The Potential Consequences of Granting Copyright Protection for Stage Directions
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Cybaris® Volume 9 | Issue 1 Article 1 2018 To Be, or Not To Be: The otP ential Consequences of Granting Copyright Protection for Stage Directions Laura Temme Follow this and additional works at: https://open.mitchellhamline.edu/cybaris Part of the Intellectual Property Law Commons Recommended Citation Temme, Laura (2018) "To Be, or Not To Be: The otP ential Consequences of Granting Copyright Protection for Stage Directions," Cybaris®: Vol. 9 : Iss. 1 , Article 1. Available at: https://open.mitchellhamline.edu/cybaris/vol9/iss1/1 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Cybaris® by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW 1 TO BE, OR NOT TO BE: THE POTENTIAL CONSEQUENCES OF GRANTING COPYRIGHT PROTECTION FOR STAGE DIRECTIONS BY LAURA TEMME TABLE OF CONTENTS I. INTRODUCTION………...….……………..………….………..……1 II. BACKGROUND…...……….…..…….……………...…….…..……5 A. What are stage directions? .................................................5 B. Relevant copyright law….………………………………...7 1. Dramatic Works & Choreography….…………….7 2. Originality, Authorship, and Fixation………..….11 3. Limiting Doctrines…………....…...……………..12 III. THE UNCERTAINTY PROBLEM…………………...………......….14 A. For Directors – Roadblocks to Protection………………14 1. Previous Cases………………...……...…………15 2. Statutory Difficulties……......……..…………….18 3. Ownership Issues……………………...…………24 i. Works Made for Hire………..……...…….24 ii. The Prompt Book…………..…………….27 B. For Producers – The Black Raincloud of Infringement…31 IV. SOLVING THE PROBLEM OF “DIRECTOR’S COPYRIGHT……..…...37 V. CONCLUSION…..…...…………………………...………….……44 Published by Mitchell Hamline Open Access, 2018 1 2 CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW I. INTRODUCTION “Let’s start at the very beginning, a very good place to start.”1 An entire world of work occurs between a playwright putting pen to paper and an audience rising to their feet at the end of a performance. The final product is the culmination of work by producers, designers, actors, stage managers, backstage crew, directors, and many others. In a perfect world, every collaborator would be able to financially share in the success of a popular show. Directors are no different; there is no doubt they should be compensated for their work. A director’s work brings the words of a script to life. Over the last thirty years, some directors – especially on Broadway – have attempted to get copyright protection for their stage directions. But for all its value, there has been no consensus on whether the director’s contribution to a production is copyrightable in and of itself. Others have written on both sides of this issue,2 but none have addressed the consequences of granting such protection for the rest of the industry. Stage directions present a complex problem because they are, after all, directions. They are suggestions based on the playwright’s script, without which the stage directions would not exist. The director’s job is to come up with a concept for the show and its characters and use that concept to guide the actors in their reading of the script. This paper will first explore the role of stage directions, relevant copyright law, and the effect uncertainty of protection has on directors as well as producers. What follows is an analysis of the long-term consequences of granting copyright protection for stage directions. Finally, there will be a section outlining methods by which directors can be rewarded for their work, outside of copyright law. When we consider the effect granting such a copyright would have outside of Broadway, especially with respect to regional non-profit theatres, the benefits outweigh the costs. 1 Richard Rodgers & Oscar Hammerstein, The Sound of Music (1959). 2 See BETH FREMAL, THEATRE, STAGE DIRECTIONS & COPYRIGHT LAW, 71 CHI.