Real People and Musical Scores

Real People

Using real people in your fiction or playwriting can throw you into a truly tricky environment.  Generally, if the real person you are using as a character is no longer alive, you’re off the hook.  However, this doesn’t mean that you still can’t be sued (of course). One of the stickier points with regard to using a real person, living or deceased, has to do with what are called “publicity rights” or the Right of Publicity. These rights concern the property right that any person exercises over his/her public image.  As a rule, it seems, the intent of using a public figure’s image or likeness has to be purely for commercial purposes in order for a Right of Publicity suit to work. This is to say, that using a real person in a play or fiction is an artistic use of a person and can be held to be an act of speech, which is protected by the First Amendment–which trumps the Right of Publicity. However, if you’re writing copy for a radio advertisement that uses “Heeeeerrre’s Johnny!” as one of the lines, you likely have used the late Johnny Carson’s Right of Publicity, and, as it is a property right, lives beyond his death and his family/estate can sue you for the use of it.

The Right of Publicity is a property right in many states, and the enforcement is left to the statutory definitions passed in the legislature.  The Right of Publicity is not a federal statute, nor is there any such thing as a privacy right or a right of privacy to which to point (legal fiction).  See Griswold v. Connecticut; and Roe v. Wade.

Beyond the question of the Right of Publicity is the question of defamation. There are several factors that must be considered when determining if there is defamation:

• Statement must be untrue
• published to 3 parties (publication)
• must related to a living person (identification)
• lower the reputation of the person (damages)
• knowledge of untruthfulness (malice)

Note that defamation can also apply to a corporation for all of you activist, anti-corporation playwrights out there. 

There is also a thing called defamation per se (false statements that are immediately considered harmful)–saying that an accountant is a thief; saying that a love rival has an STD; suggesting that someone engages in criminal activity; etc.

For clarification (and the record) libel and slander are forms of defamation (libel is published; slander is spoken).

In the talk given by Sevush and Faux, Faux stated adamantly that “dead is good”; that there is no libel or invasion of privacy for deceased people.  Again, you would have to consult the intent and purpose of the work to determine if Right of Publicity concerns rise to the surface.

With regard to well-known or public figures, the so-called “public figure doctrine” applies (from which the phrase “absence of malice” originates). This doctrine states that “prominent public persons must prove actual malice on the part of the news media in order to prevail in a libel lawsuit. Actual malice is the knowledge of falsity or reckless disregard of whether a statement is true or false.” citation So, you can feel  free to use a public figure in your play, but you had better be certain that your intention is not malicious and that your assertions are absolutely true or are likely true given the inference of certain verifiable facts.  That being said, Sevush pointed to a growing trend amongst high-paid lawyers to engage in what is called “venue shopping” for suits.  For instance, the United Kingdom as a far lower threshold for proving defamation than does the United States, so lawyers might sue you in the UK, get the ruling they want, and then seek to have the ruling imposed in the United States. From what Sevush and Faux stated there are efforts underway in the US to stop this sort of activity from occurring; as it undermines US law.

According to Faux and Sevush, these factors regarding Defamation and Right of Publicity make themselves pertinent to you whenever you license a play to a producer.  That is, you often must sign a statement to the effect that you “warrant and represent” that you own the rights to whatever it is you’re publishing or licensing for performance. The contract might also make you “warrant and represent” that there is nothing defamatory in your work.  Sevush cautioned that playwrights should not make “over-broad declarations” in any contract that they sign–nor should you be forced to–for instance, that your play is not obscene.  Sevush noted that obscenity is decided locally and producer has to decide what he/she/they want to produce and where to produce it–NOT THE PLAYWRIGHT.

Again, the discussion of the Rights of Publicity came up, with a few relevant past cases being highlighted — celebrity (pecuniary, name/likeness for commercial purpose)

• vannah white/
• johnny carson and the portable toilet
• tony twist (doe v tci cablevision)

Often the contract that you sign with a producer can be accompanied by E&O Insurance, short for errors and omissions.  Faux and Sevush encouraged that you should ensure that you are included on this insurance policy if a producer gets it.

