Wednesday, July 11, 2012

Heading for Philly

Tom Tirney is a former member of NYCPlaywrights, and now the President of the Board of the Philadelphia Dramatists Center, as well as the Philadelphia regional representative of the Dramatists Guild. He invited me to speak in Philly this Sunday about The Strange Case of Edward Einhorn vs. Mergatroyd Productions. More about the event here.

Ralph Sevush, the president of the Dramatists Guild will also be there, which is great - he's a very good speaker. I was very impressed by his panel discussions at last years Dramatists Guild convention. And of course he took the stand on our behalf during the TAM LIN trial.

As any of my friends or family members can tell you, getting me to talk about this case isn't a problem - it's getting me to shut up about it.

But kidding aside, I think our case was much more important than many people realize. We got a federal judge to define a registration-worthy director's copyright (my bold emphasis):
The claimed ("blocking and choreography" script) consisted of movements of actors and positioning of actors. There is a very lively question, I suppose, as to whether that is an appropriate subject of the copyright as to which I express no opinion. If it is, however, the deposit copy certainly didn't cover it because it is impossible to discern with precision from the deposit copy just exactly what the movements were and what the positioning was.
The most important parts are "with precision"and "exactly what the movements were and what the positioning was" - directors typically write their directions down - if at all - in the margins of the script and the stage managers will also take notes. Einhorn subpoenaed our stage manager from TAM LIN and tried to claim that her notes could stand in for a copyrightable work. But even the best stage manager doesn't take notes that make it possible to "discern with precision exactly what the movements were and what the positioning was." The director, stage manager and the actors all work together to firm up the positioning and movements. The stage manager may write certain key bits of information down, but in practice what everybody does is eyeball it - if everybody agrees it looks right, it is right.

To document "with precision" the movements and positioning would be a huge, time-consuming pain in the ass.

And then of course there is the issue of how the work should be submitted to the US Copyright Office for registration. As I pointed out last summer, there's actually a good case to be made, based on a passage in the 1996 issue of Columbia Law and the Arts, that Edward Einhorn infringed my copyright:
Because the dramatist retains the sole right to make copies of the work under 17 U.S.C 106(1), and to distribute it under 17 U.S.C. 103, the director's act of copying the script and sending it to the Copyright Office is itself an act of infringement.

And in fact the registration that Einhorn submitted to the Copyright Office did not even have my name on it. My script, from which they removed my name, and on which Einhorn added some stage directions, was submitted to the Copyright Office as Einhorn's work - not even as a derivative work.

The Mantello case is often cited on the issue of a director's copyright, but if it was tried, I'm certain Mantello would have lost. Because as the Columbia Law and the Arts article points out, the theatre company sued by Mantello (aided and abetted by the Stage Directors and Choreographer's Society) was simply following standard procedure in using the Mantello-directed production's set of Terrence McNally's work:
Because it is rare that a dramatist will participate in rehearsals beyond the first production, the only insurance the dramatist has that the work will continue to be performed in accordance with her wishes, is to cause the script to be printed as performed. Indeed, it has hertofore been the custom to simply assume the New York production is one and the same with the play. For example, in the Love! Valour! Compassion! case, the playwright Terrence McNally included a preface in the Acting Version of the play, stating that the initial New York Production was "definitive." The author even told one reporter that it was his hope that regional productions would not stray too much from his intent, as reflected by the staging of the New York production.

Thus, the dramatist normally receives a copy of the stage manager's script upon the opening of the show. This is then incorporated in the script given to the publisher, which normally also becomes the licensing agent of the play for subsequent productions (other than first class productions, which only the dramatist can authorize)... Further, the script itself includes the following notice: 
All groups receiving permission to produce Love! Valour! Compassion! are required to (1) give credit to the Author as sole and exclusive Author of the Play in all programs distributed in connection with performances of the Play... and (2) to give the following acknowledgement on the title page of all programs distributed in connection with performances of the Play: 'Originally produced by the Manhattan Theatre Club on November 1, 1994.
In the Love! Valour! Compassion! case, one of the Caldwell Theatre's major defenses is going to be that they relied heavily on the Acting Version in preparing their production. The accused theatre's development director, William McCarthy, has stated "[i]n our mind, we didn't do anything out of the ordinary that any regional theatre that's trying to mount a production in two and a half weeks doesn't: you refer to the script and to other information that you get from the producing entity and you use it. According to the artistic director, the script sent to him by the licensing agency included explicit stage directions which mirrored the Broadway production. McCarthy continued, "[w]e reviewed [SSDC's] list of complaints, and for the most part were able to relate them back to information contained in the script. Thus, Dramatists Play Service will no doubt have to be added as a necessary party to the lawsuit. In turn, Terrence McNally, who authorized the publication, will also be drawn into the suit.
McCarthy is also quoted in Playbill:
"The SSDC wants to make it sound like we admitted to using Mantello's stage directions. We did not, and there's nothing in the joint statement to that effect," said McCarthy. "It says certain elements of the New York production were created by Mantello. It does not say `stage directions.' The problem is Mantello was calling everything stage directions. As the joint statement says, none of the legal issues have been resolved. No precedent has been set by this case."
So what Jonathan Flagg and I did was actually bring the question up for a decision by a judge, unlike the Mantello case. But because nobody involved in our case is famous like Mantello and McNally (in spite of Edward Einhorn's views of his career) this has been largely ignored by the theatre world. But on a legal level, that doesn't matter - if another director were to pull a stunt like Einhorn did, you better believe that the playwright's lawyer will look up our case and use Judge Kaplan's words against the director.

So to sum up, there are three roadblocks on the path to a director's copyright:
  1. The nuisance of having to write down with precision the movements and positioning. This would add a whole other level of administration to a stage production.
  2. The traditional practice of recording a world premiere's set and general blocking for a play's publication has never been accepted as grounds for a director's copyright, Mantello's out-of-court settlement notwithstanding.
  3. Although the Einhorns attempted to submit my play plus director's notes as an original work, in fact a stage director can never legally submit stage directions as a free-standing work - it will always be a derivative work, in a way that choreography (which the Einhorns tried to compare Edward's direction to) is not. The more accurate analogy, which the Dramatists Guild made, is the relationship of a conductor to a composer's work. Conductors do not copyright their conducting of a composer's work.
And of course there is the issue of any playwright and or producer being fool enough to let a director who is clearly recording his/her direction "with precision" to get away with it. You'd have to be an idiot to agree to such a thing.

Really, it's probably time I wrote a book about this.

Here's an article from Variety about the Mantello case, with the headline written in its inimitable style:

Helmers, scribes battle
To translate, "helmers" are directors and "scribes" are playwrights.