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Home , A Chorus Line, Hamilton (musical), Henry Krieger, Tom Eyen

Not Throwing Away Their Shot:1 Copyright Authorship and Royalty Pools for 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, 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 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, , on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY ( 2015) (“Not throwing away my shot”). 2 Kyle Serilla is a 2018 candidate for Juris Doctor, Intellectual Property Certificate at IIT -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, , on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 4 Spencer Kornhaber, Hamilton: Casting After Colorblindness, , (Mar. 31, 2016) https://www.theat- lantic.com/entertainment/archive/2016/03/hamilton-casting/476247/ (“Hamilton is not, by the 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 (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 ). 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: “” and “Phantom” each claims to have grossed more than $6 billion worldwide, and “” 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 to reconsider, and 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 . Yet, in working so closely with composer , 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 ,

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 21 (2006). 18 STEVEN SUSKIN, OPENING NIGHT ON BROADWAY: A CRITICAL QUOTE BOOK OF THE GOLDEN ERA OF THE , 697 (Schirmer Books 1990); See 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 , 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 had many shows and scores written for her, Gypsy, for example. Sondheim wrote with Angela

21 Id. 22 Id. 23 See Id. 24 See, e.g. BENJ PASEK & JUSTIN PAUL, : VOCAL SELECTIONS (Hal Leonard 2017). 25 See, e.g. Seth Rudetsky, DECONSTRUCTING: Dear Evan Hansen, YOUTUBE ( 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. And we build out around that; I’ll start to fill out some music around the chorus, Benj will fill in some lyrics, we go back and forth.”). 27 See also Id. 4

Lansbury in mind and Sunday in the Park with George for Bernadette Peters. He was known to write material post-casting for the specific abilities of those cast.28 The short phrases of

Sondheim’s only real “hit” song “Send in the Clowns” was written around the thin voiced Glynis

Johns.29 Even as the draw for new musical theater has moved somewhat away from stars, writers have their muses.30 wrote their 2017 Tony Award winning Dear Evan Hansen score for , who won his own Tony Award for his portrayal.31

It is not surprising then that actors, who are also in the rehearsal room, would have influence on the piece, even in small ways. Actress and singer introduced the famous and notoriously difficult coloratura aria “Glitter and Be Gay” in Leonard Bernstein’s Broadway operetta .32 Barbara Cook has told the story numerous times, where in rehearsal she suggested a musical phrase go down in pitch with a portamento rather than a sustained high note to better match the lyric “Here I droop my wings.”33 Bernstein agreed immediately.34 Cook tells the story more to show Bernstein’s skill as a collaborator and her own youthful gall, rather than wishing to assume any credit.35

While muses or subjects would not be considered “authors” under U.S. copyright law, and a mere suggestion like Barbara Cook’s can be set aside as a de minimis contribution, actors contributions can be more substantial.

28 SONDHEIM, supra note 19, at 278 (“I had tailored songs before to the talents and limitation of particular performers (“Everything’s Coming Up Roses” for Merman, “The Ladies Who Lunch” For Stritch) so writing one for Glynis was not difficult. Her chief limitation was an inability to sustain a note.”) 29 Id. 30 Milzoff, supra note 26 (“Paul: I mean, we wrote it for [Ben Platt] . . . for his voice.; Pasek: We’d been working with him for two years; we definitely had him in mind.; Paul: …. You can do the test in your head of, can I hear Ben Platt’s voice? Or I don’t buy it.”). 31 Id. 32 Glen Hoffman, Barbara Cook on Candide: Rehearsing Glitter and Be Gay, VEVO (Sony Music Entm’t 2015) https://www.vevo.com/watch/barbara-cook/barbara-cook-on-candide-rehearsing-glitter-and-be- gay/USSM21501124. 33 Id. 34 Id. 35 See Id. 5

For example, actors are sometimes required by an author to create material. Improv and ad libs are tools of actors and singers. With music especially there are times where ad libs of musical runs are called for. 36 For example ’s R&B and pop score for is full of “ad lib” notations where the singers are expected to create appropriate runs:37

Nevertheless, due to the popularity of the original cast album the first performer’s ad-lib gets crystalized as part of the musical work. In such situations actors in subsequent productions will perform the same ad-lib because it is seen as part of the original. All the music, however, is attributed to Henry Krieger.

Outside of music for the theater, it is easy to see that an actors’ contribution to staging could be a standard part of future performances.38 A director may ask all the actors to spread out on the stage and everyone’s chosen position is now apart of the show. Or a choreographer asks the ensemble to strike a pose at the end of a roaring number and everyone’s choice position is now apart of the show. Often blocking and staging is written down by stage managers or assistant directors so it can be recreated. Today, with Broadway’s long running shows and the international business of commercial musical theater, the recreation of original staging can

