So, you’ve decided to write a song cycle or a choral work, and you have found the “perfect” text. Now what?
It’s easy to see why so many composers are drawn to this medium. The human voice is an instrument of infinite shades of color with the capacity to induce a whole range of human emotions. And with our natural interest in all of the arts, many composers are also attracted to great literature, which is where we go to find the “right” words to fire the creative muse.
However, in the same way that your musical creations are protected by U.S. copyright law, works involving the written word are also protected by these same laws. The short and simple rules are:
Works first published before 1923 are in the public domain in the United States (but may be protected in other countries if the author is not a U.S. national).
Works first published from 1923 through 1977 are protected in the United States for a term of 95 years (assuming they complied with certain formalities).
Works written after 1978 are protected for the life of the author plus seventy years.
So, if a work was written in 1985 and the author died in 1997, that work will be protected until the year 2067 (1997 + 70 years). If the work was first published in 1946, it will become public domain material (i.e. a work in which the term of copyright has expired) in the year 2041 (1946 + 95 years).
As of this writing, any work first published prior to 1923 would be in the public domain, and you would not need to obtain permission to use such text. There are, of course, some exceptions and wrinkles. If you want to use a Spanish text that was created in 1909, but you want to set the English translation and that translation was made sometime after 1923, then you are going to have to seek permission from the copyright holder of the translation. A new version, a translation, or an adaptation completed since 1923 would have to be treated like an original poem or prose work.
It is much easier to proceed with your creative musical project if you select writers who have been deceased for a long time. I have worked with some wonderful living poets and count several among my close friends, but there can be numerous challenges in negotiating the legal authorization to set their work. If you are going to set text that is protected by copyright then it is preferable that you not even begin composing that work until all the permission details are in place. This is sometimes difficult to manage since when a composer finds the “right” text they usually are inspired and want to dig right in.
If you simply must work with a living writer or a writer whose work is still under copyright protection, then there are several things that will help to guide you in your quest.
There are basically two categories of permission situations. The first is what I call “established authors and poetical icons” who present special problems. There is a small group of these whom most composers just consider off-limits. This group has made it clear individually or through their heirs and estates or through their publishers that they simply do not want their text set to music and will not allow it under any condition. Examples include Robert Frost and T.S. Eliot. Frost supposedly gave permission for Randall Thompson to set a poem of his and, after hearing it, said that he would never allow his poetry to be set to music again. The publishers of the poetry of T.S. Eliot simply do not grant permission. I have tried on one occasion and was told politely “no, thank you.” I think the feeling among these poets and authors or their estates and/or their agents is that the text not only does not need music, but that music actually does it a disservice.
In addition to the flat-out “no” answer, there may be just certain conditions that have to be honored. At one time it was considered difficult to obtain permission to set e.e. cummings’s work, but it soon became obvious that one only had to observe a certain condition. The composer must not change one word of the poem and this meant not leaving anything out or even repeating a word in the musical setting. This can present problems since composers often like to repeat a word or phrase to help create a musical structure.
When you settle on a text you would like to use in your work, I would always suggest asking around before beginning to pursue the permissions business. Ask your friends and colleagues if they have ever set this particular writer or if they know of anyone who has. Without too much effort you can usually find someone who has been through the ropes before.
The second category involves published or unpublished poets and authors who are living or have not been deceased for the full 70 years. If you are working with an unpublished writer who is agreeable to your use of a text, then you simply need to work out an agreement that he or she finds acceptable. Most likely this will feature a plan in which you, the composer, and the writer share 50/50 in any royalties derived from the sale or rental of the work.
If the work is published, you may find a publisher who is interested and enthusiastic about having it set to music. In many cases, though, the publisher can present a real stumbling block. First, determine who holds the copyright on the work. This is usually listed in the very beginning pages of the book and often an address is given as well; there is rarely a phone listing. Now with Google and other informational search engines it is generally much easier to locate some in-depth contact information.
