A brief history of copyright and play licensing
In Shakespeare�s time, England had common law copyright: the author�s exclusive right to copy and distribute his creation lasted only until the work was published, at which point it entered the public domain. There was no performance copyright � anyone with a copy of the script could perform any play licensed by the Lord Chamberlain. If he hoped to make money on the work, the author had to make sure that his profit was maximized by the conditions of that first publication. That�s why Shakespeare was in no rush to publish his own works, and why theatre owners tried to prevent anyone else from publishing the plays they were producing. The fear of piracy joined with the scarcity of paper to establish the tradition of actors� �sides� � sheets that contained only each actor�s lines with often cryptic cues. No one saw the complete script except the author, the actor-manager, and the trusted keeper of the promptbook. Despite all precautions, piracy was rife � scribes smuggled pen and paper into the gallery to record the script in the Elizabethan equivalent of bootleg videos, and disgruntled actors reconstructed from memory scripts in which they had played, so the plays could be rushed into publication and onto other stages.
A century later, during the reign of Queen Anne, the English Parliament finally decided that common law copyright was not necessarily a good thing. Fearing the instant rush to the public domain, authors were holding new writing back from publication, sharing it only with a trusted private circle. As a result, new works of art and science were not finding their way to the public eye. The solution: Parliament established a statute of exclusive ownership for a limited period after publication. The rule simultaneously ensured that authors would continue to profit after their work was published and, once the period of ownership expired, that the public good would be enriched. So, in 1720 England had its first modern copyright law.
After the revolt of England�s American colonies in 1776, the drafters incorporated language from that first English statute into the intellectual property clause of our Constitution. In 1790, acting upon the authority of that clause, the new Congress passed the first U.S. copyright law. At that time, the limited period of ownership was fourteen years, with a possible additional fourteen upon re-registration. The Copyright Act of 1909 doubled both those periods, protecting a work for up to fifty-six years from the date of its first publication.
The Copyright Act of 1976 and the Sonny Bono Copyright Term Extension Act of 1998 further extended the limits of copyright ownership. In simplest terms, between now and December 31, 2018, anything first published on or after January 1, 1923, is probably protected by copyright (including revised, republished work that was originally published prior to 1923). The system in the United Kingdom and Europe, to which we are gradually converting, is easier to comprehend: the copyright expires seventy years after the death of the author.
The rise of theatrical publishers
When the middle class in Victorian England began to emerge, it discovered it had leisure time. For many, amateur theatricals were a popular diversion. In 1830 an entrepreneur named Samuel French had what turned out to be a brilliant and highly profitable idea: he would license from the authors of plays of proven popularity the rights both to publish (as cheaply as possible) acting editions of those plays, so that each actor could have a full script to work from, and to sub-license the performing rights for those plays to amateur groups and provincial professional companies, keeping a healthy commission from the royalties collected for the authors. (Or, alternatively, buy the play outright from the author and keep all the royalties for himself.)
Actually, as I learned from sources first encountered after publication of the print article, the more common practice in both the U.K. and the U.S. at the time French began his career was that the copyright on a play was owned by the management of the theater for which it was written � the author was an employee or independent contractor creating a work for hire, and held no residual rights once paid for his labor � so it was the theatrical managers with whom French would have negotiated, at least in the beginning. Fortunately for playwrights in the English speaking world, the Dublin-born actor/ playwright and eventually producer Dion Boucicault (circa 1820-1890) was hired by one of those British theatre managers to travel to Paris and attend the most popular theatrical successes there, with the idea of providing his employer with bootleg English translations for his theatre. While there, Boucicault learned that French playwrights actually owned the copyrights and collected the royalties on their own work, and he soon recognized that the introduction of this innovation into England would be a boon to playwrights like himself, if not necessarily to persons in his employer�s position.
