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Getting Permission to Use Copyrighted Texts in Musical Works

For those of you who read my articles on the commissioning process, you’ll recall that one of the things a commissioning contract will typically contain is a clause stating that you’ve cleared the rights to any copyrighted text or music you use in your work. Music publishers put similar clauses their writer agreements and labels have them in their artist contracts, too.

Let’s say you’re a composer and you want to set a text by your favorite poet. If your selected sonneteer happens to be Shakespeare, Elizabeth Barrett Browning or some other person who’s been dead for several hundred years, then there’s no problem since their works are in the public domain. But what if the versifier of choice is only more recently deceased or even happens to be a living, breathing writer like you? Then you’ll need permission to use the poem. Why? Because their works are still under copyright. Setting a copyrighted text to music constitutes making a “derivative work” of that text and the Copyright Act gives the copyright owner the exclusive right to do that in Section 106. And trust me, you can’t claim “fair use” if you use a whole stanza, let alone an entire poem, for the text of your composition.

You’ll always want to get permission before you write that magnum opus. If you write the piece first, especially if it’s a large-scale commissioned work like a song cycle for tenor and orchestra, there’s a good chance you’ll find yourself in deep doo doo if the copyright owner of your chosen text just says “no,” which they have every right to do. Weeks or months of precious writing time will be wasted and you’ll undoubtedly miss the delivery deadline under your commissioning agreement. Even if you can get permission, the rights holder will be able to drive a very hard bargain on the price and may even demand a piece of the copyright to your work if they know you’ve already written your masterpiece around their poem.

So whose door do you go knocking on? It could be a publisher or a literary agent. Start with the copyright page at the front of the anthology that contains the text. Send a short, polite note to the permissions department of publisher listed for the text, explaining who you are and what kind of kind of work you wish to write. Also ask the publisher to refer you to the appropriate rights holder if they aren’t it.

As for the specific rights you’ll need, these include the right to perform your work indefinitely, to have printed music made available and to be able to record the work, both in sound recordings and in audiovisual works. You’d be amazed how often composers, thinking only about the premiere, will only get the right to perform the work for a short time and neglect to obtain, or even ask for, the necessary publication and recording rights.

You’ll also need patience and persistence. It can take anywhere from a few weeks to several months of follow-up emails and voicemails to get a response and then negotiate a deal once you get to the proper rights holder. Don’t pester and always be polite. Otherwise, you’ll guarantee a slow — and negative — response.

The publisher of the text will want an appropriate copyright notice in any concert programs, printed music or recordings. Although they’ll sometimes insist upon a portion of the writer’s share of royalties (i.e., income), you should avoid giving them a share of the copyright (i.e., ownership) in your work. Flat-fee buyouts in the range of $500-$1,500 are common, especially for choral works written for the educational market, although these fees can range from nominal (e.g., $50) to enormous ($5,000).

The process is very similar if you want to use a quotation of a copyrighted musical work. Start by contacting the business affairs department of the music publisher for the work. If you don’t know who the publisher is, you can search on the website of the appropriate performing right organization. ASCAP, BMI and SESAC all have searchable online databases for their repertoire.

An earlier version of this article was published on BMI’s Songwriter 101 web site on October 8, 2010.

Composing for Orchestras and Other Ensembles, Part II: Doing the Deal

Last time, I told you how you can find someone to commission you to write a new composition and how much you might get paid for your trouble. Now, I’ll outline the major deal points in a typical commissioning agreement so you’ll be able to deal the deal once you’ve gotten the gig.  A commissioning agreement will cover most, if not all of the same terms whether you’re writing for the Chicago Symphony, New York City Ballet, San Francisco Opera or any number of smaller ensembles. Given the current labor and economic troubles of the Minnesota, St. Paul, Atlanta, Indianapolis and other orchestras, it’s probably better to pursue  a commission from a regional ensemble or from colleges and conservatories like Indiana University and Juilliard.

So, let’s assume you’ve convinced the Schenectady Chamber Arts Brigade to pay you $18,000 to compose that 12-minute piece for soprano, accordion, bag pipes, didgeridoo and percussion you’ve always wanted to write. Now it’s time to negotiate the commissioning agreement.

What goes in the SCAB contract? Of course, your name, the commissioner’s name, the length of the work and the instrumentation all are spelled out. You’ll also agree that the work is original, that it doesn’t infringe upon anything, that any text, samples or quotations you include have been cleared and that the agreement won’t violate any other contracts you’ve entered into.

Typically, you’ll be paid your fee in two parts: half on signing the contract and the rest when the score to the work is delivered. This brings me to a major pitfall: preparing the actual written music. Let’s assume the SCAB piece requires 10 performers plus a conductor. They’ll each need music. And that costs money. Even if you write with Finale or Sibelius, it could cost a few grand to create performance-quality score and parts for this piece. These costs can exceed $10,000 for orchestral works; a full-length opera, with soloists, orchestra and chorus, can easily cost more than $50,000 to prepare. Make sure that in addition to the commission fee, there’s a provision to pay for some, if not all, of the prep costs.

So what does SCAB get for the 18 grand it paid you? They get one or more exclusivities. You’ll always want to limit the exclusivities, as they prevent others from performing your piece and earning you royalties, which can be in the hundreds of dollars per performance from the public performance fees and renting out the score and parts. Any commissioner will get the exclusive right to present the world premiere of the work. If you’ve got a lot of clout or a good lawyer, that’s all the commissioner may get.

Other typical exclusivities include: the right to perform the work for a certain period of time (e.g., one year), the right to present premieres in other territories and the right to make the first recording of your new masterpiece. If there’s more than one commissioner, internal squabbles over who gets the world premiere, recording rights and what territories are reserved for each of them will also need to be resolved. I once engaged in major international diplomacy over several months to sort these issues out in one agreement among six different commissioners in five different countries on both sides of the Atlantic!

There should be limits on liability in the event of late delivery or failure to complete the work. I also like to spell out the precise dates and venues of any performances covered under the contract. I also try to get the commissioner to give the composer a free archival recording of the premiere to help secure future performances of the work, although some of the major orchestras will resist this because of union issues.

There are certain industry customs and they are often somewhat different whether you’re dealing with American or European commissioners. And commissions for major works such as operas, symphonies and concertos are often shared among several commissioners. This can be daunting even for the most business-savvy of composers. If you’re a self-published composer you should definitely consider hiring a lawyer experienced in negotiating these deals to help you.

Finally, make sure the commissioner pays reasonable travel, hotel and per diem expenses if the world premiere takes place far away from where you live, and that you get free tickets to the world premiere for your family, friends — and your lawyer.

An earlier version of this article was published in BMI’s Songwriter 101 site on August 25, 2010.