Copyright for Sound DesignersBy Tom Mardikes

Published in TD&T, Vol. 37 No. 2 (Spring 2001)

Theatre Design & Technology, the journal for design and productionprofessionals in the performing arts and entertainment industry, is publishedfour times a year by United States Institute for Theatre Technology. Forinformation about joining USITT or to purchase back issues of TD&T, pleasecontact the USITT office:

USITT6443 Ridings Rd. Ste 134Syracuse, NY 13206tel: 800-93-USITT (800-938-7488)tel: 315-463-6463fax: 315-463-6525e-mail: info@office.usitt.orgweb: www.usitt.org

Copyright 2001 United States Institute for Theatre Technology, Inc.

16 S P R I N G 2 0 0 1 TD &T Copyright 2001 United States Institute for Theatre Technology, Inc.

Copyright issues are a constant concernamong sound designers: the USITT SoundCommission has devoted at least one confer-ence session to the topic, copyright questionsare frequently asked during the commission’sannual Open Sound Forum and copyright is-sues are a hot topic several times a year on theTheatre-Sound Mailing List, an Internet discus-sion group. There are two basic issues: know-ing how to protect one’s own work andknowing if someone else’s work can be usedfor free or if fees must be paid. Using a ques-tion and answer format, this article will firstexplain some basic concepts of copyright lawand then will get into some specific questionsand scenarios related to the work of theatricalsound designers. At the end is a proposal (adream of mine) for a copyright managementsystem that takes into account the needs of the-atre sound designers and a list of resources.Let’s get started.

Are you an expert?

Thanks, the necessary disclaimer must begiven. I am not an attorney or a copyright ex-pert. Anyone with concerns over the use ofsomeone else’s material or the protection ofhis or her own work should consult with a law-yer who is familiar with copyright and enter-tainment law. Copyright law is amended byCongress almost every two years and courtcases continually change the interpretation ofthe laws. Only an expert in the field can offersolid advice. With that said, I offer this articleas a basic explanation of what I understand asa professional sound designer. My goal is togive readers the ability to ask knowledgeablequestions when they talk to an attorney, a mu-sic publisher or a theatre general manager.

Copyright laws just complicate thingsand stop people from doing creativework. We would be better off withoutthem, right?

Not at all. Copyright law came into existence toencourage and protect creators of intellectualproperty. It is a key component of our freemarket entrepreneurial system. One of the firstuses of copyright protection was for chart and

Frequently Asked QuestionsCopyright SOUND DESIGNERS: for

map makers. No company wanted to spend thetime and effort to prepare accurate maps if assoon the map was created a competitor boughtone, copied it and began selling it cheaper.Our lawmakers have determined since the be-ginning of this republic that protection andtime were the necessary values to encouragethe creation of intellectual property, and thisdetermination remains today. Maps, books,software, playscripts, songs, sound recordingsand paintings are all considered intellectualproperty and are protected by copyright law.Inventions, hardware, mechanical, chemicaland physical processes are all protected bypatents. A fascinating part of our law is thatcopyright protects only works actually createdin some fixed form and patent law protectsonly an invention that has a working prototype.Our laws do not allow the registration of ideas,only fixed works. Our government spots thecreator of an intellectual work a number ofyears of protection, during which time thecivil courts of the nation will hear cases andthe FBI and various state agencies will investi-gate and prosecute copyright infringements.When that time runs out anyone can do what-ever they want with the work. Essentially, thegovernment guarantees the creator a short-term monopoly.

How long do you have to wait until acopyright’s time has run out?

Longer and longer. In 1790 copyright protec-tion lasted fourteen years and another fourteencould be earned by filing for a renewal. In1909 protection was twenty-eight years with atwenty-eight-year renewal. In 1976 the lawchanged the duration to “life of the author plusfifty years.” The Sonny Bono Copyright TermExtension Act (10/27/98) extended the termfor most works to life plus seventy years. No-tice that in the twentieth century the durationof copyright protection focused on the life ofthe author. This change has been driven by ourcompliance by treaty with other nations. Theintent is to offer protection and control to cre-ators during their lifetimes and allows heirsthe same benefit for a number of years. Dura-tion figures also exist for works owned by cor-

porations or companies. Currently a corpora-tion that claims a copyright files for copyrightregistration as a “work-for-hire,” which meansthat all the people working to create the prop-erty were employees or signed agreements as-signing ownership to the corporation. Most filmsare produced as works-for-hire. Your theatrecompany may claim your design as a work-for-hire. Today a work-for-hire gets protection forninety-five years from date of registration.

