A January 29, 2005 New York Times article titled "Exit, Pursued by a Lawyer," detailed a coming lawsuit about the right of a director (in this case, Edward Einhorn) to copyright his direction of a play. (Full disclosure: Mr. Einhorn once directed a staged reading of a play of mine.)
Here are the facts, taken from the article:
FAIRYLAND was in turmoil. During a tech rehearsal for the October 2004 Off Off Broadway production of "Tam Lin" — a play about a clash between mortal and immortal worlds — a real-life clash threatened to derail the show. Exactly what happened has become, literally, a federal case, and the sides agree on very few details. Did the playwright, Nancy McClernan, insist that the director's staging was incompetent? Did the director, Edward Einhorn, refuse to alter it? Did the producer, Jonathan X. Flagg, smash some furniture on the set? One thing's clear: the morning after the tech rehearsal, after two months of unpaid work, Mr. Einhorn was fired.
In the time-honored way of the theater, Ms. McClernan and Mr. Flagg figured the show must go on. With the help of an assistant (who eventually received the program credit for direction), they supervised the remaining rehearsals, either largely restaging the play or retaining most of Mr. Einhorn's contributions, depending on whose side you believe. In any case, "Tam Lin" opened, ran for its scheduled 10 performances and closed. But the drama was not over. Soon playwright and producer were embroiled in a lawsuit that could ruin them personally and has huge implications for directors and playwrights everywhere.
The main interest of that suit, which Judge Lewis A. Kaplan of Federal District Court in Manhattan has scheduled for trial in April, is not whether an artist deserves to be paid for work his employers deem unsatisfactory. What's really at stake is something much larger, because Mr. Einhorn claims in his complaint that his staging contributions to "Tam Lin" — contributions that his former collaborators say they excised — constitute a copyrighted work of intellectual property, owned by him, and that the defendants must therefore pay for infringing the copyright. When the lawsuit was filed, in October 2005, a new run of the play was already in rehearsal, this time directed by Ms. McClernan herself, who had always intended to make "Tam Lin" an annual Halloween event. Because Mr. Einhorn says that even these new performances represented unauthorized use of his work, the potential tab, based on the maximum allowable statutory damage of $150,000 per infringement, is now up around $3 million, not including several other remedies he is requesting — along with his original $1,000 director's fee.
The also article gives some historical background to the controversy. The author, Jesse Green, details Gerald Gutierrez's battle over what he considered an unauthorized reproduction of his 1992 Broadway production of "The Most Happy Fella" and Joe Mantello's similar battle over his staging of Terrence McNally's play "Love! Valour! Compassion!" in 1994 and 1995. However, neither of these legal pissing contests produced definitive case law regarding a director's copyright, so the question remains open.
And that question is: should a director be allowed to copyright his or her work and thus make the director's copyright co-equal to the playwright's?
And my answer: This is a bad idea.
I say that knowing full well how important a director can be to making the inert words on a page turn into a full-breathing theatrical event. I say that having heard myself say many times to the talented directors with whom I've worked that they made the piece come alive, even helped me understand better what it was I was trying to accomplish with script. But none of that rises to the level of a copyright and its protections.
Here's my take on the real issues in play here. It's all about power and money.
Theatre is the last place where the dramatic writer is the center of the action. Respect is paid to the words and the writer that wrote them, and the play is the pivot around which all else revolves -- unlike in film, where the writer is one part of the industrial event called a movie and ranks low-down on the hierarchy of worker bees.
As a playwright, I don't want the director to have a copyright on his or her work because it dilutes my centrality in the theatrical process. If I have the ghost of a past director always lurking in the rehearsal hall, then the creative possibilities for putting on the play get shortened, and I don't want any restrictions on what can be done with my script. If a director says to me, "You know, in this other production I saw, they did this," I want to be able to say, "Go ahead, use it" without having to fear the lawyer's knock.
And money. There are so few opportunities for making money in the theatre that I can't fault a director for coming up with a creative scheme to put a little more of it into his or her pocket, even if I disagree with, and will fight against, the approach. But it seems to me that there are contractual work-arounds here that avoid the copyright tar-pit -- percentages of the gate, bold typeface on the program, etc. -- and leave the playwright's centrality intact.
But in a society like ours, under the relentless capitalist pressure to commodify everything so that it can be parsed and distributed as profit, it's inevitable that "artistic contribution" will be fed into the grinder, and theatre may come to resemble the conglomerate activity of film-making, where writers' credits don't always adhere to the initial writer and the director's name comes last and most prominently in the opening credits.
So, there, I've given my litigious American answer to what appears to be poaching on the preserve of the playwright.
But something needles me about it, discomforts me, and I think it has to do with our American idea of property ownership, which is pretty militaristic: combat to preserve borders, defense of rights, and so on. I know for a fact that my sense of ownership of my work changes the moment it gets into the bodies of actors and directors. I know I wrote it -- I can bring up the images of sitting at the desk and so on -- but handing it off to others to shape and present alchemizes it so that, in some way, the work also becomes theirs, that is, they contribute to its growth, transmute its nature, and thus become attached to it (and it to them). It becomes the artistic equivalent of "the commons," a place owned by no one in particular but the responsibility of everyone as a community.
