Sunday, September 25, 2011

What Edward Einhorn did to my play TAM LIN and why all American authors should be concerned - part 8

The intrepid graduate student Kat Reynolds is working on a thesis that discusses theatre copyright issues and she asked me to discuss the TAM LIN case with her. This prompted me to review the case myself, which I have been doing off and on for a couple of months now.

One item of interest, and concern is this article by Joan Channick at the Theatre Communications Group web site. She argues in favor of a director's copyright and this is especially alarming coming from her since she is very well connected, being both the managing director of the Theatre Communications Group, the Director of the U.S. Center of UNESCO's International Theatre Institute, and an Associate Dean at Yale School of Drama.

I will be responding at length to her article later, but for now this strikes me as a very odd oversight. She says:
Although there is no definitive precedent yet, the couple of courts that have touched on the issue seemed inclined to find that direction is copyrightable... The first was a divorce case involving the royalties for an artistic director's direction of a play in the theatre where he was employed... The second was the well-known case where director Joe Mantello alleged that the Caldwell Theater Company in Florida's production of Terrence McNally's Love! Valour! Compassion! copied his stage direction...
She provides a link to the article in the New York Times that discusses the TAM LIN case Exit, Pursued by a Lawyer so she can't plead ignorance of that case. And in fact, unlike the Mantello case, we did not settle out of court, and most tellingly, the court did not "seem inclined to find that the direction is copyrightable." But just because the TAM LIN case goes counter to her claim doesn't mean it should not be addressed. The fact that our case was actually settled when Judge Kaplan ordered Edward Einhorn to cancel his copyright registration is significant.

Her solution to the issue of the disputes that are caused through the tradition-breaking quest for the director's copyright is contracts. But she's dreaming if she thinks that would be the end of it - what playwright would sign a contract allowing a director to own intellectual property based on their play? A playwright would be an idiot to agree to such a thing; the Dramatists Guild is dead-set against such an agreement; and those pushing for a director's copyright will not be bound, I am sure, by that solution since it would be an end to the director's copyright quest. Except between directors and the aforementioned playwrights who are idiots.

Even though the Mantello case was settled out of court - and Mantello received the equivalent of a director's fee, which sure sounds like it refutes Channick's claim that this is an example of a court looking favorably at a director's copyright - I believe it bears a closer examination. Based on the discussion in the Columbia Journal of Law & The Arts that I quoted from at length back in August, it appears to me that Mantello sued the Caldwell Theatre Company of Boca Raton, Florida on the basis of standard theatre practices - the Caldwell said they simply followed what was described in the published Actors version of the Love! Valour! Compassion! script. But Mantello decided to do a little legal prospecting in the hopes that the court would see copyrightable intellectual property in his work. It appears obvious to me that in spite of Channick's claim, the court did not see that. And of course neither did Judge Kaplin in the case of Edward Einhorn v. Mergatroyd Productions.

The theatre is a world of traditions, and if it ever became common for stage directors to copyright their stage directions - which I don't think will ever happen, but if - I think a new tradition should be born - or rather, rediscovered - directing a play will be an extension of writing a play. I see no reason why that couldn't happen - stage directing is not nearly as impressive a feat as stage directors would like the world to believe - and it would finally put a stake through the heart of the director's copyright issue.

One final observation about Channick's article - she has a very unrealistic view of the Patent Office. She writes:
But unlike the U.S. Patent and Trademark Office, which scrutinizes and accepts or rejects registration applications, the Copyright Office does nothing more than see that registration forms are filled out correctly and the fee is paid.
Clearly she's not aware of the patent trolling phenomenon, which can only exist exactly because the Patent Office is so careless.