Guide to Royalty Negotiations

by Lael J. Woodbury

This article first appeared in the September-October 1980 issue of the American Theatre Association's Theatre News, Volume XII, Number 10 at page 4. At the time, Dr. Woodbury was dean of the College of Fine Arts and Communications at Brigham Young University, where he later became Professor Emeritus. Both the publication and the organization that published it are no longer in existance.

The United States Copyright Law is a writer's law, and properly so, as a dramatic work is the author's property. Failure to understand and work within that law costs time and money. However, to avoid litigation we must determine availability and apply for a license prior to production. In fact, we must acquire production rights even before we announce that we intend to stage a work. The principals and practices noted below will simplify that negotiation process.

Be Smart

Some publisher-lessors are brutally rude and marginally honest. They manipulate charges, agreements and materials. And because they have exclusive control of a work's production rights, it's wise to leave plenty of room for negotiation and reaction. They hold most of the cards, but not all of them. Usually we choose the work we want to produce, and then contact its lessor. But because of the uneven quality of cost, service and courtesy, why not first choose a likeable lessor, and then select a product he offers. Why patronize a firm that doesn't give satisfaction?

Plan Ahead

This is the single most grievous and costly negotiation mistake. Because of the frequent need for more information, and because of capricious, inefficient mail service, extended negotiations are common. Inquiries require only a two day turnaround at Samuel French and Music Theatre International. but they may have committed a work to other producers -- sometimes in your area -- and therefore it may be unavailable.

The law does not permit us to announce our intent to produce until we have the rights. Because our announcements and the printing of season books require early press deadlines, it is wise to begin negotiations a year in advance.

It is usually impossible to get manuscripts and musical scores earlier than eight weeks before performance. Ordinarily, you cannot buy them. The logistics and costs of shelving discourage publishers from maintaining large reserves.

State the Facts

I've seen letters of inquiry from ATA members that don't even mention the name of the play or musical, the proposed dates of production, the exact musical materials wanted (such as the orchestrations needed), or even the name or address of the producing company. One producer sent a check for $252.00 with no information about its purpose. One prominent American theatre company wrote: "We will present four one-act plays by Tennessee Williams. Please send royalty information." (Even the professional manager forgot to specify the plays' titles, intended production dates, place and number of performances. And without complete information, the lessor is apt to quote a higher rate.)

Negotiate Reductions

Reductions are possible, but not automatic. There's no reason for the publisher to quote first and second inquiry quotes as though playing a game. Usually he or she is a fair and well meaning person, and if you have cause, he'll work with you. He'll want you to get established -- that means more business for him. And he understands that some companies have unique pricing systems, local customs or circumstances. But don't expect concessions forever. And don't request, as some do, reductions in your first letter -- before receiving the quote and knowing whether it is too high.

Tell the Truth

Not everyone does. Major publishers get several hundred inquiries each day, and they develop a skeptical sense about descriptions of house size, admission prices, and attending percentages.

Be Fair

Some producers present performances without even pretending to pay for the right -- a practice which tarnishes each of us. (Eventually we'll establish our own ethical standards so that others won't have to.)

Other examples? It is unlawful without permission to stage scenes, songs and dances taken from copyrighted works. Such permission is virtually impossible to get. From the author's viewpoint, these performances erode the value of his work.

It's unlawful to stage scene, songs, or dances on radio or television, or to tape them even to promote sales. Broadcasting and taping rights always are negotiated separately from performance rights, for their high values affect later movie, home screen, home box office, and videocassette agreements.

Return Materials Promptly

Often others have contracted to use them when your production closes, and literally can't begin rehearsing without them.

Except one or two business monsters, publisher-lessors are, in my experience, honest people who run legitimate businesses giving worthy service. They see themselves as agents of the playwright, to whom most of the money goes. They are human and they make human errors. But they issue thousands of licenses each year, unlike most theatre producers, who negotiate only a few. They know their business, and they train their people. It is to our mutual advantage to follow effective and lawful practices.