“Plays aren’t just text. They are a living experience, and it’s the performances of their work that makes up the bulk of a dramatist’s income.” – Ralph Sevush, Dramatists Guild
This August, the Door Christian Fellowship McAllen Church made some unfortunate headlines after it came to light that the church had produced and staged a performance that made unauthorized use of original works from the blockbuster Broadway musical, Hamilton. By the end of the month, The Door had issued an apology for the unauthorized performances and agreed to pay damages and destroy any recordings of the staged performance in respect of the intellectual property protections of Hamilton’s creators.
While this unlicensed and infringing use was quickly dealt with by Hamilton’s legal team, there have been other instances of recalcitrant producers who have only been held accountable for staging unlicensed theatrical works after years of infringement. In December 2018, stage musical licensing firm Music Theatre International (MTI) was awarded $450,000 plus attorney’s fees by the Eastern District of Virginia against Ashburn, VA-based theater producer, Theaterpalooza Community Theater Productions, after more than a dozen unlicensed works were staged by the theater company and licensing demands were ignored for three years.
However, theater remains an artform rife with adaptations by fans of popular works of media. First produced in December 2015, Puffs, or Seven Increasingly Eventful Years at a Certain School of Magic and Magic has enjoyed a devoted following among Harry Potter fans for retelling the story of that series’ central character from the perspective of the oft-derided Hufflepuff House. Legal language on Puffs’ official website indicates that the show, which is rife with references from the Harry Potter books and movies, is not authorized, sanctioned, licensed or endorsed by J.K. Rowling or Warner Bros. The fair use defense under U.S. copyright law was also recently invoked by Atlanta, GA-based Sketchworks Comedy, which raised a successful parody defense against the creators of the popular 1970s romantic comedy musical, Grease, in order to stage its own production of Vape: The Musical.
Most Theater Production Teams are ‘Good Citizens’ on Paying Royalties
According to Drew Cohen, President and CEO of MTI, his company becomes aware of reports of unauthorized theatrical productions from time to time, often from members of the production team staging the unlicensed work. Cohen said that these scenarios range from the innocent infringer who may not clearly understand licensing laws, and who often quickly license after being contacted by the rightsholder, to more willful infringers who either don’t want to pay or want the ability to stage a show prior to the end of licensing exclusivity for Broadway or touring productions. “For the most part, people involved in theater tend to want to be good citizens, and when the requirements of licensing a show are made clear to them, they choose to follow the correct path,” Cohen said.
While MTI has had to take action against willful infringers like Theaterpalooza, Cohen notes that it has become much easier to monitor for public performances of unauthorized productions during the Internet age. Unlike film, music and other copyrighted content, which is consumed privately, theatrical producers typically take to social media and other Internet channels to advertise shows. “Where monitoring does fall short is in places where the performance does not require advertising,” Cohen said, citing summer camps and other closed ecosystems where the performance is only available to a private group. While monitoring productions has become easier in the digital age, Cohen said that it’s still difficult to control the duplication of underlying materials like scripts and scores that can be shared as PDF files.
A licensing entity like MTI, which can provide some resources for addressing unauthorized productions, will enter the picture once a theatrical work has already reached some form of maturity. Cohen indicated that MTI sometimes contacts the authors of a work even prior to a Broadway run to work out an agreement to transfer licensing rights for certain secondary markets, including international ones, once exclusive first-run Broadway or touring rights are extinguished. For some more valuable properties, MTI will commission shorter versions of scripts for its Broadway Junior series, and although there are requests to change script materials that MTI will not honor, Cohen said that such changes are ultimately up to the show’s authors. “We are sometimes surprised at how accommodating authors will be in allowing people more artistic license with their work, because they, too, are interested in seeing their work evolve,” Cohen added.
Online Notifications, Copied Graphics Can Raise Red Flags to Playwrights
Since first debuting in 2002 at the Institute of Contemporary Art in Boston, The MOMologues, a comedy about motherhood developed by writer and director Lisa Rafferty, has been produced 70 times in 30 states and six countries, including Brazil and India. Rafferty, who also teaches as an adjunct professor of theater at Bridgewater State University, co-authored the show with fellow moms Stefanie Cloutier and Sheila Eppolito. The play features a series of vignettes following a group of mothers as they experience the joys and trials of raising children, and the team of playwrights have also developed two sequels with stories about raising children through young adulthood.
Rafferty conducts her own policing against unlicensed productions of her work by setting up Google Alerts or Talkwalker notifications to stay aware of online postings containing the play’s title or other certain keywords. Red flags indicating to Rafferty that productions of The MOMologues or its sequels are unlicensed include misspellings of the show’s authors or improper capitalization of the show’s title. While those mistakes may be innocent errors in transcribing names and titles from the license agreement with Concord Theatricals, Rafferty said that her suspicions are raised even further when she sees a production that is lifting a logo created for a previous production of The MOMologues.