When a copyright expires, the work issaid to go into the public domain. Public do-main (PD) means we all own it. Whatever theUnited States government publishes is auto-matically considered to be in public domainand can be copied freely. The death stamp to amusic publisher is PD: once a work goes PD itcan never regain copyright protection (even ifnew legislation were to add more years of pro-tection). No one wants his or her copyrightprotection to run out. Today, it’s not uncom-mon for a forty-year-old songwriter to list aninfant child as co-writer of a song, thereby sig-nificantly extending its copyright protection. Acoming conflict I see however is that corpora-tions never die, they just keep going or foldinto another corporation. It’s very possible thata corporation will still be around ninety-fiveyears after receiving copyright protection forsome valuable creation. Mickey Mouse, for in-stance, made his debut in 1927 so he wasslated to go PD in 2002. The Walt Disney Cor-poration was saved by the Sonny Bono law in1998. Now Mickey is protected until 2022. Youcan bet there will be Disney lobbyists workinghard during that time to extend their copyrightprotections even further. Another example isJ.M. Barrie’s Peter Pan which almost went intopublic domain a few years ago. The BritishParliament, however, noting that the benefi-ciary of the substantial licensing revenues fromthis beloved story happens to be a children’shospital in London decided to give Peter Pancopyright protection in perpetuity. Govern-ments can do that.

How do I know if a copyrighted workis in public domain?

You first have to know when the work was cre-

17TD &T S P R I N G 2 0 0 1

©©©

©©Copyright 2001 United States Institute for Theatre Technology, Inc.

byTom Mardikes

ated. Then you have to take into account the dif-ferent copyright duration periods. The UnitedStates Copyright Office has a free booklet, Cir-cular 15a, which explains the provisions ofcopyright law pertaining to duration. It’s availablein PDF format on the Web at www.loc.gov/copyright/circs/. Here are some examples of worksnow in public domain and some that are stillprotected: A work published in 1910 wouldhave twenty-eight years initial protection andtwenty-eight years renewal. It would have goneinto public domain in 1966. A work publishedin 1920 would have twenty-eight years initialprotection, twenty-eight years renewal and wouldhave gone public domain in 1976. It stays in pub-lic domain because the 1976 law extending theterm did not go into effect until January 1, 1978.A work published in 1966 would have gone PDin 1994 except for the changes in copyrightlaw—the Copyright Act of 1976 and its amend-ments in 1992 and 1998. Assuming the work isowned by a corporation, these new laws would

give it a total of 95 years of protection, so itwould go public domain in 2061. (We’ll neverget access to those songs by the Beatles!) Awork published in 1980 would be given the lifeof the author plus seventy years, or ninety-fiveyears as a work-for-hire (2075PD).

If I do a design for a theatre, creatingmusic and sound, do I own my work?

Some theatres claim ownership. If you sign anagreement stating the design you create is awork-for-hire or if you are a full-time em-ployee of the theatre and you receive a benefitspackage (health insurance, etc.) then the the-atre can claim ownership. If you are an itiner-ant designer (better known as anindependent contractor) and do a couple ofshows a year for a theatre, then you own thedesign. In the United Scenic Artists’ model de-sign agreement all designers (including sounddesigners) own their designs and the theatre isessentially paying for a one-time use of it for

the production. The theatre may get a dis-counted fee on a remount but does not haveany claim to your design if you want to licenseit to another theatre.

I have a few scores that I would like toprotect. I’ve sold them to several the-atres and I want to make sure anothertheatre doesn’t take my work. How doI copyright my score?

