1 Not Throwing Away Their Shot:1 Copyright
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Not Throwing Away Their Shot:1 Copyright Authorship and Royalty Pools for Broadway Actors by Kyle Serilla2 INTRODUCTION: “The revolution’s happening in New York.”3 Hamilton: An American Musical is not just a hit. It’s a phenomenon. With its hip-hop infused score, “color-conscious” casting,4 and a charismatic writer/leading man as its face, Hamilton is the rare exception to the rule: a stage musical that has embedded itself into the national zeitgeist. Productions soon will cover, not only the country, but also the globe.5 With such success, Hamilton productions will likely be running for decades and decades. There are likewise hundreds of millions to be made, possibly billions.6 Relatively late in Hamilton’s path to success the parties that would share in some of that money changed.7 Well, at least slightly. In April 2016, it was announced that Producer Jeffrey Seller had agreed that more than two dozen actors and dancers, who were apart of the show’s development and first productions, 1Cf. LIN MANUEL MIRANDA, My Shot, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015) (“Not throwing away my shot”). 2 Kyle Serilla is a 2018 candidate for Juris Doctor, Intellectual Property Certificate at IIT Chicago-Kent College of Law. Before attending law school, he was a casting consultant and casting associate for both union and non-union theatrical productions in Chicago. 3 LIN MANUEL MIRANDA, The Schuyler Sisters, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 4 Spencer Kornhaber, Hamilton: Casting After Colorblindness, The Atlantic, (Mar. 31, 2016) https://www.theat- lantic.com/entertainment/archive/2016/03/hamilton-casting/476247/ (“Hamilton is not, by the common definition, colorblind. It does not merely allow for some of the Founding Fathers to be played by people of color. It insists that all of them be.”); see Teresa Eyring, Standing Up for Playwrights and Against ‘Colorblind’ Casting, American Theatre (Jan. 7, 2016) http://www.americantheatre.org/2016/01/07/standing-up-for-playwrights- and-against- colorblind-casting/ (“Color-conscious casting intentionally considers the race and ethnicity of actors and the characters they play in order to oppose racism, honor and respect cultures, foster stronger productions, and contribute to a more equitable world.”). 5 David Gelles & Michael Paulson, ‘Hamilton’ Inc.: The Path to a Billion-Dollar Broadway Show, NY TIMES, (June 8, 2016) https://www.nytimes.com/2016/06/12/theater/hamilton-inc-the-path-to-a-billion-dollar-show.html (discussing how “Hamilton” productions will soon total five: New York, Chicago, two national tours, and London). 6 Id. (“But there is a demonstrated path to riches for the few musicals able to translate Broadway success into long- running and international popularity: “The Lion King” and “Phantom” each claims to have grossed more than $6 billion worldwide, and “Wicked” has passed $4 billion.”). 7 Michael Paulson, ‘Hamilton’ Producers and Actors Reach Deal on Sharing Profits, NY TIMES, (April 15, 2016) https://www.nytimes.com/2016/04/16/theater/hamilton-producers-and-actors-reach-deal-on-sharing-profits.html. 1 would share some of the musical profits, including future productions.8 This re-writing of the actors’ contracts after the show’s cemented success, stunned the industry.9 Although Actors’ Equity Association (“AEA”), the union for actors and stage managers, had sought a workshop contract10 in the early development of Hamilton that would allow for profit sharing, no agreement on profit sharing was ever made.11 “The actors instead signed modified lab contracts that gave them a right of first refusal to their roles, but not royalty participation. They began asking the producers to reconsider, and grant them a share of the profits, in August, as the show was opening on Broadway.”12 The actors hired a lawyer.13 “It took them eight months after the Broadway production opened to win an agreement; they had argued that it was not fair, given their contributions to the show, to exclude them from sharing in its success.”14 The New York Times reported that Hamilton’s success had “prompted an uncomfortable debate within the theater industry about money and credit for performers who help create hit shows.”15 Along with royalty debate, the legal community has debated whether actors are eligible for copyrights in their created work. This paper looks into the legal status for actors’ contributions to Broadway musicals. Part one of this note gives context to the highly collaborative nature of musical theater. The second part of this note looks at the creation and success of the musical A Chorus Line; the production that brought the workshop and actors’ inclusion in royalty pools to 8 Id. 9 See Id. 10 See Workshop Agreement Overview, ACTORS’ EQUITY ASSOCIATION, (Amended April 4, 2014) http://www.actorsequity.org/docs/rulebooks/Workshop_Overview.pdf. 11 Paulson, supra note 7. 