for the use of copy-righted music. This is not a practice isolated to emerging and early career playwrights either, as many experienced and well-established playwrights do so. For example, Adam Rapp in Red Light Winter, or, though this is a borderline case, Colleen Murphy in Pig Girl. Though a dogmatic devotion to stage directions related to design elements is not always present, it would be rare for a production to outright ignore them. To do so without consent of the playwright may also infringe the licence the theatre has to produce the play, or may otherwise infringe upon the playwright’s moral rights. Though sound designers of their own accord may use copyrighted music in their designs, I believe this practice is becoming less common.


I think that catches everyone up to speed. So, what exactly is the problem here you may ask? In my opinion the issue is two-fold, first is a legal issue, the second an artistic one.


First of all, using copyrighted music in a theatre production without permission is a pretty cut and dry example of copyright infringement, not to mention the framing or modification of the music could infringe moral rights. What about

SOCAN/Re:Sound/the-hot-new-music-tariff-collecting-organization-that-has-just-popped-up you ask? What about them? Though a relevant consideration for theatres as performance venues, and their tariffs applying to pre/post-show music, their licences may not apply or fully cover the usage rights of music when used in a play. So, we are likely stuck asking the artist or their licensing agency for permission to use the music.


Now this isn’t impossible to do, some artists probably are super cool with theatre’s using their music for a play. However, this will almost certainly require a fee that drives up the cost of producing your play and may disincentivize a theatre from producing your work. What’s that? You say that you contacted the musical artist when you wrote your play and gained a non-exclusive licence to use their music in every production of your play? That’s great forward thinking and highly improbable. But this doesn’t fully resolve the issue. Despite this very proactive step, I assume you want your play to be regularly produced over the years, right? As this play should serve as both your magnum opus and eternal legacy à la Shakespeare? Okay cool, so you may have a problem when the artist dies.


Not right away, but in 25 years after death, your licencing agreement will likely self-destruct – and the rights return to the artist’s estate. Now the estate may not be as cool as the artist was and decide they don’t want the music associated with your play. Good news though, this issue will resolve itself when the music becomes part of the public domain 50 years after the artist’s death! A couple of decades of your work not being produced, assuming that the requirement for the music to be used is strictly enforced, probably doesn’t do much for ensuring your eternal legacy as one of the greatest Canadian playwrights who ever lived though.


Not to say your work won’t be produced at all, it could be produced by an educational institution who could use the music on the basis of a fair dealing exemption. Or it could still be produced, but the theatre just won’t use the copyrighted music contrary to your intention. Which could be considered as the theatre basically spitting in your face. Or the theatre says “fuck it” and uses the music anyway risking them getting a cease and desist, the production being shut down, and probably bringing a lot more unwanted attention by rights holders to any future productions of your play.


To summarize, writing in a requirement to use copyrighted music in your play might cause some legal issues, and you may want to consult with a lawyer if you believe that a piece of music absolutely must be a part of your play.


Secondly, requiring copyrighted music is an artistically questionable and boring choice. Most times I’ve seen a requirement for specific music, I think the choice was made because the playwright views the music as informing or resonating with some elements of the play. Art is subjective, however. Because of this the meaning the playwright is hoping to impart through use of music may be entirely lost on the audience. As the audience may not interpret the music the same way the playwright did. Further, because of production specific directorial or design choices the meaning of the play could shift, resulting in the music’s meaning or impact becoming muddled. If the play is more so written around the music, in that it mirrors themes and ideas of the music clearly, or perhaps functions almost as a dramatization of the music, then the risk of meaning being lost is lessened. However, in my experience this is not the norm when specific music is required by a script.


What I believe is a better practice is more detailed stage directions that explain your authorial intent while allowing for flexibility in the production. In my mind there are two main ways to go about this. You could describe the type or goal of the music in general terms and reference a copyrighted song as an example of what you want. For example: “In the club. An absolute banger of a trashy pop song is playing in the background. Something similar to the hit single ‘Die Young’ by Ke$ha.” This approach would also allow for a production team to pursue acquiring rights to use your ideal copyrighted music choice as a possibility. As a secondary approach you could include even greater detail to really cement the emotional and tonal impact you are looking for with a musical cue. For example: “Somewhere in the distance an acid jazz song begins to play. It feels upbeat but with a somber undercurrent. The song seems to pulse and fluctuate in response to James’ emotions. As his monologue comes to an end the song seems to wind down then suddenly, high above it all, an oboe breaks in with a single note.”


Either of these approaches I believe would allow a competent sound designer to successfully execute your vision for your play. While also allowing greater creative freedom for sound designers that set, costume, and lighting designers often enjoy with their designs. Stage directions that better explain the feel, emotion, or impact that a musical element / sound cue should have allows greater control over ultimate impact of music on the audience, as well as allowing a designer flexibility to select or compose music that will work the best for the needs of a production.


So again, my dear playwrights, for the reasons above, please stop writing specific copyrighted music into your plays.


Sincerely,


- A hopeful future lawyer and sad sound designer/composer


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