For those of you who read my recent article 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. 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.
Marc D. Ostrow is a copyright and entertainment lawyer in New York City, as well as a songwriter and composer. Previously, he was the head of the NY office of classical music publisher, Boosey & Hawkes, where he started the jazz division. He also served as a Senior Attorney in BMI’s Legal department. http://www.ostrowesq.com