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A distinction must be made between obtaining the rights for a “musical play” or for a “play with music.” The “grand” performing rights ' the rights to use music for a musical play (ie, in a live production in which the music is primary) ' can be acquired from the book writer, composer and lyricist, or from the owner if someone other than the creators owns the rights. (“Small” performing rights are for additional uses that may include record sales, radio and print rights.) A play with music, on the other hand, is a straight play, a drama, a comedy or other production in which music is used as part of the play. Because the music is needed as part of a play and is not just being performed by itself on stage, radio or television, the equivalent of a grand performing right is needed in the nature of a limited non-exclusive license. The rights to use music in a play with music are obtained in almost all instances from the music-publishing company.
Acquiring the rights to use music in a play with music can best be described as a journey with Alice through Wonderland. It usually isn't an easy chore. Some of the obvious reasons for the difficulties are:
Bearing in mind as a constant reminder that a play producer must treat all publishers as favored nations, it makes good sense to try to start out with a publisher that will give the producer the most favored terms. Unless a producer deals with a number of publishers licensing de-partments on a continual basis and knows how they think, there is a great deal of luck involved in selecting which one to go to first.
How does one treat all of the interested publishers on a favored-nations basis? If it is required for the play that Song A be used for 1 minute, Song B for 3 minutes and Song C for 5 minutes, does Song B gets paid 3 times and Song C get paid 5 times what Song A gets paid? Or does it satisfy the favored-nations requirement if Songs A, B and C all get paid the same amount without consideration of how long each piece is used in the play?
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