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Copyright

Q: Licensing for using extracts from other shows

I want to feature extracts from famous shows in a new production. Do I need to protect myself from legal action?

A: Yes. You will need a licence either from the copyright-owner of the dramatic performance rights in the original work ("grand rights" owner) or from the Performing Right Society, depending on whether or not the excerpt is to be performed dramatically, which of course begs the question.

Relevant factors to be considered in determining whether or not the performance of an excerpt is dramatic are the comparative length of the excerpt, the use or otherwise of dramatic staging, costumes, stage scenery and/or mime, and whether or not the significance of the excerpt in the storyline of the whole work is conveyed to the audience by use of programme-notes, oral introduction, or any other means.

For example, take the song entitled Master of the House from the stage musical Les Miserables. If it is to be performed on its own by a singer in modern street-dress, centrestage behind a microphone, simply as a song in a variety bill, with no dramatic features, it will fall within the jurisdiction of the PRS, by whom it will be licensed for live performance under the terms of its standard licensing scheme. However, at the other extreme, if it is to be performed by an actor dressed as an 18th century innkeeper, who, while singing the piece, moves around the tables and chairs of his tavern, serving food and drink to his customers, grimacing and miming to the words of the song, then it will be regarded very probably as a dramatic performance within the licensing jurisdiction of the grand rights owner, who may or may not be willing to grant a licence for the excerpt in a particular instance. Between these two extremes it is sometimes not at all easy to determine which side of the line a performance falls and disputes about this are not uncommon.

The PRS also operates a simple rule of thumb to the effect that, even if performance of an excerpt would not otherwise be regarded as dramatic, it will be treated as such if it is (i) 25 or more minutes in length OR (ii) 25% or more of the whole work OR (iii) a condensed or "potted" version of the whole work. Even a so-called concert version of the whole or part of a stage musical will be outside the jurisdiction of the PRS if it infringes that rule of thumb, although exceptionally an author/composer or other grand rights owner may pass administration of the licensing of grand rights to the Society.

Overseas collection and licensing societies which are affiliated to the PRS and derive their jurisdiction from it in relation to works of UK origin or UK residents are uniformly expected to follow the same principles and I have personal experience of instances where they have done so and where injunctions have been obtained by grand rights owners from foreign courts to restrain offending performances, despite the offenders having purported to have obtained licences from local licensing bodies, based on false information as to the nature of the performance concerned. However, if the work concerned is of foreign origin - and sometimes even where not - some but not all overseas licensing bodies claim to be entitled under their local law to license both dramatic and non-dramatic performances in their own territory and circumstances may render it necessary for a grand rights owner to challenge such claim in a given instance. Some such bodies also have slightly different criteria from the PRS to distinguish between what is or is not dramatic. It is therefore a bit of a minefield in overseas territories.

So-called compilation productions, featuring a series of excerpts from well known stage musicals, usually touring around nationally or internationally or on cruise liners, have become quite common in recent years. They often have dramatic features, bringing them within the licensing jurisdiction of the grand rights owner, and their producers not infrequently plead ignorance as an excuse when challenged in cases of infringement.

First published November 9th 2006