Grand rights licenses are licenses that allow the licensee to publicly perform copyrighted musical works in a dramatic setting. A "dramatic performance" is generally defined as "a performance of a musical composition that is woven into and carries forward a definite plot and its accompanying action.” [1] Classic examples of dramatic performances that require grand rights licensing include:
- Musicals and plays
- Ballets
- Operas
- Certain musical revues
The defining characteristic of a dramatic performance is the presence of a narrative or plot, though the performance of a single song can meet this standard.
My performance contains choreography, scenery, and costuming. Does that mean my performance is dramatic?
No. Merely using unrelated scenery and costuming does not make a performance dramatic. [2] Likewise, "[a] choreographic work devoid of story or content and mere ballroom and social dances similarly do not constitute dramatic works." [3] On the other hand, a performance can be dramatic even if it does not use any scenery, costumes, dialogue, or choreography. [4]
However, the performance of a single copyrighted musical work taken from a movie, musical, ballet, or opera in which the performers wear costuming, use scenery, and/or incorporate dialogue that invokes the movie, musical, ballet, or opera might constitute a dramatic performance or otherwise exceed the scope of a PRO license. [5]
What matters is that there is a narrative or plot within the performance.
If I perform music that is used in a musical, ballet, or opera without costuming, scenery, or dialogue, do I still require grand rights licensing?
It depends. In general, the public performance of most or all of the copyrighted songs used in a dramatic work (such as a musical, ballet, or opera) can constitute a dramatic performance even when no costuming, scenery, or dialogue are used. [6] In one case, the court found that the performance of 20 out of 23 songs from Jesus Christ Superstar constituted a dramatic performance, even though no costuming, scenery, or dialogue were used, because the performance of 20 of the songs in sequence constituted the retelling of the entire opera because the story is told "by the music and lyrics." [6]
Aren't schools exempt from public performance licensing?
Dramatic public performances of musical works by K-12 students are not exempt under 17 U.S.C. § 110(4) from requiring public performance licensing. Only performances of nondramatic musical works are exempt.
Most school theater departments are familiar with the need to obtain grant rights licensing for productions and routinely license such rights for musicals from organizations like Music Theater International ("MTI"). Ensembles can apply for dramatic licensing from publishers directly or via Tresóna by submitting an "adaptive dramatic" license request.
Does public performance licensing from ASCAP, BMI, SESAC, or GMR cover dramatic public performances?
No. Much like the exemption contained in 17 U.S.C. § 110(4), public performance licensing from ASCAP, BMI, SESAC, and GMR only cover public performances of nondramatic musical works. Grand rights licensing must be obtained directly from the music publisher or its licensing agent.
DISCLAIMER: These materials are being provided for informational purposes and should not be used or interpreted as legal advice. Please consult independent legal counsel to address any specific legal issues you may have or if you want additional music licensing advice. Using these materials does not establish an attorney-client relationship.
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[1] B Kohn, Kohn on Music Licensing (5th Edn. 2019) at 1315-1316.
[2] 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.06[A] (Matthew Bender ed., 2020) (ebook); April Productions Inc. v. Strand Enterprises, Inc., 221 F.2d 292, 295 (2d Cir. 1955) (singing musical works during interludes of a production devoid of a story line but featuring themed costuming and scenery did not constitute dramatic performance).
[3] 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.06[A] (Matthew Bender ed., 2020) (ebook).
[4] 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.06[A] (Matthew Bender ed., 2020) (ebook).
[5] Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 511-512 (9th Cir. 1985) (performance of copyrighted musical work by singers that was originally performed in a movie, where singers dressed in costumes to recreate scene from movie, and the production made use of the locale, scenery, props, and dance style of the kind used in the movie, constituted a dramatic performance that exceeded the scope of ASCAP license).
[6] Robert Stigwood Group Limited v. Sperber, 457 F.2d 50, 51-56 (2d Cir. 1972), rev'd on other grounds, Salinger v. Colting, 607 F.3d 68, 75 (2d Cir. 2010) (addressing standards for obtaining preliminary injunctions).