Copyright involves a “bundle of rights” that are reserved for the author; one of which is the right to perform the copyrighted work publicly. However, understanding public performance rights in the context of music can be complicated because there are two different types of rights that can be licensed. Choosing what type of license is right for you will depend on how the music will be used.
If someone wants to license music for public nondramatic performances, a “small rights” license is needed. While “nondramatic” performance is not defined in statutory law, generally, it refers to situations where the music is not used to tell a story or as part of a plot. Examples of when small rights are sufficient to include a live or recorded performance of music in a public venue (such as a restaurant with the requisite seating capacity or wedding hall) and background music performed as part of a movie or other television program (when presented in a movie theater or bar). The latter typically only counts as a nondramatic context if the characters in the story do not perform or hear the music themselves. Also, when used in connection with an audio-visual work, the presenter of the program needs a small rights license even if the filmmakers already acquired a sync license.
Small rights to a work are typically obtained through a “blanket license” from the major performing rights organizations (PROs), which include American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI), Society of European Stage Authors and Composers (SESAC), and Global Music Rights (GMR). A blanket license allows the licensee to play any song from the respective PRO’s entire catalog, an unlimited amount of times. The price for the license varies primarily based on the size/capacity of the venue and how often the venue hosts music.
A small rights license is not sufficient if the intent is to publicly perform the copyrighted music as part of a dramatic piece. Instead, a “grand rights license” is needed, which allows for music to be used in the context of a narrative. For example, music used in a Broadway musical, ballet, or opera or otherwise taking musical works and adding dance, costumes, and other visual elements to create a dramatic production.
Unlike with a small rights license, a grand rights license is only available from the copyright holder, which may be the composer, publisher, or other licensing agent for the work. In addition, whereas a licensee of small rights pays one fee for unlimited use, a grand rights license requires payment every time the music is used. The permissions and costs vary depending on how much of an individual song is in the dramatic production and for how long. These factors make grand rights licenses potentially very complicated, time-consuming, and expensive to obtain.
Small Rights vs Grand Rights
The context in which the music was originally written does not usually factor into the analysis when determining what kind of public performance license is appropriate for a given use. Still, making the determination can be a balancing act. For example, a song that was originally written as part of a narrative for a musical theatre piece can be performed out of context of that show, as a standalone performance as part of a concert under a small rights license. But if that concert included too many songs from the same show and the argument can be made that the concert is actually a “condensed” version of the show, a grand rights license will be required.
On the other hand, one could create a concert comprised of 80’s hairband music, all of which was written independently and not in the context of a narrative under a small rights license. However, once you start adding a narrative throughline that connects the music and uses the songs to move the plot forward, you get the musical Rock of Ages, which certainly would require a grand rights license.
There are many variations on how music can be publicly performed and distinctions between small and grand rights may not be obvious. When in doubt, best practice is to consult an attorney for guidance to avoid a potential copyright infringement action.
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