"Producer's Corner"
by Bruce Lazarus

An Insider’s Tips on Licensing Your Play to a Licensing House

Tuesday nights I host a free TeleCourse in which I invite a different theatre-industry professional to discuss an aspect of the theatrical production process with both experienced and novice producers.

Recently our guest was Christopher "Kip" Gould, President of Broadway Play Publishing, the third largest licensing company in New York representing American plays.  Broadway Play Publishing publishes and licenses the works of such playwrights as Tony Kushner (Angels in America), Richard Nelson (Some Americans Abroad) and Eric Overmeyer.  They also publish and license the recent off-Broadway hit The Compleat Works of William Shakespeare Abridged, and George C. Wolfe’s The Colored Museum.  Broadway Play Publishing prides itself in finding new playwrights and developing strong relationships with them, as it did when it published Kushner’s first plays.  It also has a higher standard than Samuel French or Dramatists Play Service when it comes to the actual publication of plays, choosing to publish in high quality editions with glossy covers and striking cover art.  Christopher is also a producer whose credits include the Broadway production of Prelude to a Kiss.  I asked Christopher to speak to us about how we as producers can maximize our participation in subsidiary rights as a play we produce is licensed for later professional, stock and amateur productions.

First, Christopher gave us a brief history lesson.  He told us that up until 50 years ago, Samuel French was the only company that published and licensed plays.  They could define their own commission rate, and to this day their power and prestige permit them to take a commission as high as 50% on some plays that they license.  After World War II, playwrights and literary agents formed the Dramatists Play Service.  The idea was that the agents and writers would own the company as shareholders, acting as both buyer and seller of publication and licensing rights.  Agent shareholders of Dramatists receive a pro rata share of the company’s profits based on the business they bring in.  Samuel French began to compete with Dramatists by offering commission sharing, giving back some of their commission to the author’s agent.  For example, if Samuel French receives a 10% commission licensing a professional production, or a 20% commission licensing a stock or amateur production, they may give 25% of that to the author’s agent. Thus, the licensing house is really only receiving a 7½ % commission on professional productions, and 15% on amateur productions.   Keep in mind that any part of its commission a licensing house gives to an agent is sometimes in addition to the 10-15% agency commission the agent will receive on a licensing deal no matter who licensed the play.  Today, Christopher told us, such commission sharing is relatively standard.  However, new agents might not know to ask for it, and will simply take their own 10-15% commission from the check that comes in after the licensing house has already taken its percentage.

Now, on to how we as producers can maximize our future interest in the plays we produce.  As mentioned in an earlier Producer’s Corner, a producer is usually a 40% participant in the future subsidiary rights of a play he or she produces.  This includes future stage productions as well as adaptations for film, television, CD, and other media.  Therefore, the producer has an interest in getting the strongest commitment, largest advance and best deal from a licensing house.  However, producers may not even be consulted when the author’s agent sells the stock and amateur rights to a licensing house.  The “agency clause” in the option agreement between the producer, playwright and agent states that the agent will be the agent for that particular property even if the author leaves the agency.  Some agents think they can better market a play and license its subsidiary rights than a licensing house can.  As a producer, I want a commitment from an agent up front that he or she will sell the stock and amateur licensing rights to a licensing house, because I think a licensing house will more actively and thoroughly pursue those future productions.  Agents will not always agree to this, not only because they think they can license the play themselves, but also because if they do license the play themselves, they get to keep the entire commission whenever a new production is licensed, not just their own 10-15% plus a percentage of the licensing house’s commission.

On this point, Christopher reminded us that many agents and playwrights have long-term relationships with specific licensing houses.  There is a tendency to give a play to an agent’s favorite licensing house without entertaining competitive bids, which Christopher sees as a major disadvantage for the playwright.  Christopher strongly suggested that if you produce a well received play, make sure the playwright’s agent gets competitive bids from licensing houses.

I asked Christopher what we as producers should ask the licensing houses that are bidding for the right to license our play.  The standard of the industry is that the play gets into the licensing house catalogue, with a few copies of pamphlet-type quality in performing arts-oriented bookstores, and that’s it.  Christopher suggested asking the licensing houses what they plan to do to promote the play besides putting it in the catalogue.  Will they publish the play with a high quality glossy cover, perfect bound and square-edged, with cover art?  Will they give you, the producer, complimentary copies for promotional purposes? Will they do a mailing to theatre companies and schools announcing the acquisition of your play?  Will the play be prominently featured in their catalogue, with art work? Perhaps on the cover?  Will they advertise their acquisition of your play in theatre magazines?

Once an agent and a licensing house have come to an agreement, payment is usually structured with one payment at signing and another at full release of the rights.  The agreement usually includes an understanding that during the New York run and for a period thereafter, or if a tour of the play goes out, any additional professional, stock or amateur productions will be prohibited in those areas of the country that the tour may visit.  A New York production or tour usually generates a higher level of interest in a play in the long run, so the licensing house will make up for this “lost time” once the tour is over by licensing more productions.  This can get difficult only if, Christopher informed us, the producer of a tour insists on opening the tour at a theatre that is traditionally a customer of the licensing house for performing rights.

In my estimation, a producer should be able to go out and  license a play he or she has produced no matter what the situation, so long as that producer makes sure the agent and licensing house get whatever commissions they are entitled to.  However, as Christopher pointed out, companies such as Samuel French and Dramatists, who have been in existence for many, many years, are not amenable to changing the way things are done.

Bruce Lazarus the former Director of Business and Legal Affairs for Walt Disney Theatrical Productions and producer of the current off-Broadway show Shakespeare's "R&J."

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