-KENT L. REV. 1017 (1996); MARGIT LIVINGSTON, INSPIRATION OR IMITATION: COPYRIGHT PROTECTION FOR STAGE DIRECTIONS, 50 BOSTON COLLEGE L. REV., 427 (2009); DEANA S. STEIN, “EVERY MOVE THAT SHE MAKES”: COPYRIGHT PROTECTION FOR STAGE DIRECTIONS AND THE FICTIONAL CHARACTER STANDARD, 34 CARDOZO L. REV., 1571 (2013). https://open.mitchellhamline.edu/cybaris/vol9/iss1/1 2 CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW 3 II. BACKGROUND A. What are stage directions? The amount of guidance a playwright provides for the physical action an audience sees on stage varies; some include detailed, almost poetic, stage directions in their scripts to dictate how scenes should play out.3 Others take a page from William Shakespeare, who provided very little direction unless the scene required something unusual, like, “Exit, pursued by a bear.”4 For everything in between, the job of framing the action falls to the director. They provide actors and designers with the guidance necessary to steer the production in the direction they want to go. For the actors, this is accomplished through stage directions, also known as “blocking.” Blocking is what separates reading a script from “doing” a work of theatre. It is the way the actors embody the script; moving around the stage as if the scene were real.5 Effective blocking makes a production accessible and interesting for the audience; ineffective blocking can make even the best performers appear awkward or disingenuous. Even casting choices can play in to blocking, and ultimately the way a work is viewed by an audience.6 In the legal sense, stage directions generally refer to instructions for the actors’ movements, gestures, and dramatic action, and/or suggestions for scenery.7 3 Sarah Ruhl, author of fourteen stage plays including “The Clean House” and “Dead Man’s Cell Phone,” is known for writing stage directions that challenge directors as well as actors. In “Eurydice,” one of her stage directions reads: “He makes four walls and a door out of string. / Time passes. / It takes time to build a room out of string.” See John Lahr, Surreal Life – The plays of Sarah Ruhl, The New Yorker (March 17, 2008), http://www.newyorker.com/magazine/2008/03/17/surreal-life. See also http://www.sarahruhlplaywright.com/plays. 4 WILLIAM SHAKESPEARE, The Winter’s Tale, act 2, sc. 3. 5 The actual term may have come from Victorian dramatists, like Gilbert & Sullivan, who used miniature models of their theaters and wooden blocks to plan out their productions. Theatre Development Fund, Blocking, TDF Theatre Dictionary (Feb. 15, 2015), http://dictionary.tdf.org/blocking/. 6 For example, in Ibsen’s A Doll’s House the leading female role is traditionally portrayed as a meek, doll-like figure. The Mabou Mines theatre company in Brooklyn turned this tradition on its head in their 2003 adaptation, DollHouse, by casting a tall leading lady and having all the male roles played by actors who were approximately four feet tall. See Mark Fisher, “We’ve really upset some men,” The Guardian (August 7, 2007), https://www.theguardian.com/culture/2007/aug/07/edinburghfestival2007.edinburghfestival 1. 7 UNITED STATES COPYRIGHT OFFICE, Works of the Performing Arts, Compendium of U.S. Copyright Office Practices, Third Edition, Chapter 800, 61 §804.3(D) (Dec. 22, 2014), https://copyright.gov/comp3/chap800/ch800-performing-arts.pdf. Published by Mitchell Hamline Open Access, 2018 3 4 CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW In the end, nearly everything a director does can be seen as some form of stage direction.8 B. Relevant Copyright Law 1. Dramatic Works & Choreography/Pantomime The Copyright Act provides a non-exclusive list of eight categories which describe the subject matter of copyright protection.9 Because these categories are intentionally vague courts are permitted, although not required, to recognize types of works that are not listed to nevertheless be protectable.10 Of these eight categories, two are closely tied to the world of theater: Dramatic Works and Pantomimes/Choreography. “Dramatic works, including any accompanying music” are protectable works of authorship under the statute, but there is no statutory definition of “dramatic works.”11 In case law, a dramatic work has been described as “a work in which the narrative is told by dialogue and action, and the characters go through a series of events which tell a connected story,” or a work where “we see the event or story lived.”12 The term “pantomime” also has no specific legal definition, but is often used in reference to works where performers express meaning through gestures.13 It has also been described as “the art of imitating . or acting out situations” usually without accompanying music.14 In the words of Justice Holmes, “[a]ction can tell a story, display all the most vivid relations between men, and depict every kind of 8 Hence the title of: “director.” 9 Copyright Act of 1976, 17 U.S.C. §102(a). “Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.” 10 NIMMER ON COPYRIGHT, THE SCOPE OF PROTECTABLE WORKS UNDER STATUTORY COPYRIGHT, §2.03(A). 11 Id. at §2.06(A). 12 Id. See also O’Neil v. General Film Co., 152 N.Y. Supp. 1028, 1032 (Sup. Ct. 1915); Kalem Co. v. Harper Bros.,