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COPYRIGHT, COLLABORATION AND THE FUTURE OF DRAMATIC AUTHORSHIP

Brent Salter

Platform Paper 22

Brent Salter

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Recent, very public disputes here and overseas involving eminent playwrights and their directors and dramaturgs have fuelled a chorus of commentary about the ‘ownership’ of a stage work. Are collaborators who contribute words or ideas to the development entitled to copyright protection and royalties from subsequent productions? Playwright Alana Valentine is opposed. It’s an incredibly-skilled job, she says. No matter how many minds are involved, ‘I take the risks. It’s my version. I typed it up, so it’s mine.’
Salter examines the complexities of reform and the limitations of the single-author ruling, citing the case of Company B Belvoir versus the Samuel Beckett Estate, which demonstrated how the freedom to interpret is prescribed even after the author’s death. Under the current copyright regime, he concludes, industry-based customary agreements are a more productive way to sustain harmonious collaborative relationships.

 

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About the Author

Brent Salter is a Visiting Research Fellow at Macquarie University Law School. He has published extensively on the intersection between the law and the arts and next year will commence doctoral studies in the history of theatrical authorship.

The fear always exists that, if the playwright does not consent to changes, then the producer may choose d their work. In a circumstance of unequal bargaining power between an emerging playwright and a large professional theatre company, there is a risk that the playwright’s legal rights could end up being negligible. And, further, if her play went into production and she felt that she was being asked to make changes under duress, the playwright might well feel compelled not to enforce their rights. After all, few new playwrights would have the funds to commence formal litigation and, if they did, they might fear future reprisals from the theatre community.

 

Comments

John Weidman is a librettist who has written the books for a wide variety of musicals, among them Pacific Overtures, Assassins, and Road Show with stephen sondheim, and Contact, created in collaboration with director/choreographer susan stroman. For ten years, he served as president of the dramatists Guild of america.

I read with interest Brent Salter's Platform Paper on Copyright, Collaboration and the Future of Dramatic Authorship and, while I agree entirely with his conclusion that the copyright laws should not be changed to accommodate the interests (a better word, I think, than 'rights') of non-writer collaborators, I thought it might be useful to add a few words on a related subject with which we have been wrestling here in the United States.

That issue is director's copyright. Or, more accurately, an aggressive effort by certain directors, through their union, the Society of Directors and Choreographers, to establish a copyright interest in the work which they create-not as putative authors or non-writer collaborators-but simply as directors doing the work they do when they put a play on its feet.

The assertion by these directors that they should own their 'direction' is relatively new. It is, however, deeply dangerous and it is essential that it be resisted, not only by playwrights and other theatre professionals but, frankly, by directors themselves. Why?

Let me begin by emphasizing that in the United States there is no property right, established either by statute or by court decision, which gives a director ownership of any aspect of a theatrical production. Indeed, attempts by directors to copyright their direction is a relatively recent phenomenon, traceable back to the case of Gutierrez v. DeSantis, No. 95-1949 (S.D.N.Y. filed 22 March 1995).

The Gutierrez case arose out of a production of The Most Happy Fella, directed at the Goodspeed Opera House and subsequently on Broadway, by Gerry Gutierrez (a brilliant, accomplished, and celebrated director). Mr Gutierrez attempted to copyright his direction of The Most Happy Fella by writing his stage directions in the margins of author Frank Loesser's script and filing those stage directions with the U.S. Copyright Office.

It is important to point out that such a filing is simply that-a filing. It establishes nothing about the ownership of the material filed, nor whether that material is even capable of being owned. And, as already mentioned, there is nothing in the U.S. Copyright Laws, nor has there ever been a judicial determination, to say that stage directions, filed by a director, are copyrightable.

For the sake of argument, however, let's say they are. Let's say that Mr Gutierrez could and did acquire copyright ownership of his staging of The Most Happy Fella. What would have been the consequence?

The Most Happy Fella opened on Broadway in 1956. In the forty years between that opening and Mr Gutierrez's revival, there must have been hundreds, if not thousands, of productions of this enormously popular musical play. If Mr Gutierrez could acquire copyright ownership of his staging, then the directors of each and every one of these productions could have acquired copyright ownership of theirs as well. And copyright, of course, does not attach to work based on its prominence or quality. The director of a junior high school production of The Most Happy Fella in Peoria, Illinois, would be entitled to the same copyright ownership of her direction as would Mr Guiterrez.

Had this happened, had the directors of all these productions been able to assert ownership of their direction, what would have been the result? Over the course of the last four decades The Most Happy Fella would have gradually ceased to exist as an independent piece of dramatic literature, giving way instead to a multitude of 'Most Happy Fellas', each one a legal partnership between Frank Loesser and a director whose production he and his heirs had, in all likelihood, never even seen.

