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Copyright in the Theatre: Dramatically Different!

Guest Post by Gordon P. Firemark

November 5, 2008

Gordon P. Firemark is an entertainment attorney in Los Angeles, California. His practice is a mix of Theatre, Film, Television and Music law, with a sprinkling of technology and new media thrown in for flavor. Subscribe to updates at his websites: http://www.firemark.com and http://www.theatrelawyer.com.

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The Theatre is among America's oldest entertainment industries. Nevertheless, copyright law operates differently in theatre from the ways in which it operates among the music, film, and television businesses. Authors and attorneys familiar with work in these other media often fall victim to false assumptions and drafting mistakes when preparing contracts dealing with the living stage.

The most prevalent example of these false assumptions is by producers and their representatives who, when commissioning a playwright, lyricist or composer, assume that the results and proceeds of that artist's work will be owned by the producer, as a "Work made for hire".

Authorship stays with playwright, composer and lyricist

In point of fact, the works created by such artists belong to them, as the authors, and not to the producers who've commissioned the work. Why is this? The answer lies within the Copyright Act itself, and the way in which it defines "Work Made For Hire".

Section 101 of the U.S. Copyright Act provides, in part that

A "work made for hire" is -

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Note that Dramatic Works are NOT included in this list. Thus, unless a true employer-employee relationship exists between the commissioning party and the author, the work created cannot be deemed a "Work Made For Hire".

As a consequence of this, nearly all deals for the acquisition of rights in a play or musical are structured as an option to acquire a License to produce the show. Even in the case of a commission, the commissioning producer or theatre, typically acquires only rights to produce the first production of the play or musical, sometimes incorporating a right of attachment, first-refusal or first negotiation, to be involved in later productions, etc. (in the cases of Broadway and Off-Broadway production, the Dramatists Guild has promulgated an "approved production contract", which is the result of lengthy negotiations between that organization and producers.)

Material added by others... belongs to the authors.

Another interesting wrinkle in the equation of authorship and ownership of plays and musicals arises from material added by contributors other than the bookwriter, lyricist and composer. In the motion picture or television business, again, all of these contributions would be deemed "works made for hire" and would belong to the producer, but in the theatre this is not the case.

One way, therefore, that playwrights, composers and lyricists have dealt with this issue is by inclusion of a clause in the production agreements that provides that all ‘additional material, changes and cuts to the original (all of which also require the authors' approval), be assigned and transferred to the authors.

What about the Director's copyright?

This raises an interesting point of contrast however, when we look at the involvement of the Director and Choreographer. Under the terms of the collective bargaining agreement between the Society of Stage Directors and Choreographers and producers, these Artists are granted ownership of their contributions to the shows on which they work. In the case of choreography, the law is fairly clear that choreographic works may be protected by copyright, but in the case of directors, the law is far less clear.

Director's copyright is the subject of some ongoing debate among lawyers, producers, dramatists and directors. The copyright act does not provide specifically for protection of the contributions of directors (e.g., stage directions, interpretations, etc.). Moreover, the copyright act requires that, in order to be protected, a work must be ‘fixed' in some tangible medium by the author of such work. Here, Directors argue that the stage-manager's notes, script, etc., provide that ‘fixation', but dramatists contend that since this material is created under the terms of the license to the producer, the material belongs to them, and not to the director. Since no other form of ‘fixation' is authorized by the license... the Director cannot lawfully create a copyright protected work.

Nevertheless, there have been cases in which directors and producers have pursued claims against those producing later productions which have copied staging, designs, sets, etc. The most notable examples, are last year's two cases against producers of Urinetown (see discussion on theatrelawyer.com), and Mantello v. Hall (in which Director Joe Mantello's exact staging was copied in later production of "Love Valour Compassion"). Since all of these cases have ultimately settled, the outcomes are unclear, but the lesson is not. Care must be exercised in drafting to ensure that directors' rights are addressed. Otherwise, costly litigation follows.

Conclusion

Copyright law operates somewhat differently in the theatre industry than in the film, television and music businesses. False assumptions and misunderstandings of the law and practice in this industry can be devastating for the unwary. It is important, therefore, that an experienced theatre lawyer be consulted when live-stage production is contemplated.