At a publishing house, the person you need to contact in order to get clearance to use the text is the permissions editor. This may also be listed as a “Permissions Department.” By and large these people do NOT want to speak with you, so even if you are able to obtain a phone number it may not be much help in expediting the process. They are generally not affected by a claim that “I simply must get started on the writing of my work by next week since the premiere is only six weeks away.” This, of course, is a generalization and there are always exceptions. I once used this line myself and got great results. My call did not reach the permissions editor, but was routed to an assistant who was empathetic and promised to help move things along. She happened to be married to a composer and knew exactly what I was going through. But that was just dumb luck.
The publisher will almost always want you to submit your request in writing, and this is certainly reasonable. No one will want any confusion about what permission was granted and when and for what term. You must keep in mind that the term “copyright” refers to a bundle of rights and the owner of those rights may grant permission for the use of a portion or all of them. They are perfectly within their rights to deny you permission or to grant you permission to use the copyrighted text subject to certain conditions. You are the buyer and they are the seller. They don’t have to sell if they don’t think it is in their best interest.
Now comes the asking part, and my advice would be to ask for all of the rights you think you will ever need up front. A typical letter to a publisher (sent by fax, email, or regular mail, as dictated by the publisher) should probably ask for the following:
I am a composer of concert musical works (or some such terminology) and am seeking permission to set the work of XYXY. The text I would like to set includes:(list each item and cite the volume or source from which it comes, along with the page numbers, e.g.
“Tough Day in Manhattan” from Big City Diaries, p. 28
“Oh, For a Night on the Prairie” from Big City Diaries, p. 47, etc.)
In addition to requesting permission to set the text to music (you can add, if you like, “for baritone and zither” or whatever your performance forces are), I am also seeking permission:
- to have the work performed publicly
- to have the work published
- to have the work recorded
- to have the work video taped
- to have the text printed in a public program
You should ask for all of these rights in your initial request so that you don’t have to go back after the fact to negotiate additional rights which may entail additional fees. They might grant you the right to have your work performed and say nothing about publishing it. Then when you return to say, “Now I would like to have my work published,” they could easily tell you, “Fine. Please pay us $1,200 for that right.” I have been surprised by how often they will simply ignore all of these stipulations and only grant the composer the right to set the words and have the work performed. This is of no value if you stop to consider the future life of the work. You need to obtain at least items 1 and 2 from the above list and preferably 1 through 4 or 5.
On the part of book publishers, and even on the part of the general public, there is a pretty thorough misunderstanding of the term “published” music these days. In the past your work had to be “accepted” by a “reputable” or established publisher through which it was engraved, printed, and distributed for sale. Now, with Finale, Sibelius, Score, and all of the various software engraving programs, your work is really “published” the minute the data has been entered into a computer. All you need is a printer, an order, and a copying machine to complete the cycle from creation to customer. In terms of copyright law, you might add that “published” means reproduced in copies or phonorecords which then may be distributed to the public.
In your letter, you might also request exact wording for acknowledging all of the appropriate parties connected to the selected text. This might help to indicate that you have done this kind of thing before and want to give due credit and also that it is important for you to publicly thank them.
What are some possible results that can come from your request? There are really four basic ones when you are deadling with a text’s publisher.
- The request can be denied.
- They may ask for an up-front fee only.
- They may ask for an up-front fee and a percentage of the royalties from the sale of the work.
- They may agree to a percentage of the royalties only.
If your request is emphatically denied, you may choose do some additional follow-up, but you will likely receive a form letter telling you “no thanks,” and it will probably not be worth your time to pursue it further unless you know someone in the firm. At this point, you should fall out of love with your selected text and move on to another poet.
The request for an up-front fee can be the best alternative given the right conditions. What are those conditions? On occasion the publisher will ask for a very reasonable fee without requesting any portion of the royalties. If this fee is “reasonable” enough—and that depends on your own financial situation—then it may be best to agree to that.
For example: Let’s say that the publisher asks for a one-time fee of $100 and no royalties. This is a great solution for several reasons. It is simple, it is clear, and it means that you or your publisher (of the musical score) do not have to pay a percentage of the sales of the music to the text’s publisher. With one transaction you have taken care of the permission and all financial details. If your work becomes wildly successful and sells thousands of copies, then you can consider yourself lucky that you only had to pay $100 for usage of the text. Even if it doesn’t, however, you were able to secure the rights for a very modest fee.