Should such copyright partnerships ever come into existence, they would clearly operate as liens on plays and musicals, restricting-in unknown and unpredictable ways-the playwright's ability to control and to exploit what he or she has created. But beyond that, they would have a potentially devastating effect on the facility and vitality of theatrical production generally.

For example. Imagine that a theatre wished to produce The Most Happy Fella. They would be faced with a choice. They could examine-how?-each of the then existing copyrighted productions and select the one they wished to reproduce. Or they could proceed with their own original production, running the risk that a particular piece of business, or a stage effect, or their overall approach would be attacked by a director as an infringement of his previously copyrighted version.

Of course, The Most Happy Fella is merely illustrative.

Even plays which are currently in the public domain, plays which have been freely available to producers and directors and most importantly to the public for hundreds of years-Hamlet, King Lear-would acquire de facto copyrights as more and more directors asserted ownership of their versions of these classics. Producing them would become increasingly problematic.

And risky.

Theatres do not want to be sued. Indeed, most of them cannot afford the expense of defending a lawsuit. And if directors were able to copyright their work, the day would inevitably come when a theatre decided to cancel a production simply because they had been threatened by a director who perceived-rightly or wrongly-that the theatre's production would infringe on a version which belonged to him.

Infringement, of course, requires copying. And copying requires access. But directors are not attorneys, they are artists. And there are plenty of artists-and, I assure you, I am not exempting playwrights-who are prone to see their influence in other people's entirely original work. It is not difficult to initiate a lawsuit. It is even less difficult to write a letter threatening one. And the impact of such threats on theatrical production could be potentially paralyzing.

A recent, hopeful development. In the context of another law suit provoked by his union, John Rando, the award-winning director of the 2001 Broadway production of the musical Urinetown, made several attempts to register his direction with the U.S. Copyright Office. All of his attempts were rejected. Indeed, the Copyright Office took the position that direction, as a matter of law, is not copyrightable. And in an unprecedented move, the Copyright Office asked the Department of Justice to intervene in the Urinetown case on behalf of the position it had taken.

As it happened, the Urinetown case was settled before it went to trial, so the position of the Copyright Office was never memorialized in a judge's decision. Still, one can only hope that the unequivocal position which it took will cause other directors to think twice before attempting to assert copyright ownership of the work which they create.

It is a cliché to say that Americans live in a litigious society. This does not make it any less true. Or demoralizing. Or dangerous. Dangerous in this case, because if only one director one day finds himself before a judge sympathetic to the idea that he should own his direction, the crippling effect on the theatre could be enormous, and the resulting mischief could take years to sort out.

Wayne Harrison is the director of three current or forthcoming productions: don reid's Codgers, andy Griffiths' Just Macbeth and alex Buzo's Macquarie.

Reading Brent Salter's recent Platform Paper, Copyright, Collaboration I was taken by Tom Wright's recollection of the 1980s as a time when directorial 'ownership' became a contested issue, when 'directors saw themselves as the primary auteur voice and came to seek to impose their own reading on texts and productions' (p.33) and how this occasionally caused conflict. In the early '80s, when I first became involved in dramaturgy and the creation of new work for the mainstage, the orthodoxy was that theatre was a writer's medium. And while you could sometimes encounter a disgruntled director, revealing that such-and-such a play was a mess until 'I'd knocked it into shape', the orthodoxy-the primacy of the author- held. Except, as I worked further into the mainstream and became a director myself, I could discern a parallel theatre practice that didn't uphold the orthodoxy at all. And people were writing about this.

In an Aspect article entitled 'Where Things Begin' the author discusses the influence of Antonin Artaud on practitioners such as Brook, Bausch and Grotowski. He goes on to decipher what The Theatre and Its Double was advocating and how this might influence contemporary theatre:

[T]he central character in Artaud's conception of theatre is the director, who is to have both the practical and theoretical intelligence of his subject. […T]he author is the one who possesses the language of words. But this monarchic and rather stifling conception loses its pertinence from the moment a new syntax of lights, music, colours and gestures becomes available again.

This article was written by Jacques Delaruelle, back in 1985. Now, as Tom Wright also suggests in Copyright, Collaboration, there is a new generation of theatre writers, not necessarily designating themselves as playwrights, who are prepared to hitch their talents to a director's vision, or at least to the creation of something bigger than the writer, a theatrical production-those whom Ben Winspear describes as having 'a younger appreciation of text […], more varied and more open to interaction' (p.13). And this, I would suggest, is what underlay the media skirmish last year between David Williamson and Barrie Kosky: what was once orthodox is now old-fashioned or, at least, out of fashion, or worse, tainted by spokesmen like the version of Edward Albee presented in Copyright, Collaboration: egomaniacally stupid, claiming that only the Word can bring about an 'engagement of thought', denying directors and designers the right to creativity and suggesting that 'they go fuck themselves'.

