How to make sure your production doesn’t get shut down.
In the past few months, the news has carried several stories about plays and musicals being “shut down” by authors. In this post, I’ll explain why, and also how savvy producers can avoid a similar fate for their productions.
In June, at least two productions were forced to close right after opening. A produxtion of David Mamet’s “Oleana”,at Milwaukee’s Alchemist theatre was shut down after the author and his representatives learned that a lead female role was being played by a man. And, a much anticipated production of “Hands on a Hardbody” at Theatre Under the Stars in Texas found itself shut down abruptly after one of the authors attended a performance and discovered that the order of scenes and songs had been changed by the production’s director. But this isn’t a brand new phenomenon. In 2009, I wrote about a situation in which Stephen Sondheim ordered an Australian production of “Company” closed unless the unauthorized “cuts” were restored. And last year, I wrote this blog post on the subject. In cases like this, producers risk total loss of their investments in the productions. The sad fact is, it’s all easily avoided.
Why is it possible for a production to be stopped?
“Of course,” you’re thinking, ” if the producers didn’t properly license their productions from the copyright holders, it make sense that they get shut down”. But in all of the cases I’m referencing, the producers DID, apparently, obtain the rights to present the shows.
What they didn’t do, however, is obtain permission to make changes to the text, music, or characters created by the authors in the first place.
You see, nearly every production agreement contains a clause saying, essentially, that no changes to the material may be made without the prior, written approval of the author (or licensor, if dealing with a publisher like Samuel French, Tams-Witmark, MTI, etc. these approvals aren’t often granted. The expectation is that the material will be presented as written
So, any changes that are made without approval amount to the creation of unauthorized derivative works. And therefore, copyright infringement.
Grounds for Termination
Additionally, most contracts between licensors and producers explicitly provide that any violation of the above provision is grounds for immediate termination of the production license. And, once the license is terminated, any further presentation of the play amounts to another infringement of copyright
Since copyright law provides for injunction as a remedy, the authors and their representatives have the power to require that offending productions cease and desist, and wise producers comply. If they defy, and the Courts become involved, they could wind up paying hundreds of thousands of dollars in damages, and be enjoined from further infringement. But, equally important is that producers don’t want to burn bridges with playwrights or licensors. they want to be able to produce another show next year, etc. So, quick compliance and an apology only make sense.
Well, for one, present the work as it was written.
Do not make changes to the material you license, at least not without obtaining approval to do so. At best, it is rather presumptuous of a director to think he or she knows better how to tell a story than the show’s original authors. At worst, it’s disrespectful of the authors, the work, and of the audience who are misled into thinking they are seeing what the playwright intended.
Contracts with creative staff, like director, music director, and designers, should specify a requirement that no material changes to the work may be made without approval, and that the producer must be notified of all proposed changes BEFORE they’re made, and with ample time to seek and obtain author approval. Failure to comply should be grounds for termination, since it exposes the producer to a significant risk of loss if the show is shuttered. This isn’t rocket science, but the help of an experienced entertainment lawyer can certainly make things easier.
Secondly, if you do obtain approval for your changes, stick to what’s been approved. And, get the approval in writing, make sure it’s specific, detailed, and clear. Have your lawyer review the permission and advise you.
Finally, don’t even think about producing a play without a license. The risks are far too great.
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