Found Scores

Should you use music in your play?  If you are, chances point to the fact that you should get permission to do so.

There are several places that you can go to license music:

• ASCAP
• SESAC
• Harry Fox
• BMI
• Warner/Chappell

When it comes to licensing there are small rights and there are grand rights.  Here is a link to a website that outlines some of the rights that pertain to music and performance. According to the website I link to above, small rights are called “nondramatic performance rights;” and grand rights are called “dramatic performance rights”.  Unfortunately, that sounds clearer than it is.  For instance, simply using the song in a play is not in-and-of-itself the “dramatization” of the song, and so may only require “small rights”–as a song is not inherently dramatic.  If, however, you are “dramatizing” the song, you will need to get “grand rights”.  So, if for some reason you decided to make a play out of the song “Me and Bobby McGee” you would have to get “grand rights.”  Grand rights are usually held by the writer of the song.

Faux and Sevush pointed to ASCAP, BMI, and SESAC for small rights.  Faux and Sevush also noted that grand rights can pertain to the whole of a work — but might also qualify if you are using music to advance the plot or character development in your play. Regardless, they both note that you should assume that you should have to get permission.

Grand rights are what playwrights own with regard to their script (use of songs in a narrative or dramatic way).

Sevush and Faux also discussed parody (fair use, valuable form of comment and criticism) on the subject that is being discussed. They pointed to the use of Roy Orbison’s song “Pretty Woman” by 2 Live Crew.

Parody/Satire Distinction

Parody is directly making fun of one thing, but Satire is using one thing to comment on or make fun of something else (Dr Seuss / OJ Case)

Licensing Music for Your Play

Music should be licensed by the producer.  Sevush was careful to point out that if you, as a playwright, are indicating the use of music in your play that you should note the following distinction:

• Use the words, "and then a song like comes on the radio…"  producer pays
• Use the words, "and then Born to Run by Bruce…" comes on the radio playwright pays

One question that I had, which I didn’t get to ask, is what happens when you contact one of these companies on multiple occasions and get no response?  For my part, in my most recent play Patterns, I went right ahead and used the music.  I figured, if some music publisher made a stink about it, I had the multiple unanswered emails to demonstrate that I had made an effort.

DIY Conference

Went to the 14th Street Theatre at PlayhouseSquare yesterday for another fantastic day-long Dramatists Guild conference put on by Faye Sholiton, Cleveland Regional Rep, and the wonderful people from DG.

Both Roland Tec, Director of Membership for the Dramatists Guild of America and David Faux, Director of Business Affairs for the Dramatists Guild of America were in from New York to speak about issues relevant to the careers of playwrights: empowerment, self-production, taking the bull by the horns, artistic integrity, ownership of intellectual property, subsidiary rights and royalties, and much more. The space for the event was very generously provided by PlayhouseSquare, and Linda Jackson, Community Engagement & Education Program Manager for PlayhouseSquare was present to talk with us briefly and discuss Launch, an artistic residency program at PlayhouseSquare.

Roland Tec

First, Roland spent around an hour-and-a-half discussing the playwright as producer, including the topics of money and budgets, project oversight, organization, hiring and firing, contracts, and marketing and promotion.

For Tec, as soon as you (the playwright) begin discussing a project with others you are either moving the project forward or moving it back; that is, you’re getting a sense as to whether it is ready to be brought into the public sphere or not. Furthermore, for Tec, as soon as you gather people together to read your script you are engaged in the process of producing your play: even if as Tec says, it’s just as simple as inviting people over for lasagna and then having a read through.

In discussing the playwright as producer topics mentioned above, Tec noted that it is rare to find all the qualities that you need in one person; that is, it’s rare to find a person who can gather and motivate people and who can organize, balance a spreadsheet, etc Tec advised that if you can find such a person that you hold on to him or her for dear life.

For Tec, no production is produced by a producer — there must be a team of people. And to this end, it is crucial to get out and see other people’s work and to participate in a community. That in order to produce work you need to have a community of people to support you.