“A lot of productions create their own logo instead of buying the logo pack through Concord Theatricals. Now that their logo is on Google, other theater companies can run an image search and grab that artwork. It doesn’t mean the show isn’t licensed but it is a red flag, now that I know that they’re just grabbing artwork off of Google, maybe they’re downloading PDFs of the script illegally rather than paying for official scripts.”
One of those red flags led Rafferty to take a closer look at the May 2014 production of The MOMologues in Bangalore, India, which was not properly licensed at the time that it was staged. After alerting Samuel French, which licensed The MOMologues prior to being acquired by Concord Theatricals, to the suspected infringement, Rafferty noted that legal counsel at Samuel French was incredibly diligent in conducting licensing negotiations, even going so far as to translate one demand letter into numerous written languages germane to India to elicit a response, despite the relatively small amount of royalties paid for two unlicensed performances.
Dealing With Creative License and Fair Use Issues as a Playwright
However, playwrights often face issues with production teams changing the content of their shows even when the productions are properly licensed. In 2007, Rafferty and several friends and family members traveled to the Netherlands to see the opening production of a first-class tour of The MOMologues across 16 cities and towns in Amsterdam at theaters seating as many as 700 audience members.
Rafferty’s script was translated into several Dutch dialects for the tour by Daphne Deckers, well-known within the Netherlands as an actress and a writer. While Rafferty did not understand the language, an unexpected interpretive dance segment near the top of the show alerted Rafferty that some unwarranted creative license had been taken with her work. While Rafferty remembers having an argument with the director at the opening night party, she made the pragmatic decision not to protest the touring production. “It wouldn’t have been fair to the actors,” Rafferty said. “It had nothing to do with them, and they were doing their job brilliantly as best as I could tell from the language barrier. It would have hurt the actors, the theaters and the people who brokered the deal.”
Rafferty faced her own copyright issues in getting Samuel French to represent her licensing rights for The MOMologues. Officials at the licensing firm took issue with some content used by Rafferty in one particular scene featuring several mothers bemoaning the books they’ve re-read to their children hundreds of times. “In the scene as we wrote it, it opened with a mom character saying, ‘In the great green room,” followed by someone else saying ‘there was a telephone and a green moon,’” she said. “Everyone in the audience recognized the opening lines to Goodnight Moon and as soon as the characters said those first few lines, the audience would always join in.” However, Samuel French required Rafferty to change references to Goodnight Moon, Dr. Seuss and other popular children’s works to those in the public domain. “I asked if the excerpts were fair use and Samuel French did everything to support me but at the end of the day, we had to use public domain works,” Rafferty said.
Theater: A Necessary Communal Ritual Uniquely Immune to Technological Abuse
Providing further support to playwrights and composers on copyright infringement matters is the Dramatists Guild, which has formed an anti-piracy committee currently chaired by award winning composer Sean Flahaven. According to Ralph Sevush, the Dramatists Guild’s Executive Director of Business Affairs and General Counsel, the Guild’s copyright committee was originally formed in response to the illegal trading and downloading of musical scores online. The committee, which will be meeting in the coming weeks to discuss its agenda for the next year, operates a hotline at 1-855-71-WORDS through which people can anonymously notify the Guild about unlicensed performances or even unauthorized changes to scripts or scores, the latter of which is the focus of the Guild’s #DontChangeTheWords campaign. The committee also develops educational material for the public, including the music video for “Someone Wrote That Song,” a tune written by Broadway composers Alan Menken and Craig Carnelia that provides a puppet-animated primer on the negative impacts of unethical downloads.
The Dramatists Guild has also been an active advocate on recent changes to federal copyright laws. This February, the Guild was a signatory to a comment submitted by the Copyright Alliance regarding proceedings before the Copyright Claims Board (CCB), encouraging expanded availability of CCB proceedings through increased participation by law school clinics. According to Sevush, the Dramatists Guild continues to work with the U.S. Copyright Office on proposed modifications to the take-down mechanisms required by Section 512 of the Digital Millennium Copyright Act (DMCA).
While the Internet has made it much harder for playwrights and composers to control downloads of their scripts and scores, Sevush noted that online search and notification tools have made it easier than ever to address unlicensed productions, which he felt was a more serious issue for dramatists. “Plays aren’t just text,” he said. “They are a living experience, and it’s the performances of their work that makes up the bulk of a dramatist’s income.” Although script and score piracy is a concern, Sevush noted that more pressing issues for dramatists include lack of collective bargaining protections and the lack of respect that some production entities pay to the playwright’s original text and intent.
“Theater as an art form is uniquely immune to abuse by technological means… you can download a text, but a text is not theater. You can record a production and stream it, but that just turns it into television. Yet, since a shaman first danced around a fire to tell the story of the hunt in order to give the tribe the courage to hunt again tomorrow, theater has been a necessary communal ritual to connect us and strengthen us. It cannot be replaced, reproduced or retransmitted by WiFi. It must be shared with other people and experienced together in real time, in a real place. While that makes it more expensive and difficult to create and to access, it makes the live theater experience more profound and cathartic, as well as impervious to technology… at least until they invent the holodeck.”
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