Live events sector, music publishing
It has been announced that a ‘jukebox musical’ made up of Prince’s songs will tour the UK next year and the current plan is that it will open very shortly with a string of dates across the UK.
I say plan because Prince’s family or the Prince estate has not given permission for the musical. In fact, Troy Carter, entertainment advisor to the Prince estate has explained that “Neither Prince’s family nor the estate have given permission to use his name, likeness or music catalogue for this event”,
But do they need permission? With the music, there are two licensing issues that must be taken into account.
Firstly, let’s take the boring option, if the Purple Rain musical is in essence just a band performing Prince’s catalogue of music, nothing more, nothing less, so in effect a tribute band playing Prince songs (albeit under the guise of a musical) it would be likely that permission of the Prince estate would not be needed. This is because it is possible to obtain, or play a venues where a PRS ‘blanket licence’ will cover the public performance of the musical works.
Now, the more entertaining option, but also the more complex option. This option is the entertaining option because it requires that the musical be dramatic, or theatrical. Technically speaking, the musical would need to be a ‘dramatico-musical’ work. Now for the more complex part, if the musical is to be….a musical, the involvement of the Grand Right will be taking a place on centre stage.
The Grand Right exists in musical works that are specifically written for dramatic use. However, PRS does not licence this right, the right stays with the author or copyright holder of the musical work (isually a music publisher). The rationale behind why the right stays with the rights holder,(and not PRS) is due to the fact that proposed use means that the creator of the musical work would require a higher degree of control over the work.
In this Purple Rain musical case, the Grand Right is likely to be owned by the Prince estate or Prince’s publisher(s) This means that if the musical is to see the involvement of this right the permission of the Prince estate will be required, something that has not yet been obtained.
My thoughts on this, if the show goes on it is likely to be a cover band singing Prince songs with little involvement in the way of ‘theatricals’. This is because the musical producers will not need permission if it is only to be a performance of Prince songs.
However, that is if the show does go on at all. Music rights aside, Prince’s estate mention the fact that the musical will use Prince’s ‘name and likeness’: and this may prompt additional concerns: Firstly, one cannot discount an action for passing off or an action for Trade Mark infringement. The passing off principle means that one business cannot copy the distinctive features, or goodwill, of another company and pass themselves off as that company.
In addition to this, and whilst image rights are not protected as a stand alone right in the United Kingdom, in other jurisdictions they may well also come into play.
And then there are the European Community and United Kingdom Trade Marks foir ‘Purple Rain’ filed in classes 9 and 41 and owned by NPG Records who are based in the USA and were and are, in effect, Prince’s record label. These registered marks cover (amongst other things) “Entertainment services, namely, live musical performances; live stage performances in the nature of concerts; live music shows;”. Another company (Nova of London Limited) has a class 25 UK Trade Mark registration covering clothing a footwear (so potentially no merchandise for the stage show!). Even without image rights and the Trade Marks, action might be taken which could potentially see an injunction being sought to prevent the musical’s producers using the goodwill that is associated with Prince, (and even in the Purple Rain film that starred Prince), for their own benefit.
At this point in time I am certainly more interested in the legalities rather than the musical itself.
Robyn Rihanna Fenty v Arcadia Group Brands Ltd (T/A Topshop)  EWHC 2310 (Ch) http://www.5rb.com/case/1-robyn-rihanna-fenty-2-roraj-trade-llc-3-combermere-entertainment-properties-llc-v-1-arcadia-group-brands-ltd-ta-topshop-2-top-shoptop-man-ltd/