It’s easy to agree that productive, popular artists should be properly paid. But should every sort of creativity be legally considered property? The question rears its head, once again, as a number of directors in the theater claim that their stage directions for plays are copyrighted works, and that future directors may not copy them without permission, payment or attribution.
Jesse Green reports in The New York Times (January 29, 2006; registration required) that a trial is schedule in federal district court in April on whether Edward Einhorn’s staging of the play Tam Lin constitutes a copyrighted work. It seems that some of Einhorn’s former collaborators produced Tam Lin in ways that Einhorn considers a ripoff of his direction — the positioning and movements of actors on the stage, the lighting, the choice of music, and so forth.
To be eligible for copyright protection, copyright law has always required that a creative work be in some fixed and tangible form. Words must be printed on the pages of a book, music must be embedded in a CD, images must be burned into photographic paper. So how is stage direction fixed and tangible? One director argues that photography and choreography both enjoy copyright protection, and stage direction is merely a combination of the two — “the creation of stage pictures and movement.” Another director prepared a special annotated copy of a play script which detailed his staging directions.
Needless to say, playwrights are not entirely happy at what they see as a power grab by directors. Ralph Sevush, executive director of the Dramatists Guild of America, says that a director’s work amounts to “moving around the copyrightable contributions of others.” A director is a kind of interpretive artist — creative and often critical to a great performance. But their work is compensated through contract payments, and should not be considered property, say playwrights.
John Weidman, President of the Dramatists Guild, argued that copyrights on stage direction “would clearly operate as liens on a playwright’s play” and have “a potentially devastating effect on the facility and vitality of theatrical production.” Essentially, property rights on stage direction would nip future creativity in the bud. As Times reporter Jesse Green explained:
If each director’s staging of a relatively new play had copyright protection, very soon there would be no staging options left. The play would become so encumbered with licenses, or the risk of lawsuits, that it would be impossible to produce — a net loss to the culture. Even classic works like Romeo and Juliet might gradually be removed from the public domain, thus perverting the aim of copyright law, which is to increase the flow of ideas and artwork by providing an incentive to their creators. “If Leonard Bernstein had been in a position to copyright his interpretation of Mahler,” Mr. Weidman asked, “would another conductor who thought that interpretation was right, and then conducted Mahler in the same way, be stealing from Bernstein?”
Ah, reply directors, but if the theater is truly a collaborative art form, then why do playwrights get all the glory and revenues from the hundreds of dinner theater performances inspired by a successful Broadway production? As usual the fight over equity is a fight over memory: Who most deserves the credit?
The tragedy here is that strict property norms — copyright law — seem to be the default system for resolving an issue that involves artistic pride and reputation as much as money. Before getting sucked into the maw of property discourse, however, I think creators of all stripes should pause and consider how enlarging the scope of copyright law is not likely to provide a solution; indeed, it would likely undermine the creative collaboration that lies at the heart of the theater. Fortunately for western civilization, neither the Greeks nor Shakespeare felt the need to assert broad follow-on rights to their plays, let alone the stage directions.
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