Deal or No Deal: A Grand Rights Primer
Many composers think that if you join ASCAP, BMI, or SESAC, you’ll never have to worry again about receiving some financial compensation for performances of your music. These agencies will collect the money for you, and you’ll get regular checks in the mail whenever and wherever your work gets played.
Performing rights societies, however, are only responsible for collecting and distributing what is defined legally as “small rights.” Small rights fees constitute composer and publisher royalties on everything from a 30-second solo piccolo etude to a 90-minute symphony (which doesn’t sound so small). This includes everything from live performances to radio broadcasts and even cellphone ringtones. But it doesn’t take into account every possible use of your music. What happens if a performance of your music also involves a couple of dancers, or costumes, sets, and maybe even a dramatic scenario? You may have just entered the mysterious realm of “grand rights,” and also left the comfort of the collective bargaining model for a much more volatile and freewheeling economic environment.
To some composers, the phrase “grand rights” evokes no mystery at all. They or their publishers negotiate them every day with presenters, producers, festival directors, and so forth, and every week or so they take the fruits of them to the bank. For many of us, though, it is a hazy concept that we sometimes hear or read about in the back pages of our performing rights organizations’ pamphlets. To quote ASCAP’s licensing agreement:
A dramatic performance shall include, but not be limited to the following: performance of a dramatico-musical work (as hereinafter defined) in its entirety; performance of one or more compositions from a dramatico-musical work (as hereinafter defined) accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken; performance of one or more musical compositions as part of a story or plot, whether accompanied or unaccompanied by dialogue, pantomime, dance, stage action, or visual representation; performance of a concert version of a “dramatico-musical work” (as hereinafter defined).
And finally, just so we know: “The term ‘dramatico-musical’ work as used in this agreement, shall include, but not be limited to, a musical comedy, opera, play with music, revue, or ballet.”
BMI’s agreement is very similar:
BMI only licenses non-dramatic performing rights in the music it controls. A dramatic performing right can involve either music which was originally part of a “dramatic or dramatico-musical work” (the term generally used to describe operas, operettas, musical shows, ballets, movies and other similar productions), or it can involve the dramatic use of music which may not have been originally a part of such a dramatic or dramatico-musical work.
Once you create something in which music is only one component, it doesn’t matter whether the music constitutes as much as 85 percent or as little as 5 percent of the content. If the other components are not subsumed within the structure of the music, blanket agreements like the “small rights” ones that ASCAP, BMI, and SECAC maintain with venues all over the country, are no longer applicable. Therefore, fees must be determined on a case-by-case basis.
Although the basics of the term “grand rights” are the same no matter what organization or lawyer you are talking to, you should be clear with your affiliated agency regarding whether or not these areas are defined in exactly the same way. For example, in my conversation with BMI’s Ralph Jackson, I learned that for the purpose of determining whether a piece is going to land in the grand rights category (especially concert arrangements of dramatic pieces), BMI looks closely at all the details of the printed program and at any other documentation (such as newspaper reviews) of the performance—e.g. if a byline for a choreographer appears in the program, this could be a tell-tale sign that the work in question would not be covered by a blanket license for small rights.
In the era prior to the founding of ASCAP, BMI, SESAC, or any of their international equivalents, it was always up to the composers (or their publishers) to leverage the best percentages they could from “the house.” But as these agencies came into being, it was partly these organizations’ composer and publisher members who decided what sort of control to cede to them. It is understandable that a successful composer or publisher would not want to hand over control of negotiating rights if he or she is doing pretty well in that particular arena. In one sense, this division of labor is simply a decision made by a majority of the members of a given performing rights society, because that’s the way they wanted their particular club to work.
However there is another compelling reason for performing rights societies to stay out of grand rights negotiations: the prevailing legal opinion strongly suggests that for them to do so would constitute price fixing and would violate several statutes of anti-trust laws of many governments.
There now, everything clear? If not, let’s continue.
Avoiding a Grand Wrong
A long time ago, in an age before Cage, Kagel, or even Satie, it was fairly obvious when a composer had crossed the line into the “dramatico”—one might even call it a work with a narrative structure, or maybe even recognize it as something with a story line. Nowadays a composer might write a piece with only a smattering of text or dance in it and not consider those extra-musical components significant enough to warrant a grand right. But a presenter considering that piece for a program may see it the other way around and not want to deal with a questionable grand rights piece (because it will cost more), and therefore decide not to use it. Dance elements in a piece almost always raise a red flag on the grand rights question, but Morton Gould’s Concerto for Tap Dancer does not. Somehow the use of dance in this case seems safely encapsulated as a musical element and not a “dramatico” one.
A presenter deciding not to use a piece due to unwillingness to negotiate a grand rights agreement is just one example of how the grand rights issue can negatively impact a composer. If you are not self-published, make sure your publisher is always in agreement with you about which pieces in your catalogue are straight ahead concert works, which are clearly dramatic, and those which might flip one way or the other, depending on interpretation. This example is a “before the event” situation.
But there can be post-event problems as well. The artist thinks he has written a concert work that has some elements of abstract theater in it. The presenter presents it; then after the event, disagreement ensues. The artist thinks he is due small rights royalties, but the presenter says: “No, that was a theatrical event which cost a lot to put on. And we needed more money for sets, so there’s where your grand rights fee went.” At this point, you could try to fight them, but then your artists fee will basically just be going to the lawyers. (And you thought negotiating before an event was difficult!)
Despite the possibilities for extreme, and potentially litigious, differences in interpretation, having a piece in your catalog that carries a grand rights designation is not necessarily a bad thing. Commercial productions involve them all the time, and if the show runs on or off Broadway for ten years, the “pie” is large enough for all parties to share nicely, or even to pay lawyers to slice it up in a fair manner while keeping some of the crust for themselves.