Producing a work is a monumental task. To this end Tec provided practical advice:

1. Gather people
2. Have a notebook for the project
3. Every note on every conversation should be in the notebook, for example:
• I called actor A and he will be out of town for two months and be back in June; or
• notes on who showed up to your reading, who acted in the reading, who read parts, is the actor right for the role? Notes on how each person did.
4. Every conversation moves the project forward or moves it back; pulling back is an example (often) of self-deprecation–i.e. not giving yourself enough credit for what you’ve done. But it can also be doing productive versus unproductive things. Example…

Tec provided a rule about productive versus unproductive communications which he learned “from the guy who brought Pedro Almodovar to America”–**Correction**Tec didn’t say and I have no idea who this person is **but now I do, and so do you, dear reader, because Roland was good enough to comment below**. The rule is that you must include all relevant information in your requests. Again:

Rule: you must include all relevant information in your requests.

It seems very basic, almost comic, but the reality is that we all do it all the time (ineffective communication) and the result can be that we’re asking someone else to do the work that we did not, or fill in the pieces of information that we left out. To this end, I’ll provide the example that Tec provided:

Counter-productive email: “Hey Joe, Just a reminder that we’ll need sides for the auditions next week. Thanks, Roland.”

Productive email: “Hey Joe, Please make sure we have at least 12 copies of all sides for the auditions next Tuesday, November 8th from 10am – 6pm at Ripley Grier Studios, 580 Eighth Avenue, 12th floor. To recap, the sides we agreed upon are: For Role A: pp 2-5; For Role B: pp. 45-49 + 88-89; For Role C: pp. 3-7 + pp. 18-21. Make sure all copies are collated and stapled and printed, single-sided, with PROPERTY ACME PRODUCTION COMPANY as a header. Thanks! And see you at 9:30pm for the setup. Cal my cell if you have any questions: 555-555-1234. Roland.”

You get the idea. In the first case, Joe is going to have to follow up with all sorts of questions: how many copies, single sided versus double, etc. In the second case the answers are provided, as much as possible, in the first email.

Clarify Your Goals

If you do a reading: are you trying to get a sense of the piece? Trying to find out what needs fixed? Find out who’s on board or interested?

Need A Producing Partner

You will need a director or actor, fellow playwright, etc. Particularly with new work. At some point the piece must be fixed (honed/refined) and this takes a critical eye. Simultaneously, there must be a cheerleader for the project–a champion for your show or what you’re doing. These two people cannot be the same person. That is, the person who is offering critical insight into the piece cannot be the person out saying “hurrah” for it.

Budget

According to Tec, a budget is a living breathing organism. It is a snapshot of your production TODAY. Reality on the ground: TODAY. For instance, rent costs change–so they may not be the same next month as you budgeted for today. Tec provided a sample budget which I can scan later as a demonstration. The point of the budget example is to show that a budget will tell a story. If you look at the proposed budget for a project and the actual budget for a project, you will see as story told in numbers that includes: assumptions, mistakes, discrepancies, opportunities, setbacks, etc.

A budget is a guestimate and it will change. It should be visited (re-visited) every week. A corollary questions is: How can we squeeze more for less? How much can you get for how little? Tec told the story of how a theater group he was working with got the use of a $2,000 light kit donated for $150 and later he heard the manager asking if it could be $0 instead. Tec says he thought, “that takes a lot of nerve”… but the reality is, again, how much can you get for how little?

Tec notest that sometimes you will simply not have the time to seek out donations (as this can take time). Same holds with volunteers–there is a plus and minus to using them. When you pay a professional to do something, he or she will do what is expected of him/her (theoretically) and the job will get done. When you hand off something to a volunteer, you might not get what you need. This brings up a point I heard many years ago when working with volunteers you should hold them to the same standard as paid employees–that you have certain expectations and they must be met, else you’ll fire them. And you can have to fire volunteers.