Copyright law guarantees protection from themoment of fixation. Again, copyright laws donot protect ideas or creative expressions un-less they are “fixed in a tangible form of ex-pression.” Fixing a work is accomplishedwhen it is written down, recorded or built intoa cue. Once something is fixed, protection isachieved. Period. Now you can go a step fur-ther. You can register your work with the Copy-right Office at the Library of Congress. Amusical composition would use Form PA (Per-forming Arts), a sound recording is Form SR

18 S P R I N G 2 0 0 1 TD &T Copyright 2001 United States Institute for Theatre Technology, Inc.

and you can register a collection (and save alot of money) by using Form CA (Correction/Amplification). Please note that you do nothave to send anything to the Copyright Office toprotect your copyright. It is guaranteed by thegovernment at the moment it is fixed. Registra-tion of a copyright however, provides addi-tional protection. Should you discover aninfringement of your work, hire an attorneyand go to trial, a victory for you means that thecourt will order the infringer to pay yourattorney’s fees and you will have the choice ofreceiving actual damages or statutory damages.Statutory damages established by the court areusually higher. Attorney’s fees are always veryexpensive, maybe higher than the damagesawarded to you by the court. So register yourwork if you think there is any possible chanceyou might need the added protection. It onlycosts $30 to register an entire design. With thatsaid, I know of no sound designer/composerwho registers his or her work.

Why are there different copyrightforms for composition and soundrecording?

Whenever a musical composition is consid-ered, two rights are always in play. There is thewritten musical score created by a composerand usually controlled by a music publisherand a sound recording of the music per-formed by recording artists and controlled bya record company.

Do you have to get permission fromtwo parties in order to legally usesomeone else’s music?

Maybe.

What are the rights of a copyrightowner?

There are five basic rights for owners of copy-righted works. The right

• to reproduce,• to prepare derivative works,• to distribute,• to perform,• to display.

Of the five only two, possibly three, comeinto serious concern for the sound designer. Dis-tribute and display are not really concerns sincesound designers are probably not going to bemass marketing products from their designsor be visually representing someone else’s mu-sic. Derivative work preparations definitely needto be licensed, and a license should be securedbefore a derivative work is commenced.

What about the other two, to performand to reproduce?

Reproduction deals with the right to makecopies and manufacture copies. Now this getstechnical and theoretical. Anyone can pur-chase a recording and make their own homecopy, but that does not include a professionaluse for the theatre. If a sound designer wantsto use copyrighted material, a license is neces-sary to give him or her permission to copy asound recording into a computer, or to copy itfrom say a purchased compact disc tominidisc. Actually, two licenses are necessary ifa piece of music were being copied. A mechani-cal license from the music publisher is necessaryto authorize use of a composer’s work and an-other license is required from the record com-pany. Let’s be honest though, hardly anytheatres bother to get reproduction licensesfrom publishers or record companies.

Have sound designers been prosecutedfor not licensing copyrighted works?

Not yet. But record companies could get reallynasty here if they wanted to. There are incred-ibly strong anti-counterfeiting and anti-piratinglaws that could be applied to a theatre opera-tion and its sound designer throwing them intocriminal court if someone wanted to push thecase. Sound designers often refer to what theydo as “flying under the radar.”

What does that mean?

It means that if we fly low enough we won’t bespotted. It also means that the value of what westeal from record companies and music pub-lishers is not significant enough yet for them toprosecute. It means that only a couple of the-atres in music industry markets (NY, LA) reallyworry about clearing what they use. I know ofa theatre in Chicago that didn’t clear the use of“Happy Birthday” and several other popularsongs in a production, but if the show hadgone to Broadway, they would have. But nowwe are shifting our focus from reproductionrights to performance rights.

Aren’t performance rights covered byan ASCAP or BMI license?

Performance is the strangest rights categorythat we will talk about, and it is where mostof the licensing action takes place. Accord-ing to copyright law as it relates to the musicbusiness, performance rights deal with livepresentation to the public. This definitely in-cludes all theatrical presentations but inter-estingly also includes broadcasting. In the

early twentieth century the main sources ofrevenue for a music publisher and a com-poser were dramatic performance royaltiesearned from Vaudeville productions or Broad-way musicals, sheet music sales and an in-creasing stream on mechanical licenses fromrecords sold. Performing Rights Societies, firstASCAP (American Society of Composers, Au-thors and Publishers) and later BMI(Broadcast Music Industries) were formedto license the use of music and collectmoney from the users of music. At firstASCAP was licensing/collecting for varietyshows, restaurants and nightclubs. Thesewere called Small Rights because the realmoney was in Vaudeville and on Broadway;these were the Grand Rights. The irony hereis that Small Rights grew to include the ex-plosion of radio and later television, cableand satellite broadcasting and Grand Rightshave been totally dwarfed by this growth.ASCAP tried to license the use of music inmovie theatres and lost the case in courtmany years ago. The outcome was that Per-forming Rights Societies are enjoined fromlicensing music in the movie industry. Theyare also very limited in what they can licensein theatrical performance.