Point #2 can require a bit of navigating. What book publishers fail to understand is that composers are generally not able to afford a substantial up-front fee. They also usually don’t realize that a 22-minute song cycle for soprano and piano is not going to recoup enough royalties in sales of the music to ever pay back a permission fee of $1,000 or $1,500. Explaining to a permissions editor that your little song cycle will probably sell for $15.99 and on average might sell three or four copies per year (in a good year!) might bring them back to reality.
Point #3 can end up with a few different outcomes and is my least favorite scenario. To have to pay an up-front fee and also give up a share of the royalties puts the composer in debt immediately and puts a dent in all potential future income.
The division of royalties is also a category of discussion. Some people argue that the royalty split should resemble the kind of arrangement that often governs an opera commission. In this case, it is not uncommon that out of the total fees available for commissioning a new work the composer will receive a 2/3 portion and the librettist will receive 1/3. On occasion, composers have successfully applied this model to the distribution of royalties as well. Keep in mind that this does not mean 2/3 and 1/3 of all the money generated by sales. It means 2/3 and 1/3 of the writers’ share. If a musical work sells for $10, then the writers’ share is almost always 10 percent. So the composer would receive $ .67 and the text’s author would receive $ .33 for each copy sold.
Quite often these days I have found that it is easier to simply offer a 50/50 split. It puts both creators on equal footing, acknowledges the importance of the text, and disarms possible disagreements. After all, who but a real hog or an extremely arrogant soul can argue that 50/50 isn’t fair?
Option #4 is a decent and fair-minded proposal and keeps you from having to come up with any initial funds. You or your publisher simply agree to pay a percentage of the monies generated by the sale or rental of the work. It does involve some bookkeeping and the submission of annual statements and a check, but allows you to set the literary work you have chosen without requiring any spending in advance.
I should not fail to mention that fairly often a publisher will have a ready-made form they can send to you which will grant permission subject to their conditions. These are quite often made without too much sensitivity to the composer’s needs, so you need to look it over carefully to make sure that it meets all of your requirements as well. An attorney may be helpful here, but could be quite costly. Unless they are well versed in this area of law, they may only complicate the process.
If you can write a succinct and professional letter using proper English then you don’t need a lawyer to do any of this. You could easily end up paying the attorney more than you would have to pay the publisher. If you are about to write a Broadway show and the producer has shown you a letter of agreement with a brief summary of the royalty pool then I would not make a move without an attorney. But these smaller endeavors—procuring a text for a song cycle, a choral work, etc.—are things that any composer can undertake. It takes a little time, but you will learn quite a bit in the process. All composers would do well to become more acquainted with the copyright law. While you’re at it, learn what the current rates are for mechanical licenses and as much as you can about that part of the business. This will affect you if your work is recorded. And learn about synchronization fees in case there is an opportunity for your work to be used in a T.V. show, a film, or any visual image.
What if you have already set text without securing the required permission or have even had such a piece performed? In this case, my only suggestion would be that you should quietly put away the work and act as if it doesn’t exist. Then I would very tactfully go about the permission-seeking procedure as outlined above. If a successful agreement is reached, you may then produce the “completed” work in due course. If permission is not granted, then you should withdraw the work and hope that no attorneys for the poet’s estate or the publisher were informed. You really don’t want to end up in this kind of hot water if you can avoid it.
I hope these suggestions prove to be helpful. Keep in mind that most writers are quite excited to have their work selected to be part of a musical creation. They, too, are wonderfully creative and independently minded people who are curious to see what might happen when their words are set to music. Seek help where and when you need it and don’t be afraid to ask plenty of questions. As composers, no one expects us to be experts in copyright law and there are plenty of people on the sidelines interested in our creative projects who stand ready, willing, and eager to help.
Composer Stephen Paulus‘s output of more than two hundred works spans many genres, including music for orchestra, chorus, chamber ensembles, solo voice, keyboard, and opera. He is co-founder and a current board vice president of the American Composers Forum and serves on the ASCAP Board of Directors as the concert music representative, a post he has held since 1990.