Well, they choose not to do this, but instead, to run theatre companies that include writers, but do not idolize them. This is perhaps best illustrated by the Melbourne example, where the playwright-driven Playbox Theatre Company, once the impervious citadel of Australian playwriting was swept away, to be replaced by the theatre-maker-inspired Malthouse with Michael Kantor at the helm. Michael was a performer in Kosky's Gilgul Theatre Company in the early 1990s and is known affectionately as one of the 'Kosky Kinder'-which is not to deny him his own identity as a fine director's theatre director.

Inevitably, the new fashion for collaborative theatre-making will affect the carving up of royalties and it can't be hidden behind the rather feeble defence offered in Copyright, Collaboration, namely that courts and judges prefer the simplicity of dealing with one royalty holder and that the legal framework is used 'to minimize the number of original-authorial contributions'. There are too many precedents for this to hold.

When a play is adapted from another source, there is often a dual or allocated royalty: to the adapter, such-and-such a percentage; to the writer of the original novel, the complement. No doubt it would be neater for the legal eagles if these rights holders could be minimized to a sole author. But that would not reflect the truth of the creation. What's wrong with the following arrangement? To the author(s) of the play, such-and-such a percentage; to the author(s) of the production, the complement, if this is a truthful reflection of the way in which the 'piece of theatre' has been created. Surely, our courts aren't too lazy to acknowledge and action this? And we wouldn't want our royalty system to be based on lies, would we? When the title-page of a published text reads 'by Joe (or Joan) Blogg', we want to believe that what follows is all his or her own work. I've been to too many dinners with disgruntled directors, where the wine has flowed, not to know that this has far too often been simply not the case. The law should not protect those who are prepared to pass off other people's work as their own, and as Brent Salter indicates, industry-based contracting practices are being varied and tailored to reflect this.

Ultimately, authorship can't reside, as Alana Valentine contends, with the person 'who types up the scene at the end of the day' (p.12). That may hint at ownership, but not authorship. If it were so, in many projects the owners would end up being the stage managers, keeping track of the changes made in the rehearsal room and writing them up in the prompt copy at the end of the day.

My experience of royalty allocation can be summed up as follows: it all depends on your grunt and leverage. Trevor Nunn got the credit for writing several lines of 'Memory', the hit song from Andrew Lloyd Webber's musical Cats, because he was Trevor Nunn, the world's most sought-after director of musicals. His grunt earned him millions of pounds in royalties, which must have been a bastard for lawyers to administer. If Sir Trevor had been working in the Australian theatre industry when he wrote those lines, he would have been obliged to sign away the rights to his lyrical contribution-to Lord Lloyd Webber, who, having typed it up at the end of the day (or collected it from the stage manager), would have been within his legal right to claim sole authorship. Sir Trevor's only recourse would have been to inflate his director's fee so as to include a buy-out of all authorial contributions and any exploitation of subsequent productions (in any media) and subsidiary rights, everything from musical greeting-cards to karaoke tracks.

But, of course, you would need a crystal ball to predict what the inflation should be. Where originating producer's royalties are concerned, I've always believed that these should not be a 'best intentions' additional royalty that exists outside of the authorial royalty, but guaranteed points that are legally coupled to the author's royalty, or else a percentage of the latter automatically paid by the author to the original producer. This royalty can be capped to an amount equivalent to the original investment, or waived until a certain level of income is achieved. Waiver, full or conditional, is a way to modify royalty packages and works better than the wimpy 'best endeavours'. Few playwrights and agents have the grunt or the political will to enforce originator royalties.

But waivers are sometimes treated with suspicion in the light of cases such as Strictly Ballroom, in which several organizations involved in the original stage versions of the work (NIDA, STC) were asked to waive any residual hold they might have over the property so that the film version could be made. They did as requested, the film was made and it became a substantial commercial success. Someone made a lot of money out of it, but not the organizations that had produced it originally.

Which is to answer Alana Valentine, who asks why an artistic director 'who has a full-time job' (p.18) would be interested in copyright and the future exploitation of work? Originating royalties that flow to grant-assisted companies do not serve to line the pockets of individuals working for those companies, but, ideally, to enable the companies to continue producing original work, i.e. to create, we hope, more Strictly Ballrooms.

As to the future, theatrical fashion is a strange thing. Coward, Rattigan, Priestley were all swept away in the 1950s, once John Osborne's kitchen-sink realism took the English stage by storm, but one by one these idols of a previous era had their careers revived, their reputations restored. Priestley has been a particular beneficiary: the 'director's-theatre number' that Stephen Daldry did on it turned An Inspector Calls into an international, commercial hit that is still running in London fifteen years later. It would be interesting to see the allocation of those royalties. It may be that an Artaud-inspired director's theatre, or one of another kind, is merely a phase through which we shall pass and the pendulum will swing back etc etc. After all, the era into which we are entering here in Sydney is one in which none of the key grant-assisted companies, STC, Belvoir or Griffin, is run by a director, but rather by an actor, writer, designer and dramaturg.