According to Tec, you must be clear about your expectations and that they are clearly defined when working with others. For example, a theater had a paid for the rental of a light kit and the company brought it out and installed it. However, for whatever reason they did not come back and take the kit down–but still expected it to be returned on time, etc. That is something that was just assumed when it should have been clearly defined. (i.e. who would strike)

This led to a side conversation, some notes follow:

Tec: If someone is doing your play and for whatever reason the company cannot pay you, ask for $1. If the company will not give you $1 then you know something about that company. Everyone who works on a play should have a contract. An example of something being clearly defined would be “Actors agree to speak the lines of the script.” Again, it seems absurd, but you can find yourself in a place where there is disagreement or where an actor is ad libbing, etc. Clear lines in a contract ensure that you can cancel the contract if things aren’t working out.

Faye Sholiton provided examples from a friend of hers in Los Angeles who has, over her playwriting years, had some egregious examples of things that have gone wrong or were unexpected. She may provide examples from this list later. Ask if there are hidden charges or see if you can discover any hidden fees–for instance, the LA playwright had a $400 computer repair charged to her in a production.

Another example is that a theater donated the space for a production, but the production had to use their house manager who was a union house manager and had to pay her salary for the productions.

Considerations of the space: example is that a space was identified for use in production in the summer and when the performance took place in the winter there was a dreadful knocking and banging of heat pipes. This was not something that was anticipated in the initial consideration. So, Tec gave the admonition to ask about pipes in winter, subways, etc.

Side note: when you are producing a piece in a certain space it is wise for the production to seek ads from the businesses in the area; Tec noted that the businesses are, in fact, buying good will, in that the production draws people who will use the businesses around the production. Tec also noted that this effort (ads) is done the “good old fashioned way”–face-to-face. He further suggested that there should be a synergy between the space and the piece–don’t do your play in a comedy club and expect the audience to take it seriously (if you play is highly dramatic or whatever).

Tec noted that contracts are not about suing people. They are about clear communication and to document expectations. In the end they are documents that should ensure a certain amount of civility in how people work with one another.

Tec: 10% of the total budget should be contingency. Someone in the audience suggested that he viewed it not as contingency, but opportunity $$.

Budget Worksheet

Roland distributed a Budget Worksheet that I can add to the site. It includes broad categories that one would expect in a budget for nonprofits, for instance, in Income there is fundraisers, grants, sponsorships, ad sales in the program, and even merchandise and concessions. There is also a formula that Tec uses to estimate Box Office sales at 40% capacity:

# of seats x # of performances x price of tickets x .4 = projected revenues for shows

Tec provided some good examples and ideas, for instance, when doing a fundraiser find a person who comes to your theater and supports your theater who has a fabulous home and who will handle the food and drinks, etc. If possible, find a friend who is a chef or starting a catering business to prepare the food; this person can leave out business cards, etc., to get his/her business off the ground.

Tec strongly advised that you NOT read the script at a fundraiser. He’s been to fundraisers where that has happened.

You’ll also need someone to be the “speaker” someone who is upbeat and can do an ask. Along these lines, when it comes to the ask, Tec offered a *secret*: always come to a donor with a number in your head and always speak the ask and then shut up. Let the donor fill in the silence. “We were thinking that yours support would be $25,000.” Then you shut up. Tec says that people always have a tendency to take away from what they ask, so simply shutting your mouth is the best approach.

Fundraisers raise money, but they also raise awareness.

Beginning of the PR campaign for your show is when you hold auditions. This is when the talking begins. Actors talk with one another and this is the beginning of the public promotional campaign.

Every conversation moves the project forward or backward. When auditions happen, you are communicating about the project. If you have chaos in the auditions–behind time and off schedule, uncoordinated, forget order of audition candidates, etc.–you are conveying a message regarding what these productions will be like.

Stand on stage and welcome people. You should also be in the lobby after the show and during intermissions to talk with people and get feedback, etc. You should be accessible.

Fundraising Formula

Gather core people together, have a meeting, target list of who will be invited — say 250 people? 50 people? etc. What will the charge for the house party be? $75?

500 x 75 = $37,500 x .1 = $3,750 (never estimate more than 10%)

There are some companies or organizations that allow others to piggy-back off of their nonprofit status; for instance if you want to have a fundraiser but want the donations to be tax free (or a portion thereof). Fractured Atlas is one company that was mentioned. Applying for 501(c)(3) can be expedited and take around 6 mos. Other fundraising opportunities online include Kickstarter and Indie-Go-Go.

