From the Managing Director
Author! Author? By Joan Channick
Legal issues regarding the authorship of theatrical works have received considerable attention in recent years, and publicity surrounding the scheduled trial in April of a new case regarding a director's allegation of copyright infringement has reopened the discussion.
| Copyright Law Resources:
Stage Writers Handbook by Dana Singer (TCG Books) So What...About Copyright?, edited by David Bollier, Gigi Bradford, Laurie Racine and Gigi B. Sohn (Public Knowledge 2005) |
Discussions of these issues seem to be difficult. I am going to try here to offer some assistance in thinking through these issues: to try to offer some clarification about the legal issues, to acknowledge the emotional issues these legal questions provoke, and to suggest a way through that will avoid most legal problems.
Both the federal copyright statute and the case law change continually, with the statute subject to amendment by Congress, new cases arising all the time, lower courts sometimes taking conflicting approaches as they wrestle with issues until higher courts establish unequivocal precedents, and the outcome of any particular case always subject to reversal through the appeals process. It can take a long time to reach a consistent understanding of a new legal question.
Three major issues, (1) copyrightability of stage direction, (2) joint authorship and (3) works made for hire, are sometimes blurred together, although they are distinct matters.
Copyrightability of Stage Direction
Misconceptions about the copyrightability of stage direction are being promulgated on both sides of the debate, which muddy the waters.
The first relates to the language of the statute. The copyright statute protects "original works of authorship fixed in any tangible medium of expression." The statute says that "[w]orks of authorship include the following categories: (1) literary works, (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works."
Stage direction is not mentioned in this list of works of authorship, an omission often cited as evidence that Congress did not intend for direction to be copyrightable. But the courts have interpreted this provision broadly so as to be protective of authors and have found that the language of this provision is not exclusive; "works of authorship include the following categories" (emphasis added) means that these are merely examples of kinds of works of authorship. Other kinds of works not expressly enumerated here can be works of authorship and therefore copyrightable, so the statutory language does not resolve the issue.
Another misconception, this one advanced by proponents of copyrightability for direction, stems from the fact that the U.S. Copyright Office has accepted copyright registrations for stage direction. This is often cited as evidence that the Copyright Office has found stage direction to be copyrightable. But unlike the U.S. Patent and Trademark Office, which scrutinizes and accepts or rejects registration applications, the Copyright Office does nothing more than see that registration forms are filled out correctly and the fee is paid. Registration does not secure a copyright; copyright protection is automatic and becomes effective as soon as an original work of authorship is fixed in tangible form. Copyright registration merely serves as a public claim of copyright ownership by the registrant and establishes a rebuttable presumption. But acceptance of a copyright registration does not mean that the Copyright Office has "approved" the registration or that it has ruled on whether the copyright claimed is valid.
Yet another misconception is that if directors' work were to be copyrightable, the director's copyright would limit the playwright's right to control their own work or that the director's copyright would, in effect, pull plays back out of the public domain, on the theory that each director's unique staging of a play would limit the options available to future directors. This represents a serious misunderstanding of how copyright works. Although it may sound oxymoronic, the monopoly of the copyright owner is not exclusive. Different authors can create similar or even identical works and each would own the copyright to the work they created, as long as the later author didn't copy from the earlier author. Similarity alone does not constitute infringement; the courts' test for copyright infringement has two elements: The alleged infringer must have had access to the earlier work and the later work must be substantially similar to the earlier work. Some have suggested that directors would have to look at others' stagings of a play and decide whether they wanted to license an earlier director's staging or choose to create their own, but this is unnecessary and, indeed, makes the director more vulnerable to claims of copyright infringement.
Although there is no definitive precedent yet, the couple of courts that have touched on the issue seemed inclined to find that direction is copyrightable. The first was a divorce case involving the royalties for an artistic director's direction of a play in the theatre where he was employed. The artistic director's work was found to be work made for hire, within the scope of his employment, and therefore was owned by the theatre, not the individual. Since the decision was unpublished, however, it cannot serve as legal precedent. The second was the well-known case where director Joe Mantello alleged that the Caldwell Theater Company in Florida's production of Terrence McNally's Love! Valour! Compassion! copied his stage direction. Although the case was ultimately settled with payment to Mantello of an amount equivalent to a director's fee, which Mantello donated to charity, so that the court never made a final ruling on the question of copyrightability, the court denied a motion to dismiss the case, in part premised on the presumption that the director's work was copyrightable. If these two cases are any indication, it would not be surprising if the courts, when they do have the opportunity to rule squarely on the question, find that stage direction is copyrightable.
