The Roads to Riches: Publishing and Licensing

While the American theatre has been around longer than the United States, most publishing and licensing houses have only been around for less than 100 years. Samuel French established the first American publishing house in the early 1800s.

Throughout the nineteenth century, French dominated the publishing business with over 1,485 dramatic works in its catalogue by 1873, remaining the lone publisher until 1885 when the Dramatic Publishing Company entered the field. The two companies battled for dominance in the publishing world until 1936 when the Dramatists Play Service was established by a number of prominent playwrights and theatrical agents. Dramatists Play Service not only specialized in the publication of plays in what is now known as acting editions, but also handled the stock and amateur leasing rights of the works.

The Tams-Witmark Music Library Inc. came on the scene in 1925 after the merging of the Arthur W. Tams Music Library and the Witmark Music Library. Although we know the Tams-Witmark Music Library Inc. as one of the largest licensing houses for musicals, it originally only specialized in sheet music production. It was not until after World War II that Tams-Witmark brought musicals into their business.

Rodgers and Hammerstein took their abundant supply of original musicals and in the early 1940s created their own licensing house named, appropriately, the Rodgers and Hammerstein Organization. They have since expanded to include a multitude of titles created by other authors, composers, and lyricists. Since then, many other major players have joined the neighborhood.*

These houses are the major destinations for most dramatists. And, while their contracts will differ from one business to the next, most of them adhere to certain historical norms. These historical norms are the negotiated result of market forces mostly beyond the control of French, Dramatic Publishing Co., and others.

* In 2018 Concord Music announced the formation of Concord Theatricals which acquired the professional and amateur theatrical rights of Rodgers and Hammerstein, Tams-Witmark, and Samuel French

Publishing often invokes images of bookstores and hardcover novels. This is not the case for theatrical publishing houses. Most publishing contracts only include publication of an “acting edition” of your show. The “acting edition” includes a prop list and set de- signs, which are used to help a director and actors present the work on a live stage. It is used to garner interest in your show from potential licensees (theatres or schools) who may wish to produce it.

A standard agreement contains both rights for live performances and a section on licensing and the rights to publish your work. For a portion of the licensing fee, a publishing house will act as your licensing agent, processing requests by various theatres, schools, camps, church groups, etc. who wish to perform your show. Hence, the publishing house is able to shift between the publishing and licensing lane, as the need arises. (In a previous article “Sharing Your Sweet Success” Sep/Oct 2007), we outlined the different percentage structures proffered by various houses.)

A cast is paid a salary equal to a living wage during their participation in the production (such cast members are generally members of a union like Actors Equity). Amateur performances are those in which the majority of the cast is not paid a salary equal to a living wage during their participation in the production. In other words, professional actors usually participate in stock productions, while schoolchildren and the butcher from down the street participate in amateur productions (not to say that the butch- er doesn’t have a beautiful voice).

The Guild’s Approved Production Contract contains detailed definitions of these terms that reflect the industry standards.

The first possible detour on your road to riches in- volves the rights assigned to the publisher in your contract. First and foremost, do not assign the copyright of your work to your publisher. The work that you have created belongs to you. By assigning the copyright to the publisher, you are signing away your future interest in your work. In the contract, there should be a clause explicitly stating that you will retain all present and future ownership of the copyright in your play.

Every copy of your play that is published should include a copyright notice. By having a notice of your copyright in every copy of your play, you are indicating to the world that your work is not in the “public domain.”

Next, ensure that there is a clause in your contract that requires the publisher to actually publish and catalogue your work! If your work has not been published and included in all catalogues, then all rights should automatically revert to the Author. An automatic reversion of rights is one form of termination. In addition to this, every Publishing/Licensing contract should have a separate termination clause. The creation of a termination clause allows you to opt out of an agreement if your play has not been printed or catalogued, if there had been a nonpayment of royalties, or because of other typical contingencies. As stated before, ensure that upon termination of the agreement, all the rights previously given to the publisher immediately revert back to you.

As you travel down the road, ready to pop the clutch and see what your work is really made of, a major attraction appears: theatres licensed to produce your show. Because the publisher is acting as your licensing agent, be sure they require presenters of your work to adhere to industry standards.

It is imperative that you do not allow the theatre to alter your finished product. The Publisher/Licensor should include a script approval clause in their licensing contract with the theatre. It is your show; only you can uphold its artistic integrity.

As long as you are upholding your work’s integrity, you might as well make sure you get the proper billing. A clause in the contract should require that a theatre presenting your work agrees to bill the play and author in all publicity.

The road to riches is no “joy ride,” but travels through a landscape filled with a plethora of contracts from a surfeit of publishing and licensing houses set to confound even the sharpest mind. You must remain alert and keep both hands on the wheel. Sometimes even one small wrong turn can take you out of the road to riches and place you squarely in the junkheap.

Even if you think you are ready to proceed without the Guild’s help, maybe you should send us a quick e-mail just to be sure.