Who owns a play that’s partly improvised?

Last week, a colleague asked me the following question:

If an actor improvises lines in a play, and the “author”/director of the play later wishes to write a screenplay which incorporates the actor's improvised dialogue, does he have to obtain rights to that dialogue?  What is the written (or unwritten) rule regarding the incorporation of improvised dialogue … in this case, a large part of the character's dialogue in the work?

This is an interesting and common issue in the theatre business. It's actually pretty well established law in favor of the playwright.

Generally, the party who “fixes” the work is entitled to the copyright, unless there was an agreement that the work would be a Joint Work. (Joint Work must have been the INTENT of the parties at the time the work was created and fixed). If the director/playwright  “fixed” the work by recording it (either on paper, audio, or video), he owns the copyright.

Custom in the theatre industry (as evidenced by nearly every production agreement between a producer and a playwright) is that the playwright owns any and all changes to the material made or suggested by the director, producer, actors, etc. (Unlike in the film biz, the Playwright has the absolute right, in his/her sole discretion, to approve or reject changes to the play). (see, for an example, the Dramatists Guild Approved Production Contract(s))

Here, the Director is also the playwright, so I think, absent an agreement to the contrary, the Director/author owns the copyright in the play, and therefore the right to adapt it as a screenplay.

This issue also sometimes arises in cases dealing with so-called “company created works”, where a theatre company comes together and collaboratively creates a show. Who gets the copyright? The company? The person who sets the project in motion, acting as ‘author' in selecting the various contributions, etc.?

In the case of Erickson v. Trinity Theatre, Inc., 13 F. 3d 1061 , 7th Cir. 1994, this issue was resolved in favor of the playwright. Notwithstanding the collaborative nature of the process, in that case, the playwright held the copyright, and the theatre company was enjoined from continuing to present the show(s) (and videos embodying them) after her departure from the company.

See also the RENT case ( Thomson v. Larson, 147 F. 3d 195, 2nd Cir. 1998) in which the dramaturg claimed (unsuccessfully) that she was a joint-author.

And see, Childress v. Taylor, 945 F.2d 500 (2d Cir.1991) which establishes the test for Joint Authorship. (the mere fact of collaboration alone is not sufficient. The parties must each contribute independently copyrightable material, and must manifest an intent that the work be held jointly)

Here in the 9th Circuit, the question of joint authorship arose in a case dealing with the ‘authorship' of the Malcolm X film: Aalmuhammed v. Lee, 202 F. 3d 1227 – US: Court of Appeals, 9th Cir 2000 (Summary Judgment for Defendants, finding that no material issue of fact existed with regard to Defendants' intent that plaintiff NOT be a joint author).

So, where works are created as a result of collaborative improvisational efforts of the actors, working with a director, writer, dramaturg, and others, the usual expectation is that the playwright will own the rights to the material created.    To a certain extent, well written contracts and business practices can change this result, but they must be in place prior to the creation of the work.  If you're working with others on any creative venture, it's important to handle issues of ownership, control and division of revenues early.  The help of an experienced theatre and entertainment lawyer  is invaluable in such situations.