So the answer to your question is no.ASCAP/BMI can issue licenses covering thenondramatic use of preshow and intermis-sion music in the theatre and in the lobby,but the theatre must go directly to the musicpublisher to license the use of a song to beincluded within a production. This useshould be called a dramatic performance li-cense but frequently music publishers referto it as a grand license. Al and Bob Kohn intheir illuminating book Kohn on Music Li-censing have a whole chapter on the dra-matic use of music called “The Grand RightsControversy” where they try to demystify andcorrectly describe and define the use ofGrand Rights. Very simply put, they considera Grand Right to be only the licensing of anentire work from the creating producers,like a musical or opera, where the licensemight include everything from the music,score, book and even designs and staging.Licensing a single song from a musicaldoesn’t call for a Grand Rights license ac-cording to the Kohns. In a way, their definitionputs the grand back into Grand Rights. Forthem, that leaves two other categories, dra-matic performance and nondramatic perfor-mance. Here the determination spins onwhether the use of the song in a production is

19TD &T S P R I N G 2 0 0 1Copyright 2001 United States Institute for Theatre Technology, Inc.

participating in the telling of the story. Theyassert that a license is needed from a musicpublisher to use a song in a dramatic pro-duction that advances dramatic action. A va-riety show, say a presentation of a number ofBroadway musical show tunes, tells no storyand thus could actually be covered by anASCAP/BMI license.

So how do we go about getting permis-sion to use a piece of music?

Here is the beauty of the situation for thesound designer. All you have to do is give theinformation you have about a particular songto the theatre business office and it is their re-sponsibility to negotiate the use and fees and tosecure licenses. First, the sound designer’scontract should state that the designer is onlyresponsible for supplying the information thatthe designer has about music being used; a listincluding what can be taken off of the medialike the song title, composer, publisher, per-forming rights society, year of copyright. (Acouple of these is all the theatre needs to iden-tify who controls the music. ASCAP and BMIhave search engines on their Web sites that al-low a user to find publishers for songs.) Sec-ond, the designer’s contract should hold himor her harmless from legal action by a pub-lisher against the theatre and place all respon-sibility upon the theatre. That is it as far as thesound designer is concerned. It might inter-est you to know that the business office maycontact the publisher directly, may engagethe services of a music clearing house, ormay file your list of songs used in File 13.Based on my experience, I would expect a LORTtheatre to pay a fee of about $100 to $150 for per-mission to use a song for a two-to-three-week runof a show. Clearing House services typically costabout as much as the fees paid to publishers.Sometimes the business office, trying to oper-ate legitimately, will instruct the sound de-signer to pull a song from a show because apublisher refused to issue a license. Fortu-nately, publishers are getting more used to li-censing bits of songs today because of thesampling rage.

So what can a sound designer use le-gally without having to get a license?

From the music perspective a song cannot bequoted in a recognizable way without the per-mission of the author/publisher. “Happy Birth-day” cannot be hinted at without a license todo so, even embedded within an original musi-cal score. So, the direct answer is, except for

very limited circumstances considered “fairuse,” if a designer wants to use a copyrightedwork, he or she must get permission.

Some theatres try to pass off their unli-censed use of a song under the Fair Use provisionof the copyright law. However, fair use is widelymisunderstood and abused. The basic tests offair use are whether the author is deprived ofincome and/or control of the work by its use,whether a substantial selection, one that repre-sents the whole work, has been used, whether theuse is for commercial or educational purposes,and whether a likelihood exists that damagemight be inflicted on the work by its unautho-rized use. Journalists are covered by fair useand they frequently use little snips of music,images or text in their reviews and criticisms.Scholars are also protected when they usecopyrighted material in their research andteachers may use limited passages for instruc-tional purposes. Parody too is interestinglyand sometimes controversially consideredfair use. Use of copyrighted material in apublic performance, even if the theatre isnon-profit or educational, is not consideredfair use.

