Obtaining rights for the use of copyright music in theatre productions, both in the US and in the UK, can be a tortuous task. Increasingly, major labels want to negotiate on a per-show basis, but their frame of reference is often limited to film or television, and their awareness of the state of most theatre companies’ financial affairs is virtually nil.

I was once involved in a show about soccer called Elton John’s Glasses, which involved a number of the great man’s songs as scene-drop music. We had to negotiate directly, rather than using the usual channels in the UK provided by The Performing Rights Society, to sort out usage fees, so I set out to make sure we had permission from the correct people and almost immediately discovered that obtaining said rights was going to be tricky. No one seemed to know who actually owned the rights: Small companies had been taken over by large companies who had merged with even bigger companies, and the trail finally ended up, after much telephoning and research, at the office of a subsidiary of one of the majors. My conversation went like this:

"Hello, I’d like to discuss using Elton John’s music in a theatrical production."

"We don’t handle Elton John’s stuff."

"You do. I’ve checked very thoroughly."

"I’m sure we don’t. You know, I’d have been told…"

"Your company acquired the rights sometime last week when you bought up the last lot who had them."

"Really? Oh, if you say so, then I suppose it’s okay. What would you like?"

I outlined the tracks we wanted to use and was eventually told that it would cost about $60 for each 30 seconds or part thereof, per song, per performance. With 10 titles and some extracts lasting more than a minute, a quick calculation revealed that dear old Reg (he’d not yet been dubbed "Sir Elton" at that point) was going to be earning somewhere in the region of $10,000 dollars a week and that the show’s soundtrack would have to be abandoned in its present form. I called the office again to speak to the man in charge and outlined my problem. He said he’d think about it and call me back. I sat by the phone and waited for his call. When it came, he said, "How about $100 a week?" "For each song?" I asked. "For the lot," he replied. And thus the deal was done, persistence paying off, in that case.

There was a less happy outcome when we wanted to use a couple of lines from "No Strings" from Walt Disney’s Pinocchio. The UK rights holders demanded a huge amount of money, and extra when the show toured in the US, and refused to budge, despite my insistence that the song would be cut if they wouldn’t compromise. A firm "no" was the reply and, as predicted, the director, given the choice of using the song or having scenery, cut the script reference.

There are ways around some of these problems, of course. In the same show, the director had a scene that echoed a section in Apocalypse Now, with the instrumental opening from The Doors’ "Riders On The Storm" accompanying a scene set on a jungle river, but permission to use the piece was refused. In this case, the director really wanted to keep the same feel, so an evening with a sequencer and some appropriate samples gave birth to "Spiders In The Dorm" by a band called The Floors (taken from the album The Floors Get Laid In Vegas), which took its place in the show almost unnoticed. Similarly, many years ago, I recall that sound designer and composer Rob Milburn wrote a piece as background music for a scene set in an unnamed theme park called "It’s A Teeny, Tiny World" which, frankly, I found rather less annoying than the theme tune to which it paid homage.

There can be other roadblocks when using music in a theatre production, unless you have a great deal of money or patience. The estates of various deceased performers are notoriously touchy about how their late charges’ music is used and will often demand script approval before permission is granted, but the living can also cause problems. When David Leveaux revived Tom Stoppard’s brilliant play The Real Thing at London’s Donmar Warehouse, we had to get clearance not only for the scene change music, but also for a section of "You’ve Lost That Loving Feeling" that a character sings during the course of the action. Given that the show had been produced many times in the past with no problems, we assumed that this would be a formality, but back came the answer that, because of an ongoing dispute between two of the writers and the third over distribution of royalties, we couldn’t use the song. The final, definitive refusal came through just before the first preview, along with a note to say that there might well be a lawyer in attendance to make sure it wasn’t used.

A memory stirred somewhere in the 1960s music section of my brain, and I was able to suggest "The Sun Ain’t Gonna Shine Any More" by The Walker Brothers, a song with a similar sentiment and arrangement and from the same period. A last-minute phone call confirmed that the song was available for use, Sir Tom rewrote the relevant part of the script, the actor learned the music, and we opened with a fully legal playlist.

The same cannot be said of another show, nameless to protect the guilty, which started in a small theatre and became a huge hit in London, on Broadway, and around the world. In the first flush of its London success, many celebrities came to see the show, including the widow and owner of the music rights of a famous composer. She was entertained by the company manager during the intermission, and the next day, he received a note telling him how much she’d enjoyed the show, but that she’d checked with her lawyers, and they couldn’t find any sign of a request to use a section of her late husband’s music as part of the action. Could he call them and sort it out? Bemused, he called the lawyers and was told that, as one of the characters whistled the piece while in the shower—an off-stage sound effect, in fact—royalties, and quite hefty royalties, were due. The company manager contacted the producer, who in turn contacted the originating theatre and who then discovered, to his horror, that none of the music included in the show by the original sound designer (in reality, an accommodating chap in a local radio station) had been cleared for use in the show and, indeed, most of it was so-called library, or needle-drop music, attracting large per-performance payments.

That was when my phone began to ring with a request to sort out the mess as quickly as possible. Luckily, I was able to source alternatives and replace all the offending pieces in a couple of days and provide a whistle-free shower recording to replace the one containing the offending siffleur. Ruffled legal feathers were subsequently smoothed to everyone’s satisfaction, and a beautiful morning was enjoyed on stage minus the musical accompaniment.

That case serves as a salutary warning that all music used in a show, whether hummed, whistled, sung, gargled, or performed à Le Pétomane, the famous French flatulist, must be fully cleared and licensed before it gets before the paying public.

It’s something that should be drummed into every playwright, producer, and sound designer. When I get a new script that contains particular musical pieces, or even quotes lyrics from songs, I call the producer and check that the author has copyright clearance for the material. In 90% of cases, the answer is no, which usually leads either to financial panic or hurried rewriting. One playwright of my acquaintance scored a double whammy by including lyrics from Oasis and Bob Dylan in the same play without getting clearances—not a good idea.

The playwright Peter Shaffer tells a story about problems that can be encountered when trying to clear copyright on music. His agent was called by a somewhat harassed American film company account executive who was trying to finalize copyright clearances on some movie and, having dealt with the agent on the movie version of Shaffer’s Amadeus, was calling him for help. According to Shaffer, the conversation went something like this:

"Oh, hi. Sorry to call you, but I know you’re wised up on classical music, and I’m having a problem locating the composer of one of the pieces we’re using in a movie and wondered if you could help?"

"I’ll do my best; what’s the name?"

"Oh, just a minute, I have it written down somewhere, Albie something… yeah, here it is, some Italian guy called Albie Noni. ASCAP can’t place him. Have you heard of him?"

"Albinoni? Oh yes, of course I know him."

"Great, we need to pay him usage fees. Do you happen to know who his agent is?"

"This is your lucky day; look no further. I represent Mr. Albinoni. Please send his royalty payments to me."

At the time of writing, I’m working on a show where the author has used one line—eight words—of a current pop song in the play but failed to obtain the necessary rights clearance when the show was first produced in an out-of-town venue in the US. As the show is now being presented here in the UK, we do have to obtain clearance, and the rights holders have just responded with a payment demand of $12,500. You have been warned.

John Leonard is an award-winning designer who has been working in theatre sound for 40 years. In his spare time, he records anything that makes an interesting noise in high-definition surround sound. Live Design readers can get his sound effects collections at a 50% discount by using discount code BSMC50 at www.johnleonard.co.uk/immersive.html.