A typical “new music” theater production probably is not going to run for ten years. More likely, if not a one-off production, it may have a short tour and a budget that has very little fat. It’s in these cases where the presenter or presenting organization is less keen to get involved in the required extras. Sometimes just the cost of having the lawyers draw up contracts is enough to tip the balance into the red. However, new, on-the-fringe, boundary-crossing productions happen often enough for us to know that the situation is not hopeless. There are a number of survival strategies.
If we’re going to talk about numbers—e.g. percentages of ticket sale revenue—we’re getting into a vast and murky land for sure. For one thing, the range of percentages has changed dramatically over the past thirty years. Decades ago, it was typical to negotiate for three-and-a-half to four percent of eventual house earnings; nowadays, seven to eight percent is not unusual. If you have a librettist, you’ll have to share. Ultimately it’s quite a gamble. Opening night could see you dining on caviar if you sell out the Met. Then again, you might have to settle for reheated leftovers if no one shows up. The percentage rule is not fixed in stone, however. School productions are usually negotiated based on a flat fee.
There are also many additional variables, a big one being the rental fee for the music. If the publisher is making a hefty rental fee, you might not be surprised to see the presenter holding a tighter line on what they want to pay in addition to that. Sometimes there are benefits other than cash which get included in a grand rights agreement, but they have to be specifically requested. Comp tickets are just such an item. It’s not unusual for a presenter to give the publisher two tickets (for each piece the publisher has on the concert), but it has to be requested ahead of time in the contract.
Grand rights issues extend beyond the proscenium. If a radio station wants to broadcast your opera, let’s say, it is required to obtain a grand rights license from you ahead of time. How high a fee you will be able to negotiate has to do with the name recognition of the composer or the piece.
Complicating matters further, works covered under small rights licenses (your latest piano sonata or string quartet) become grand rights properties as soon as someone wants to use them in a theatrical or dance presentation. The publisher of your work not only maintains the right to negotiate a fee (which again can fluctuate widely, but a good ballpark figure is within the above numbers of between three-and-a-half to eight percent), but he or she also has the right to refuse any requests to adapt the work, or to be as selective as he or she wants. This has made for many a lively cocktail conversation.
If you’re one of those people who uses an accountant rather than personally face those complex tax forms, this all might sound a little bit daunting. But, once you’ve done it a few times, you will get better at the money. If you feel queasy about it, try it with your friends first. If that’s still too uncomfortable, try it with your dog or cat. If you don’t have one of those, borrow one from a friend. Things will get better.
After You’ve Figured Out the Secret Handshake (We Can’t Tell You)…
There is a certain veil around the grand rights issue that does make it a little more complicated than talking about interest rates with your neighbor’s pet. And that’s the fact that we are not supposed to compare notes about who was able to get what percent, at least in public. Grand rights are partly reckoned as a percentage of the box office take, but there are sometimes substantial fees encountered up front, if the writer’s/composer’s representatives have the leverage to do so.
Although the composers or their publishers negotiate these special rights, they are not allowed to discuss them with other writers. Writers are not even supposed to broach this topic if they are part of a public panel. In my conversations with ASCAP’s Fran Richard, she related just how sensitive this topic can be.
In the early days of Meet The Composer, Stephen Sondheim helpfully drew up a guide of recommended fees for composers. This was almost immediately met with the threat of a lawsuit charging monopoly and restraint of trade. If you look in a Meet The Composer handbook today, you will see a schedule of fees which are broad ranges, so broad one might think they are too vague. Well, they have to be. For one thing they truly do reflect a wide range of factors: the career stage of the composer; the duration and forces required for the piece; the nature of the commissioning organization, just to name a few. However, if they were more specific, they could be potentially illegal with regard to laws about monopoly and free trade.
I recently talked with Mikel Rouse, specifically about how composers maintain themselves, their careers, and their homes in this complex workplace environment. It sometimes resembles the ideal of a left of center socialist paradigm where your union makes sure that you are rewarded for your labors. Yet at some point, and the point is very hazy and liable to move unexpectedly within that haze, composers find themselves in the most volatile free market scrumfest, negotiating with the fiercest of the fierce.
Rouse’s experience and observations reinforced certain points. Sometimes presenters are well able to meet composers’ requests (demands?) if the parties find themselves in direct negotiation regarding this grand rights fee. There is a greater chance for success if composers are aware of the presenters’ resources and, maybe more importantly, their flexibility. It’s part of the never-ending dance of the balance of self interest (not necessarily a bad thing) with that team spirit that allows us to get art to the masses. Like many composers today, Rouse stays involved in the production and performance of his music. Not only is it aesthetically healthy for a composer to do so, it is fiscally smart as well. With first-hand knowledge of the operation, it is much easier to negotiate a deal that is realistic.
How do composers in the marketplace and in their own lives, keep themselves viable, that is, creating the art they want to, and at the same time getting paid something for their efforts? The models that Steve Reich and Philip Glass gave us not only changed the landscape as far as notes were concerned, they reclaimed the hands-on role for the composer. Play what you write. Eat what you cook. A not-too-small fringe benefit is that the composer/performer gets back in the payroll line no matter how the royalty situation turns out.
Thanks to: Fran Richard at ASCAP, Ralph Jackson at BMI, Ed Harsh at Meet The Composer, Sue Klein (formerly of Boosey & Hawkes, Inc.), and Mikel Rouse in his living room.
Jack Vees is a composer/performer. His one act opera Feynman was performed at the Knitting Factory last December. He is also the Director of the Center for Studies in Music Technology at the Yale School of Music. But he is not an entertainment industry lawyer, nor does he play one on T.V.