What are the real issues, then, regarding copyrightability of stage direction? The arguments both for and against copyrightability seem to be based on the question of whether direction meets the requirement of originality. Does the director create something new? Directors themselves seem to waffle a bit about this, some saying that they consider their direction of some but not all plays to be sufficiently original as to be copyrightable, depending on what they did. For purposes of copyright law, "original" means "not copied." It has also been interpreted by the courts to mean that there must be some small spark of creativity involved. I am not suggesting that directors' creativity is limited, only that the threshold set by copyright law is low, so it doesn't take much for any author to meet the law's standard of originality, which is meant to be broadly protective of creators.
The argument about directors' copyright seems to be based on the fear that one creator's rights will somehow diminish others. But if stage direction is copyrightable, it is an entirely separate work from the playwright's text, just as choreography is an entirely separate work from the composer's music. Copyright in one doesn't affect the other. Or by analogy to derivative works, the copyright in the derivative work (any adaptation of a work into a different form) does not diminish or affect the copyright of the underlying work at all, and what is copyrightable about the derivative work is only the new material created.
Moreover, if directors' work were to be copyrightable, it would only protect those aspects of direction that constitute original works of authorship. Even the New York Times confuses this question in their otherwise comprehensive January 29, 2006, article, "Exit, Pursued by a Lawyer," where a subheading asks, "Should a director be able to copyright his ideas about how to stage a play?" Ideas are not copyrightable. Under the copyright statute: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
It is ironic that in a field like theatre, where our ethos is artists' ownership of their own work (unlike film and television, where work is always done as work made for hire), the response to suggestions that more expansive notions of authorship be recognized seem to elicit an immediate entrenchment in each discipline's foxhole, creating dissension among artists and between artists and theatres. The truth is that, whether stage direction is ultimately found to be copyrightable or not—and that's up the courts and Congress, not to us—what is within our control is the individual relationships among artists, and between artists and theatres. Whatever presumptions the law creates are just the starting point in the discussion.
Joint Authorship
Joint authorship issues have arisen in a number of cases. The Copyright Act defines a "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." Case law has refined this definition to require (1) that all joint authors must make copyrightable contributions to the work and (2) that the joint authors have the mutual intention to be joint authors so that this kind of relationship is not imposed after the fact on unwilling partners. In Childress v. Taylor, a case in the early '90s, an actress who had suggested to a playwright friend the idea for a play based on the life of Moms Mabley and who did the biographical research for the play but did not actually write anything, was found not to be a joint author with the playwright. Although the actress had participated importantly in the creative process, contributing both ideas and facts, the court held that since neither ideas nor facts are copyrightable, her role did not constitute joint authorship.
In dramaturg Lynn Thompson's dispute with the estate of Jonathan Larson regarding Rent, the court found that the dramaturg had made copyrightable contributions to the work, but that the playwright and dramaturg's behavior indicated no mutual intention to be joint authors. The evidence included the fact that the playwright insisted on sole billing as the author, he entered into contracts with third parties for the use of the musical, he had previously entered into joint authorship agreements with other collaborators so knew how to do so when he wanted to, he and an earlier collaborator on Rent had explicitly discussed the implications of the dissolution of their work together, and the dramaturg herself acknowledged that Larson had the ultimate decision-making authority to accept or reject her suggestions. Where did that leave Thompson, who had written copyrightable material for Rent but was not a joint author? She contended that she must therefore be the sole author of the parts of Rent that she had written; Larson's estate contended that Thompson must either have conveyed or licensed her interest. The court never ruled on this issue because the parties settled privately.
This case generated huge controversy in the field, and caused tension between playwrights and dramaturgs. Playwrights feared encroachment on their authorship of their plays, while dramaturgs saw Thompson's claim as recognition of the importance of their often-misunderstood role.