Boucicault spread his revolutionary French idea on both sides of the Atlantic: he spent much time in the United States (to maintain his cover story that his works were written in collaboration with an American-born author, which made them eligible to be copyright-protected by simultaneous publication by performance in both the U.K. and the U.S., at a time when neither country was much inclined to recognize the copyrights owned by a citizen of the other � or any other country), and when he first came to these shores in 1853, there were as yet no dramatic copyright laws in America. Boucicault joined forces with American poet and playwright George Henry Boker (1823�1890) and playwright, novelist, photographer, and physician Robert Montgomery Bird (1806-1854) (whose own personal and professional association with the American actor/manager Edwin Forrest had ended in acrimony, along with Bird�s own career as a playwright, when it became clear that Forrest was using the lack of such laws to pay Bird far less that what Bird�s work � which included The Gladiator, in which Forrest had triumphed in London�s Drury Lane in 1836 � had been worth to Forrest) to lobby vigorously for eventual passage of the Dramatic Copyright Act of 1856, which served as a beginning, despite questions about its clarity and enforceability. Bringing musical compositions under the same rule with dramatic compositions in U.S. law would not happen until 1897.
By the time U.S. copyright law recognized British copyrights, and vice versa, Samuel French�s company had established offices in London, Toronto, and New York (and eventually Los Angeles as well), and had the power and prestige that allowed it to charge commissions as high as fifty percent of the royalties on some of the plays the company published and licensed. By the late 1800s, it represented most of the major playwrights of the English-speaking world (including Dion Boucicault). (Today the many authors represented by Samuel French range from Neil Simon and Jane Martin to Samuel Beckett and Agatha Christie.) The company�s play publisher/licensing agent model is almost universally followed in the field of non-musical plays. Two other play publishers founded in the nineteenth century � Baker�s Plays (1845) and Dramatic Publishing Company (1885) � are also still active, concentrating heavily on the school and community theatre market.
The licensing model for musicals was also shaped during the nineteenth century, beginning in the opera houses and music publishers of Europe. This model, used by music publishers for symphonic works and �grand� works such as ballets, operas, and operettas, has been adopted by most present-day musical theatre licensing houses. (Musicals are also considered �grand� works, in which the compositions are licensed as part of the dramatic whole.) In his book Giuseppe Verdi and Giovanni Ricordi with notes on Francesco Lucca: from Oberto to La Traviata (Garland Publishing, Inc., 1989, New York and London), author Luke Jensen explained the evolution. Giovanni Ricordi, founder of the publishing house, Casa Ricordi, which became Verdi�s publisher, and later Puccini�s, began his career in the very early years of the century as a music copyist for various opera houses.
Ricordi developed a rental library of manuscript scores and orchestral parts, and became a licensing agent for performing rights of various operas before opening a print shop to publish piano-vocal scores and libretti for sale. Most performance materials were kept in the library rather than being published. The American company M. Witmark & Sons, founded in 1870 (or 1886(?), according to information on the Website of the Tams-Witmark/Wisconsin Collection, housed in the Mills Music Library of the the University of Wisconsin�CMadison), followed this almost universal practice of having a print-for-sale and a rental library division, operating under the management of Isidore Witmark (1869-1941). The prominence of Witmark and the Witmark Music Library was cemented by their representing Victor Herbert, the composer who was to pre-World War I American operetta what Verdi was to nineteenth-century Italian opera (except that Verdi seemed to find better librettists). Meanwhile, in 1885 (according to the Tams-Witmark/Wisconsin Collection Website, but possibly in 1870, according to the Wikipedia entry on Tams-Witmark), Arthur W. Tams (1848-1927), founded his Music Library, which by 1923 was hailed as the largest circulating music library in the world. For many years, the Tams and Witmark libraries were intense and often litigious rivals, but in 1925 the Arthur W. Tams Music Library and the Isadore Witmark Music Library were merged and began doing business as the Tams-Witmark Music Library, Inc. Soon after that, Tams-Witmark licensed the first large high school production of a Broadway musical to James Monroe High School in New York City, which performed Reginald DeKoven's 1890 operetta Robin Hood (the score of which, and its composer, are best known today, if at all, for the once perenniel wedding chestnut, �Oh, Promise Me�).
In the years between the merger and the start of World War II, Tams-Witmark acquired licensing rights to works by George and Ira Gershwin and Cole Porter, as well as many works of Jerome Kern, including the Bolton, Wodehouse & Kern Princess Theatre shows, and even some co-authored by Oscar Hammerstein II, with the notable exception of Show Boat, revived in 1946 by the producing arm of the Rodgers & Hammerstein Organization, and since licensed by R&H�s licensing subsidiary..