We can't deny that this transformation happens -- in fact, it's why we do theatre in the first place -- and these Zen moments of letting go that, paradoxically, bind us more closely together as artists are completely alien to the copyright-mentality that seeks to section-off and contractualize the creative process. The two have nothing in common, which in our society inevitably means having to using the legalistic half-measures for satisfaction that Mr. Einhorn and his adversaries have resorted to, which in their turn lead to everything but the satisfaction and understanding each side desires.
I'm not quite sure where this musing leads me. But it is worth noting the grind that happens when these different concepts of property and ownership come up against each other because the lack of fit between "property as mine" and "property as ours" in Einhorn v. et. al. signals a larger imbalance in our culture where "property as mine" ("mine" increasingly being defined by corporate imperatives) threatens to destroy any concept of "property as ours," that is, property in common, public property, property that no one owns but everyone needs. (Ironically, copyright was initially intended to increase knowledge in the public domain. Inventors would get a short amount of time to profit from their inventions, and then these works would move into the public domain so that everyone could enjoy their benefits. Now, copyright law essentially guarantees a stranglehold in perpetuity -- witness the Disney Corporation's successful campaigns over the years to extend the copyright on Mickey Mouse well past the rodent's due date. Copyright law is now all about impoverishing the public domain, not enriching it.)
We need new models and new behaviors. I don't know what those are or will be. But I'm going to find out.
An addendum: I gave this essay to my friend Elfin Vogel to read. (I interviewed Elfin for the special issue in October 2005 on the State of the Art.— q.v. www.archives.scene4.com/oct-2005/html/bettencourtoct05.html) Elfin has been and is a director and producer, among other things in the theatre, and here is what he wrote.
A few thoughts. First some background: I have encountered this problem three times: once, when I had a conceptual idea (running a play that was written chronologically in reverse order - no, not Betrayal - in chronologically correct order after playing it the way the playwright intended); the playwright agreed - no problem. The second time I was hired to direct Othello for a second time in 1991 after the critically highly praised production in NYC. The producer objected, claiming that the directorial concept was the property of her company. She did not prevail. The third time was not as direct: I was fired but the production was cancelled.
I think that a director needs protection for his/her ideas, and any producer who engages a director does so because they value them, so when there is a conflict, it must be resolved with some level of protection for the director. The problem is that it is often difficult to separate the director's ideas out of a whole where many collaborators have contributed.
I assume that here the burden of proof is on the director, who may have a difficult time isolating his ideas and proving that they are used in violation of his rights. In design, there is such a thing as commonly used ideas - i.e., you can't copyright a bookshelf, because it is a generic item, but if this bookshelf is made out of a very unusual material and using a very unique shape and perhaps manufacturing process, then those aspects can be copyrighted. Similarly, if I tell an actor to cross from left to right on a particular line, such a thing may not be specific enough to warrant the application of the concept of "unique design" or "unique idea."
The matter is a little simpler in commercial or other productions where a contract spells the compensation matter out, and there is the issue of "work for hire" where the work product belongs to the employer, who has acquired a form of license to use the ideas he contracted for.
I would think that if the director in this case was supposed to get some form of monetary compensation, the judge might limit his damages to this compensation, which the producer should have paid him if they used the "production" the director put together. A judge might add some punitive damages because the producer was possibly in breach of contract by not paying the director's fee. If a director works for free, he probably forfeits any right to monetary compensation after the fact.
I think that this matter is not really very difficult or of any particular artistic concern. Directors may need to develop their own contracts that spell some of the eventualities out - such as survival of directorial concept beyond the life of an initial production - but then they must provide extensive documentation (notes, photographs, memos of meetings, etc.) to define the concept and why it is so unique.
Flagg should have paid him after firing him, or cancelled the production (which in all likelihood would have been more expensive than the $1000 fee) and started over. I think this is not too heavy a burden to place on a producer. The monetary compensations demanded by Einhorn will probably not be granted by a court, and they exceed any expectation he might have for royalties from this production by such ludicrous amounts (though probably fit Einhorn's emotional disappointment).
By the way, I don't think that there is a contest between the playwright's rights and the director's, though a playwright's disappointment in the director's realization of the text might precipitate such a situation. In the case of Othello this did not apply. In the case of Blue Man Group, there was no playwright, but the director (I she was the former Artistic Director of the Soho Playhouse) prevailed because she contributed so substantially to the development of the piece, and with all the productions of this piece that are going on around the world, she was right (and the courts agreed) in insisting on a claim to her contribution. Why should others reap ALL the monetary benefits that resulted, to some part, from her involvement as director?
The playwright already has a level of protection that is quite extensive, and giving the director similar protections does not put limits on the playwright's rights. Also, the dispute between Einhorn and Flagg is only in part one between playwright and director, and the protection of the director's ideas can, as my other examples show, be one that involves no playwright at all.