12 Id.; see Daniel Kuney, Actors' Equity Developmental Workshops, Labs & Readings, Jump Start Entertainment (Jan. 13, 2016) http://www.letsjumpstart.com/blog/actors-equity-developmental-workshops-labs-readings (comparing AEA agreements for developing work including workshop and lab contracts). 13 Gelles, supra note 5. 14 Id. 15 Paulson, supra note 7. 2 Broadway. The third part of this article reviews the possible arguments for copyright authorship for Broadway actors. The fourth part of this article reviews the use of royalty pools for Broadway productions and argue for their wider use. I. The Collaborative Nature of Musical Theater: “the room where it happens"16 “Perhaps more than any other art form, theater depends on collaboration.”17 Thus, musical theater with even more contributors than a typical play is that much more collaborative. The artistic team traditionally comprises of a composer, a lyricist, a book writer, a director, and a choreographer, all working to craft a show that works. In a world of collaboration these strict categories of authorship do not always stay clear and neat. Stephen Sondheim is credited with lyrics for the classic West Side Story. Yet, in working so closely with composer Leonard Bernstein, Sondheim apparently wrote some music and Bernstein offered up some lyrics. Sondheim was offered a co-composing credit but turned it down apparently out of humility – a costly decision he still laughs at with regret.18 The creation of the the iconic “Rose’s Turn” from Gypsy is another famous story involving Sondheim where authorship lines blur.19 When director /choreographer Jerome Robbins realized he did not have the time to stage the climatic surreal ballet sequence that would show the character Rose’s mental breakdown, it would have to be a song.20 Composer Jule Styne, 16 LIN MANUEL MIRANDA, The Room Where It Happens, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 17 ROBERT VIAGAS, ET AL, ON THE LINE THE CREATION OF A CHORUS LINE 21 (2006). 18 STEVEN SUSKIN, OPENING NIGHT ON BROADWAY: A CRITICAL QUOTE BOOK OF THE GOLDEN ERA OF THE MUSICAL THEATRE, 697 (Schirmer Books 1990); See Stephen Sondheim Interview, YOUTUBE (SEP 21, 2011) https://www.youtube.com/watch?v=yW7gTYtTN50. 19 See STEPHEN SONDHEIM, FINISHING THE HAT COLLECTED LYRICS (1954-1981) WITH ATTENDANT COMMENTS, PRINCIPLES, HERESIES, GRUDGES, WHINES AND ANECDOTES, 75-77 (2010). 20 Id. 3 however, could not attend the meeting to discuss the new song.21 Thus, Sondheim and Robbins stayed up late into the night and the outlined musical number where different segments of songs that were heard earlier in the score would be mashed together as a kind of musical metaphor showing Rose’s mental breakdown.22 It was fitting that a non-traditional number would have a non-traditional birth; the writing credits are traditional, however: “Rose’s Turn,” music by Jule Styne and lyrics by Stephen Sondheim.23 Interestingly Benj Pasek and Justin Paul, one of the most successful new songwriting teams for Broadway and the screen, share non-traditional billing for their songs as “Music and Lyrics by Benj Pasek and Justin Paul.”24 Some insiders assume Paul, who is often seen playing piano for the duo’s press and concerts, is responsible for the music and Pasek is responsible for their lyrics.25 When asked about their writing process the duo uses “we” often but do allude to Paul’s emphasis in music and Pasek’s in lyrics.26 While one could say that it is their process that appears to be non-traditional, thus creating their billing, it could be said that they simply have a more realistic idea of what collaboration entails.27 Actors can also inspire authors as their muses. Traditionally, musical comedies were star vehicles written for specific performers. The brassy voiced Ethel Merman had many shows and scores written for her, Gypsy, for example. Sondheim wrote Sweeney Todd with Angela 21 Id. 22 Id. 23 See Id. 24 See, e.g. BENJ PASEK & JUSTIN PAUL, DEAR EVAN HANSEN: VOCAL SELECTIONS (Hal Leonard 2017). 25 See, e.g. Seth Rudetsky, DECONSTRUCTING: Dear Evan Hansen, YOUTUBE (Playbill Video 2017) https://www.youtube.com/watch?v=SlPZLDC_ZB8 (attributing to the music to Justin Paul and lyrics to Benj Pasek for “Waving Through a Window” from Dear Evan Hansen). 26 See Rebecca Milzoff, How We Wrote It: Benj Pasek and Justin Paul on Imagining a 'Dear Evan Hansen' Anthem, BILLBOARD (June 10 2016) http://www.billboard.com/articles/news/broadway/7825749/how-we-wrote-it-benj- pasek-and-justin-paul-on-imagining-a-dear-evan (“Paul: Then we’ll start to musicalize that phrase. If we can find a way to tuck it into a chorus, or some musical phrase, when we’re staring at the blank page it helps to have something.