But I would suggest that the implications of this case were exaggerated. The case wasn't about the role of playwrights and dramaturgs in general; it was about what happened between this particular playwright and this particular dramaturg in this particular situation. In this case, as it turned out, the dramaturg and playwright were found not to be joint authors, but a dramaturg and a playwright (or any other collaborators) could be joint authors if they wished. The purpose of the requirement that there must be a mutual intention of joint authorship is to ensure that the relationship is consciously entered into, that obligations are not imposed retroactively on unwilling partners.
Works Made for Hire
Work made for hire provides another set of copyright ownership issues. Under the work made for hire doctrine, when copyrightable work is created by an employee acting within the scope of their employment, or by a specially commissioned independent contractor where the work is one of certain types of work listed in the statute and there is a written agreement that it is work made for hire, the hiring party, not the individual creator, is deemed the author of the work and therefore the copyright owner.
The most notable recent work made for hire case arose in a dispute about the choreography of Martha Graham. In her will, Graham left her personal property to a colleague, Ronald Protas. When he had a falling out with the board of the Martha Graham company and school, he claimed that he owned Graham's choreography and the company could no longer use it. The court concluded, however, that with a few exceptions, Graham's early work was conveyed to the company at the time it was incorporated and the dances created after incorporation, when Graham became the artistic director, were works made for hire because she had been an employee acting within the scope of her employment. Accordingly, Protas hadn't inherited the dances; they belonged to the company. After the Graham decision, the dance community became much more cognizant of the need to manage their intellectual property and to determine what kind of legal relationships companies and choreographers wished to have.
While practices among theatres differ, most theatres disavow ownership of individual artists' copyrights in what would otherwise be work-made-for-hire situations. The collective bargaining agreements prevalent in the field also provide for individual ownership of copyright, although the agreements often include a licensing arrangement that specifies the financial and other terms under which the theatre can continue to use the artist's work.
Artists working at universities may find that such employers are more prone to use a work-made-for-hire approach, but again, practices can vary widely. I have taught at two different schools, for example, one a large university and one a small college. The university believes that allowing faculty to own their own work provides an important incentive and, therefore, expressly disclaims copyright ownership, except in extraordinary circumstances. The college, on the other hand, treats faculty work as work made for hire, but allows faculty members a perpetual license to use that work at no cost. Although as an author I naturally preferred the university's approach, leaving me as the copyright owner of my own work, I was able to function under both systems and recognized that the college's approach represented a reasonable balance between my need to be able to use the materials I had created and their need to be able to continue my course, if they chose, after I was gone. I wasn't worried about the college's uses competing with mine because I knew that any teacher who would succeed me would necessarily cover much of the same subject matter, using many of the same source materials, but, if they were good, they wouldn't want to copy my work and would want to create their own distinctive approach to the course.
Conclusion
The major lesson to be gleaned from the problems artists encountered in situations such as Rent or the Martha Graham case is that these problems of copyright ownership were all avoidable and these disputes could have been prevented by contracts. Failure to resolve them before embarking on their projects left the artists and theatres at the mercy of copyright law and the courts.
It's understandable that people sometimes don't address these difficult issues at the start and don't take the time to negotiate contracts spelling out their expectations. Collaborators are focused on the real work of the theatre—creating and mounting the production—and are pressured by the opening night deadline. The possibility that colleagues and friends may have a falling out or that someone might die seems remote, and no one wants to think about such things anyway. But these things can and do happen, all the time, at any point in the trajectory of a project, and the issues that will arise are predictable, as are the issues that will arise in the event of phenomenal success, which is an equally remote possibility.
The other lesson, I think, is that parties can reach any kind of agreement they wish with respect to copyright ownership, licenses to use the work, how decisions will be made, and the like. Different theatres and different artists have different approaches to the same issues. For example, with respect to ownership of an ensemble-created work, some theatres take the work-made-for-hire approach under which the company owns the work; others take a joint authorship approach in which all the contributors own the work together; and still others take an approach in which a single playwright is considered the author and the other contributors are assistants whose contribution is important but does not constitute authorship.
The most respectful way to treat an artistic collaborator is to be unafraid to have the discussion at the commencement of a project, to be sure that everyone's expectations are aligned. If reaching agreement proves impossible at the time when things are most optimistic and the impetus to move forward is the strongest, it's a pretty good indication that perhaps this isn't a collaboration to pursue. More likely, though, clear discussions and contractual agreements will only enhance the artistic and business relationship.