My director wants to use musicfrom Mozart in this production ofAmadeus. Is there any problem here?

Mozart’s work is clearly in public domain.Most people will just use a recording that thedirector likes, edit as needed and put it intothe show. But know that there could be a snafuwith the orchestra sound recording. The use ofsound recordings in live performance is veryfuzzy; the copyright law does not offer soundrecordings copyright protection for live perfor-mance so technically you do not have to securepermission from a recording artist/recordcompany to use the recordings in the theatre.However, Musician’s Union contracts may pre-vent that interpretation. The record company mayalso claim infringement because you copied itsrecording into a computer to edit without a me-chanical license. They could also claim that youcreated a derivative work without their permis-sion, but that would be stretching it. Bottom linehere is that record companies generally do notwant to be bothered since it is questionable as towhether they can demand a license and the valueof that license is only a couple of hundred dollars.Dealing with this kind of theatre licensing is notreally cost effective.

Alternatively, you could do your own re-cording. Take care though that the musical scoreyou wish to use isn’t protected by a copyright. The

music publisher that sells or rents the scoremight have copyrighted the orchestral parts, eventhough Mozart is public domain. When I did aproduction of Amadeus we hired an orchestratorto create a tailored score for our production andrecorded our own orchestra.

I need to use a recent pop song in mydesign. What needs to be licensed?

Provide your business office with the title, com-poser, publisher and date of copyright, if pos-sible. They should contact the publisher and letthem know the song requested, length of run,number of performances, size of house, etc. Ifseveral songs are going to be used, any pub-lisher may request what they call “most fa-vored nation” status, which means that they allwant to be paid equally. This makes it difficultfor the business office when clearing ten songsand one publisher wants twice what the otherpublishers are asking. To get that song into theproduction now costs significantly more. Thesound recording should be used without feesince it is for a live performance, but the the-atre business office may wish to contact therecord company for a mechanical license tocopy the song.

I use sound effect CDs all of the time.Am I infringing anything there?

If you or the theatre purchased the discs fromthe manufacturer, your license permits you todo about anything but duplicate the disc to sellto someone else. If a friend gives you thesound effects then you are stealing.

I created a super dragon sound effectby pulling various sounds from a lot ofdifferent sources. A couple of themwere off of VHS copies of movies. Am Iinfringing anything here?

Probably not. The sound recordings from theVHS movies would not have live performancecopyright protection. Mixing many elementsmay also make any individual element truly un-recognizable.

I created some killer ambiances byslowing a source down by a factor offour, reversing the audio and mixingfive or six elements together. Thesource was a disc of Japanese elec-tronic music compositions. Am I in-fringing anything here?

Lack of recognition and a complex mix mightmake this difficult to prove, but technically thecomposer’s rights are being infringed upon.

20 S P R I N G 2 0 0 1 TD &T Copyright 2001 United States Institute for Theatre Technology, Inc.

Blithe Spirit is the next show I haveto design. The Irving Berlin tune“Always” is a necessary part of theplay as written by Noel Coward. Dothe rights to use the song come withthe rights to do the play?

New plays are beginning to have the licensingfor music bundled into the license to performthe play. For an older play…? Rarely. “Always”was written around 1925 and is still undercopyright protection. The play and thereforethe song are in constant production worldwidebut the licensing of the two is not connected.The music publisher would need to be con-tacted to secure a license.

Let us address once again the sound record-ing copyright, which gets very complicated on thisone. The designer could easily provide ten ormore recorded versions of “Always.” Becausecopyright law never addressed sound record-ings until 1976 and because record pirating hasbeen a problem since record companies beganselling recordings, protection for sound record-ings was offered on a state by state level for mostof the twentieth century. Since an old recordingof “Always” will probably be used, the old statelaws may be applicable, which means the needto license the sound recording could dependupon where you produce Blithe Spirit.

Does my theatre company need anASCAP/BMI license?

If your theatre plays music nondramatically youneed a license. That would include preshowmusic, intermission music, postshow music,cocktail party music, even work music in thescene shop.

My dance school does concerts everyyear and we play mostly popular mu-sic in our program. What kind of li-cense do we need?