Well into the twentieth century, while Tams-Witmark did very well licensing professional and semi-professional productions of operettas like Lehar�s perennially popular The Merry Widow, the school portion of the market catered to by the organization and its competitors mostly consisted of simplified versions of either Gilbert and Sullivan or Victor Herbert, or �school operettas� centered around historical characters like Miles Standish, Paul Revere, or Betsy Ross. This was because, despite the wonderful popular songs, most Broadway musicals of the teens, twenties, and thirties were built around star performers, and had books that were too silly and/or too risqu� for high school (and most community theatre) standards, while European operetta, aside from its possibly more wholesome content made vocal demands beyond the perceived capacity of the average high school (and many community theatre) performers. Tams-Witmark�s competitors included specialty divisions of �serious� music publishers, companies entirely devoted to this portion of the market, and the operetta divisions of play publishers like Samuel French.
Until the passage of the U.S. Copyright Act of 1976, �unpublished� rental parts, even those essential to the performance with full orchestra of works that had already passed into the public domain, such as Gilbert and Sullivan operettas, were potentially protected under common law copyright in perpetuity. The 1976 Act did away with common law copyright and set a date for the expiration of copyright on works created before 1978 but still unpublished. Even without copyright protection, the music publishers/ licensing houses that own and rent them can probably continue to protect works from unauthorized copying through �no copy� clauses in the rental agreements. The point is, rental income does not need to stop just because royalty income is no longer legally collectible.
As the middle of the twentieth century approached, changes in the theatrical marketplace helped create new players in the publishing/licensing field. In 1936, dissatisfaction with Samuel French�s policy of charging up to fifty percent in commissions prompted a group of Dramatist Guild playwrights and literary agents to form the Dramatists Play Service. The group (who included, initially, Robert E. Sherwood, George S. Kaufman, and Moss Hart, and later, Arthur Miller and Tennessee Williams) would own the company as shareholders, acting as both buyer and seller of publication and licensing rights. Agent shareholders of Dramatists would receive a pro rata share of the company�s profits based on the business they brought in. To meet this competition, Samuel French began to also offer commission sharing for authors� agents.
In the musical field the advent of a new genre during World War II both powerfully influenced the creation of new productions and revisions of older works for revival and created a new market for amateur licensing. The �musical play,� starting with the 1943 production of Rodgers and Hammerstein�s Oklahoma!, integrated a strong (and basically wholesome) serious/romantic operetta-like storyline with a popular score. Other shows that Rodgers and Hammerstein wrote, such as Carousel and South Pacific, or produced, like Irving Berlin�s Annie Get Your Gun and the 1946 revival of Show Boat, gave pre-sold hit status to family entertainment not beyond the skills of the advanced community or high school group. Both Tams-Witmark and Samuel French hoped to cultivate the new market.
The new musical theatre field was broad enough for individuals with highly successful shows to license for amateur production to enter the licensing/ publishing market as well. Both Rodgers and Hammerstein and Frank Loesser had already followed Irving Berlin�s example and started their own music publishing houses, Williamson Music (now part of the Rodgers & Hammerstein Organization) and Frank Music. Now they decided to cultivate the licensing field as well, founding, respectively, the Rodgers & Hammerstein Theatre Library (now Rodgers & Hammerstein Theatricals) in 1948, and Music Theatre International in 1952. The stables of these houses include some of the major warhorses of amateur musical production, both those created by the founders and those by other authors brought in later. Meanwhile, Tams-Witmark signed other musical theatre heavyweights such as Alan Jay Lerner and Frederick Loewe, Harold Arlen and E.Y. (�Yip�) Harburg, and Jerry Herman. Samuel French initially concentrated on procuring Off Broadway musical hits. Today, almost every major musical is licensed by one of these four organizations.
One of the most recent additions in the non-musical category is Broadway Play Publishing, Inc., founded in 1982 by Christopher Gould, former head of the musicals department at Samuel French. BPPI, now the third largest play publisher and licensing agency in New York, is primarily committed to contemporary playwrights. It represents such writers as Tony Kushner, Richard Nelson, and Eric Overmeyer, as well as works by the Reduced Shakespeare Company and George C. Wolfe. Among BPPI�s innovations are an on-line catalog and adjustable royalty fees.
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