Investing productions
Corporate sponsorships
Foundation
Run of the mills stuff

All of them work on personal relationships.

Estimate Box Office at 40%

$20 Tickets = T
200 Seats = S
40% Box Office = B
3 Performances = P

P x T x S x B = $4,800

When something is happening there is momentum which can draw other investors or interested parties. The caveat being that everyone has to be having a positive experience.

A question was asked, as was mentioned above, about the difference between a contingency budget and an opportunity budget. Roland advised that it is best to prepare several dream budgets, etc., to ensure that if you have lots of $$ rolling in that you know immediately where to direct it; versus a low end budget that is more realistic.

**Groupon** one of the people present discussed at length their use of Groupon for ticket sales to an event. That a Groupon rep will buy in if they like a project. You have to price carefully with Groupon as it is based on a two for one notion; so whatever the price of your ticket is, you will only get 1/2 of that. I.e. price accordingly. For instance, a $15 ticket is actually $7.50 per ticket. In addition, Groupon will take 50%, so you’re actually getting $3.75 per ticket. The amount of money in this case drops pretty significantly, but you have to realize that it’s a numbers game. In the experience described here the folks managed to get hundreds of people because of the higher profile.

So, lets take our example from above:

$20 Tickets becomes $10 dollar tickets which in reality becomes $5.00 tickets. But say that attendance due to Groupon goes up to 100% capacity.

P x T x S x B = $3,000

So, again, it’s a numbers game. In this scenario you lost $1,800 assuming various things (that you get 100% capacity in scenario B or that you achieve 40% capacity in scenario A). Alternatively, you can boost ticket prices in the Groupon examples, as the people buying are really getting 1/2 off. If you bump tickets to $30 a piece, your scenario comes out at $4,500, which is closer to the original scenario, but you’ve added 120 viewers for your work!

Proof read the ad. In the Groupon example the contributor noted that there was a mistake on Groupon regarding the start time which was listed at 10:00pm not the 9:00pm start time, so said contributor had to delay the start for an hour to accommodate those coming late.

Roland advised a Cheat Sheet in the box office that describes your show so the person in the office can read the description. Tec noted that there is nothing more dispiriting than calling a box office and hearing a person describe the show by saying: “I don’t know what that’s about, I haven’t seen it.” Or something like that.

Explore all group buying ventures and, as Tec advised, explore cooperative deals with other theaters for joint promotion.

Scheduling and Hiring

1st person you hire should be the Director. First, you really can’t put together a schedule without the director (auditions, performances, etc); Second, the director needs to coordinate with the production team (including set design, costume design, etc)

You should identify the first date for the performance and work backward from that date.

Tec breaks the process into 3 phases:
Pre-production
Production
Post-Mortem

Preproduction — includes consideration of design, space, auditions, staff, time frames, etc. Tec advises that you let the designer pick his own people/team.

During preproduction you should create a list of all the things that need to happen/be accomplished in preproduction and you must check off the list. This must include contracts, union contracts, etc.

Production — includes rehearsals (don’t start until casting is complete), PR (website), Box Office, house management. The press releases should have a contact name and that name should NOT be that of the playwright, director, or an actor.

Post-Mortem — counting money, paying all bills, strike set, PR clipping book for the play, core team dinner meeting to assess the results. Every unpaid bill is a relationship in jeopardy. Follow-up communication or email to thank everyone involved. Get feedback from everyone you can.

Should have a production office — doesn’t have to be a rented space or store front, but needs to be a place where people can come to drop things off or pick things up.

Tec distributed a worksheet — Untapped Equity Sheet — that allows you to identify untapped equity from the people around you. Tec notes that we tend to think “task then resource”–example: “I need to do a mass mailing: stuff envelopes, affix labels and stamps; so I need x many people to do this.” Again, Task –> Resource.

Tec encourages you to think the opposite direction: identify resources that you have in your life and then identify appropriate tasks for the resource (hence the untapped equity sheet). So, identify people who can help with your production and think about how they can help your production. Assign roles and tasks based on willingness, skills, etc. Start with people, then find the tasks.