An ASCAP/BMI license should cover your useof music since you are doing basically a varietyshow. Unfortunately, the sound recording co-nundrum applies to your situation as well.

I created an original score and did myown recording with musicians. I don’thave to license anything, do I?

No you don’t. You created it and you havefixed the work, so you own the copyright.Musicians who are recording your music inthe studio for the production should agreethat they are being paid in full for their par-ticipation in the recording and that they un-derstand that you might license the design to

another theatre one day. Register your workwith the Copyright Office, using Form SR,which will provide composition and soundrecording registration when you createdand own both. It’s only $30.

A Dream: A Copyright ManagementSystem

Music publishers control rights to thousandsof songs and rarely have time to “manage” anyspecific property. These publishers contractseveral other companies to issue licenses andcollect fees. The Harry Fox agency handles me-chanical licenses for music publishers andASCAP or BMI handle performance rights forthem. Publishers generally negotiate and issuebig dollar licenses for television and film anddon’t have time for much else. Where publish-ers would not make a lot of money dealingspecifically with individual theatres, a lot ofmoney could be made if a small fee were paidto a licensing agency and lots of these feeswere transferred over to the publishers. Inother words, a theatre might pay a $25 fee persong, which is less than what a publisherwould issue a license for now. So instead oftwenty theatres paying $100 each to a pub-lisher for rights to a song, two hundred the-atres might pay $25 for that song through alicensing agency. This could be organizedthrough ASCAP/BMI or better yet throughHarry Fox which is owned by the National Mu-sic Publishers Association. Harry Fox is cur-rently issuing mechanical licenses on-line withpayment via credit card. Why not issue dra-matic performance licenses as well? It wouldalso be helpful for Samuel French or DramatistPlay Services to license and collect fees formusic publishers when a play includes specificsongs in the text. The play should not includethe song if the composer/publisher does notwish the song to be used.

The sound recording issue is much moredifficult. Theatres should be able to use soundrecordings without license or fee as the copy-right act seems to imply, but there are toomany conflicting instances surrounding theuse of sound recordings to make this totally“safe.” Congress could help by declaring whatit specifically intended. The fairest course ofaction would be for theatres to pay a fee torecord companies similar to my proposalabove for music compositions. A new agencywould represent record labels and issue li-censes for use of sound recordings, includingprofessional transcriptions and copying themto a editing computer and/or a show playback

system. Under this system, the record compa-nies would need to be required to share thefees collected with their recording artists.

Finally, it would be appropriate for Con-gress to convey to the theatrical community thesame largess given to the recording industry inthe Compulsory Mechanical License. It wouldbe fair and appropriate if once a musical re-cording were released commercially to thepublic, any theatre company would automati-cally have permission to use the music andsound recording in a production as long asthey paid the stipulated fee.

Recommended sources for moreinformation:

Al and Bob Kohn, Kohn on Music Licensing,2nd edition (Englewoods Cliffs, NJ:Aspen Law & Business, 1996)

Randy Poe, Music Publishing: A Songwriter’sGuide, 2nd edition (Cincinnati, OH:Writer’s Digest Books, 1997)

Mark Halloran, editor, Musician’s Businessand Legal Guide, 2nd edition (UpperSaddle River, NJ: Prentice-Hall, Inc.,1996)

Geoffrey Hull, The Recording Industry(Needham Heights, MA: Allyn & Bacon,1998)

United States Copyright Office, Library ofCongress (www.loc.gov/copyright/)

Kohn on Music Licensing (www.kohnmusic.com)

The Harry Fox Agency (www.nmpa.org/hfa.html)

The American Society of Composers, Authorsand Publishers (www.ascap.com)

BMI.com (www.bmi.com)Theatre-Sound Mailing List (www.brooklyn.

com/theatre-sound/)

Music clearance agencies:

Evan M. Greenspan Inc. (EMG) (www.clearance.com)

Signature Sound (www.signature-sound.com)Copyright Music and Visuals, 67 Portland St.,

Toronto, Ontario Canada M5V 2M9;426-979-3333. ❖

Tom Mardikes heads the graduate sounddesign program at the University ofMissouri-Kansas City, is resident sounddesigner for Missouri Repertory Theatreand has served as commissioner of theUSITT Sound Commission.