Should there be a “Director’s Copyright” in stage directions? (Reader survey)
I've recently been grappling with a question of whether a theater director's efforts to stage a play or musical can be protected by copyright.
Now, at first blush, this might seem a simple issue, but it's actually rather complex. The parameters established by copyright law itself, are inconsistent with the custom and practice in the theater industry, which is also inconsistent with some of the typical contracts found in theater production projects.
Here's what I mean.
Directors routinely include in their contracts a clause providing that the Director will own the “direction” of the show, and shall have the right to copyright it in his/her own name. This is true, certainly, in Directors who are members of the SDC, the union representing stage directors and choreographers, which means, that producers have agreed to this provision in the course of collective bargaining.
The trouble is, under copyright law, a copyrightable work created by an employee in the course and scope of his employment (as with a director hired to stage a production), belongs to the employer, rather than the employee. This is one part of the often-misunderstood “work made for hire” definition contained in the U.S. Copyright Act. (the other doesn't apply to theatrical productions, so I'll save that discussion for another post).
What complicates things even more, is that in theater, and under Copyright law, the playwright, composer and lyricist own the show, and in almost all cases, the contract for the production of a play or musical provides that any changes or additions to the show must be approved by those authors, and if so approved, become a part of the show, and therefore the authors' property. Since the production contract is often signed before a director has been hired, isn't the producer, simply by hiring a director under the terms of contract allowing the director to own the “direction” of the show, a breach of the production agreement between producer and authors?
Since the direction of a play is, necessarily based on the play itself, it is a “derivative work”, and therefore requires permission from the copyright holders (i.e., the authors). Moreover, the only way the direction of a show can even be eligible for copyright protection is if it is “fixed” in some tangible medium, and that fixation, too would require the authors' permission.
Now, this whole issue hasn't been litigated very much, and the few cases dealing with this issue have arisen out of “copycat” directors of subsequent productions. In those cases, the rights to stage the show had been obtained from the authors, but under a license that didn't make reference to the staging and direction of the performances. In at least two cases (both involving the musical Urinetown (which I wrote about here and here ), the producers of the original production sued later productions that were too similar to the originals.
So, I'm taking an informal poll. Who really should own the direction of the play or musical? Should the director be entitled to a royalty if his/her staging is re-created by later licensees of the show? Should the show's authors benefit from the efforts of other creative team members in this way? Should play publishers begin licensing the direction along with the book, music and lyrics?
Please let me know your views on this by commenting. I'll publish a summary of the results in a few weeks.
While directors, actors, designers, dramaturgs, and the multitude of other folks who contribute their skills and insights to stage productions might–and often do–contribute creatively to a production, their work is, at best, derivative of the original author’s (playwright’s) work. To create separate copyrights for these myriad artists and artisans would lead to an impossibly intricate maze that would encumber theatre organizations and producers in a nightmarish clearance process for nearly every aspect (designs for scenery, lighting, costumes, makeup, properties, effects, mechanisms, etc.) of a production.
A stage manager’s prompt script is the closest fixation of the many components of a production; as the person who assembles, harmonizes, coordinates, and records disparate elements into a unified presentation, should not the stage manager have a dominant interest in the copyright ownership of a production–more than a director who merely propounds concepts and ideas that the stage manager “fixes”? Why is a stage manager more “for hire” than a director?
In some instances, directors (and indeed, entire performing companies) have been named as co-authors in both copyrights and credits for a dramatic work. Practically, collaborative writing with a joint copyright seems to be a straight-forward and practical contract arrangement to include a director (or other significant creative contributor) in a single copyright.
The current copyright statutes seem easily to accommodate co-authorship. A “director’s copyright” would instigate a complex, cumbersome array of derivative copyrights that would stymie and ultimately prevent multiple productions of a playwright’s script.
A playwright has a hard enough time getting a play produced and performed without his/her script being locked into a single production concept by a previous director’s derivative claim. Eventually, we’d wind up with so much fear of litigation, that plays would only receive one original production and then disappear from the market. This way lies madness.
Thanks for your thoughtful and detailed response. To answer the issue about the Stage Managers Prompt book as fixation, I’d argue that the stage manager is “Fixing” the contents of the prompt book as an employee of the producer, and that therefore, the results and proceeds of those efforts are property of the Producer, and not the SM. But, since the production agreement between authors and producer provides (in most cases) that any changes, additions, etc. are property of the Author, the prompt book contents, arguably belong to the Authors of the show.
There’s a good article on a related subject by Jennifer Womack from the Fordham Law Review you can find it at 18 Fordham Intell. Prop. Media & Ent. L.J.. 225-251 (2007)
“…belongs to the employer, rather than the employer.”
I think you were looking for employee the second time.
Yup, good catch!
That feels a little risky to me. If we’re both working from the same source material and we’re working in the confined space of a theater it seems that there’s a good chance we’d hit on a lot of similar ideas for implementation.
The director is a royalty recipient just like the playwright, composer and lyricist, so I don’t see how the work-for-hire argument applies here, unless we are talking about certain non-profit theaters where the artistic director is also the director of the production. Maybe some clarification is necessary in that aspect.
As for the main question, I feel that the director’s work falls into the “idea” realm more than a tangible, you-can-nail-it-down-to-this kind of work. Staging is just one aspect of it, and what about the contribution of the set designer? What about pacing, tone and body language – is there a way to copyright those and on what grounds?
So the provision to copyright director’s work is by itself very flawed. That’s the issue to address.
Here’s one for you, Mr. Firemark.
A director wanted to direct my playwright friend’s play in an Off Broadway theater. My friend agreed. After getting the booking, the director then demanded the playwright sign a contract. This contract would give the director the right to be attached to all future productions of the play.
The playwright said, “Sure. When hell freezes over.”
Absolutely not. Blocking is kinetic and as such it is not “fixed in a tangible medium of expression,” a prerequisite for copyright protection.
Moreover, no director should be allowed to encumber the playwright’s work, which could (and already has) led to frivolous lawsuits. If the playwright gives consent to the creation of a “derivative work,” that’s another story, but that’s not likely to happen.