What’s Copyright Got to Do, Got to Do With It?

By Shayna Toh

The “cockroach of Broadway” seems to keep cashing checks. Despite the sneering term that veteran theatre critic Jesse Green used to describe jukebox musicals, the genre has dominated Broadway in recent years. In an industry that always seems to battle existential threats and huge financial losses—twelve current Broadway productions are slated to close for good this winter—musicals in the jukebox form seem to be one of theater’s last few buttresses in financial viability.

Jukebox musicals—musicals where the score consists of existing well-known pop songs instead of original music—are highly contentious in theater. While they constantly invoke the ire of theatre purists for being commercial, banal, and stilted, their success cannot be downplayed. Mamma Mia, a pioneer of the jukebox in its current form, grossed more than $600MM during its 14-year Broadway run. Moulin Rouge! The Musical swept the 2020 Tony Awards with 14 nominations and 10 wins. In the past few years, three different jukebox musicals have fallen into the fantasy or medieval theme alone: Head Over Heels, &Juliet, Once Upon a One More Time.

As the nature of the jukebox musical has changed, so have the requirements of what it takes to produce one. Traditional jukebox musicals used to be fairly straightforward. In its simplest form, the type resembles a biopic: a musical telling the story behind the world’s most famous artists while incorporating their greatest hits into the score. Think Jersey Boys with Frankie Valli and the Four Seasons or Beautiful: The Carole King Musical. Another type of jukebox musical uses a singular artist’s catalogue and set their greatest hits to an original story. For example, We Will Rock You uses Queen’s discography to score a plot about Bohemians in a futuristic, Orwellian landscape; Jagged Little Pill is about the trials of a broken suburban family set to Alanis Morrisette’s best songs.

To produce such a musical, a producer would need to obtain rights and a license for this artist’s full or partial discography. The world of music licensing has two main categories of rights: grand rights, and small rights. “Grand rights” are rights for dramatic performances, often defined by having a plot and characters, while “small rights” refer to music not specifically written for a dramatic presentation. While the completed product of a jukebox musical is indeed a dramatic performance, an existing non-dramatic composition or pop song, before it becomes incorporated into the dramatic work, will fall into the latter category.

To start the conversation about using an artist’s songs, a theatre producer would have to reach out to either their publisher or to a copyright collective. If the inquiry is into a catalogue of a solo artist, as the aforementioned musicals were, a producer would normally reach out to the specific publisher themselves, which would mean contacting Morrisette, King, or Queen’s music publisher or music estate. The parties will often collect more information, discuss possible areas of concern, and undergo a negotiation process. Once the request is approved, up next for discussion are the licensing agreement and fee. Such an agreement will be negotiated on a case-by-case basis, often differing based on the nature of the production: a one-night only, small-venue production would probably see the publisher receive a small flat fee. A production that has a longer run or is more professional might see the publisher bank on the odds of success and try to fight for a percentage of the show’s revenue instead. The licensing agreement will be tailored to a very specific performance or run, and a new production would often involve a rehauling of any previous agreement.

That’s the easy route. As the industry innovates, producers are looking for novel ways to make their shows standout—for Broadway to “create the biggest spectacle we know.” The musical adaption of Moulin Rouge, based on Baz Luhrmann’s 1990s cult classic, features a whopping 70 songs in its score, accredited to 161 writers. While jukebox musicals have been incorporating songs from various artists for decades, Moulin Rouge stands apart for the sheer breadth and variety of material the producers chose to work with, and it offers a blueprint in terms of dynamism and innovation that budding producers could learn from if they’re striving for similar success. The musical ends its first act with an ambitious love medley that mixes no less than 25 songs. The score is anarchical and relentless in plucking songs across genres, regions, and centuries: one number dares to mash Marilyn Monroe’s “Diamonds Are A Girl’s Best Friend” up with Beyonce’s “Single Ladies”, another sets The Police’s “Roxanne” up against Mariano Mores’ Argentinian tango.

While largely successful, the producers of Moulin Rouge encountered numerous obstacles. Courtney Love and Queen’s estate refused to give up the rights to “Smells Like Teen Spirit” and “The Show Must Go On,” respectively. While ten of the eleven songwriters on “Uptown Funk” initially approved the use of the song in the show, Bruno Mars’ denial ultimately tanked the effort. Furthermore, the songs chosen for the show had to be constantly reworked. When dealing with composers or publishers who wanted exorbitant licensing, the production team’s response was to be flexible with their repertoire. “Part of it was [us] saying we’re willing to walk away,” said producer Billig Rich. “Not one song has to make the show.”

Adding 161 players to the creative team as songwriters increases the likelihood of complications in terms of royalties and profits that the creative team normally endures. Main players within a theatre production’s creative team normally include writers, directors, choreographers, and multiple designers (e.g. lighting, sound, set). As it stands, Broadway is no stranger to fights over what percentage of royalties each creative demands, often exacerbated by who is considered a part of the creative team. A famed case from the mid-1990s saw the dramaturg of the smash hit RENT demand a share of the royalties instead of the initial flat fee, citing significant plot-line contributions to the show.

Typically, profits from a production are funneled into a “royalty pool” split between investors and the creative team. Before the production recoups, investors and the lead producers normally take about 65 percent, with the rest shared among the creative team, and it can evolve into a 50/50 split after recoupment. As the music creatives expand to cover hundreds of songwriters, the potential for future conflicts and litigation grossly increases.

As a production like Moulin Rouge makes its way around the world, it can give rise to future complications based on different cultural and musical standards. For example, a British songwriter of a huge UK chart topper that did not fare as well in the United States might be comfortable receiving less royalties in a show on an American stage. However, if the show were to premiere on the West End, and audiences were purchasing tickets to watch that number being performed live on stage, it is not improbable for said songwriter and their publisher to request a more generous arrangement.

And while getting consent for the right music in a jukebox musical is a pertinent legal challenge, other challenges remain. Perversely, an artist’s broader acclaim could cause adverse effects. In the above example, the Nirvana and Queen estates denied the request to incorporate their songs in Moulin Rouge because there were plans of an upcoming Nirvana stage musical and the then-upcoming Bohemian Rhapsody biopic. Conversely, take Britney Spears as an example: her publisher seems to be liberal with authorizing licensing requests: Moulin Rouge plays one of her songs, &Juliet uses six of them, and Once Upon A One More Time is “wall-to-wall Britney Spears music,” clocking in more than 20 songs. All three shows are currently running on Broadway. No legal issues arise from this, but the idea of multiple shows having similar ideas and elements might present other problems.

There is an undoubtedly strong appetite for jukebox musicals using a medieval and fairytale concept, probably because of the appealing juxtaposition of that setting against current pop hits. As this market saturates, overexposure of certain qualities, such as Spears’ music or the medieval theme, could eventually threaten to dilute the uniqueness of each show. How much would an audience want to see more than one show of the same form, same setting and concept, and same tunes? Moreover, knowing the popularity of producing jukebox bio-musicals, what are the chances that music publishers and estates would rather keep the catalogue for their own purposes, instead of licensing them out to these multi-artist shows? What impact will this have on the form as a whole? Only time will tell if such considerations become more salient, but as the big stages of theatre embrace more and more jukebox musicals, these questions demand answers, and soon.