36 “Ad Libs” are often referred to as “riffs” by musical theater professionals. This style of singing was common in African American gospel and R&B. It was popularized by , Mariah Carey and later by the television show . 37 E.g. HENRY KRIEGER & , Opening Act II, DREAMGIRLS – PIANO/CONDUCTOR SCORE, 233 (Tams- Witmark 1981). 38 This issues of whether directors are entitled to copyrights or whether stage directions are copyrightable are beyond the scope of this note. For more information, see Talia Yellin, New Directions for Copyright: The Property Right of Stage Directors, 24 Colum.-VLA J.L. & Arts 317 (2001); David Leichtman, Most Unhappy Collaborators: An Argument Against the Recognition of Property Ownership in Stage Direction, 20 Colum.-VLA J.L. & Arts 683 (1996). 6 spread all over the world and last for decades. Although contributions to blocking or dance may be the most concrete examples because documented in order to be recreated, actors’ contributions can appear in many forms. An actor’s facial expression or inflection in a certain line or reaction can just as easily be seen as a contribution to a work that could be continued on with additional productions.

II. and the Birth of the Broadway Workshop: “Who Tells Your Story"39

One of the most collaborative (and infamous) processes of Broadway lore was the creation of

A Chorus Line. Like Hamilton, it started at , giving it a downtown edgy creditability. Also, like Hamilton, A Chorus Line’s contract left its actors feeling as if they had been cheated out of some rights to the piece. “A Chorus Line remains the poster child for collaborative authorship problems.”40

Michael Bennett, an up and coming New York choreographer and director in the 1970s wanted to create a musical about dancers.41 When a few acquaintances wanted to start a dance ensemble, Bennett took it upon himself to lead discussions at their first meetings and to record the discussions.42 Bennett steered the conversion to personal topics and said “I really want to talk about us. Now I don’t know whether anything will come of us, or whether there is anything interesting…. I think maybe there is a show in there somewhere.”43 These conversations would

39 LIN MANUEL MIRANDA, Who Lives, Who Dies, Who Tells Your Story, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 40 Sarah Howes, Creative Equity: A Practical Approach to the Actor’s Copyright, 42 WM. MITCHELL L. REV. 70, 108 (2016). 41 EVERY LITTLE STEP (Endgame Entertainment 2008). 42 VIAGAS, ET AL, supra note 17 at 20. 43 MICHAEL RIEDEL, RAZZLE DAZZLE THE BATTLE FOR BROADWAY 147 (2015). 7 become the inspiration for A Chorus Line. Some dialogue was lifted word for word from the original taped conversations.44

Having already started work on the piece, including plans to hold casting sessions where actors would see their own words on the sides,45 Bennett told his lawyer, and later A

Chorus Line producer, John Breglio, about his plan for the show.46 Breglio was worried that there would be “twenty authors and twenty lawsuits.”47 Thus, Bennett had all those involved in the tapings to sign one-page “releases”48 in exchange for one dollar, and all the actors did.49 In

1975, after two workshops and an off-Broadway run, A Chorus Line moved to Broadway.50 Not only was it a critical and financial hit, much like Hamilton, it was a cultural phenomenon, the likes of which only comes out of the theater every few decades. “Bennett asked his lawyers to draw up a new arrangement that divided the 37 dancers and actors involved with “A Chorus

Line” into three groups.”51 The first, Group A, were part of the original tape sessions and/or were part of both workshops.52 Group B were only there for the tape sessions.53 “Group C included those in the show who had not been with it from the early stages.”54

44 EVERY LITTLE STEP, supra note 41 (showing where the transcript from the taped meeting matched lines from A Chorus Line); VIAGAS, ET AL, supra note 17 at 33 (“Many of the first things said in the tape session made their way into the final text of A Chorus Line.”). 45 , WHAT THEY DID FOR LOVE: THE UNTOLD STORY BEHIND THE MAKING OF A CHORUS LINE 48 (1989). 46 RIEDEL, supra note 43, at 148. 47 Id. 48 In numerous sources, the Chorus Line agreements are often called “releases” or “waivers.” Although a copy of the exact language used in this document is not available, from what is know legally the document appears to be more in line with a “assignment” where whatever property right the actors had in their stories and words said on tape were transferred to Michael Bennett. Because the majority of the sources found refer to the agreements as "releases,” thus paper does so as well. 49 RIEDEL, supra note 43, at 149. 50 Campbell Robertson, ‘Chorus Line’ Returns, as Do Regrets Over Stories Signed Away, N.Y. TIMES, Oct. 1, 2006. 51 Id. 52 Id. 53 Id. 54 Id. 8

This new agreement split among them a half-percent of the production’s weekly box office gross revenues, as well as a similar portion of the income from subsidiary rights; it gave the 19 dancers in the A Group double the shares of everyone else. In all, Mr. Bennett gave the 37 dancers roughly a tenth of his own royalties from the original production and around a third of the rights income he was entitled to as the show’s conceiver, director and choreographer. He also received a share of profits and rights income as a producer.55

Some of the Chorus Line actors cite the arrangement as a mere conciliation for their actual contribution as “authors.”56 As actor Wayne Ciltento put it, “We were the authors of the show, and we should have been paid accordingly.”57 The difference in share would have been huge.

Typically, authors share around forty-percent of a royalty pool.58 Many felt that that they had no other option than to sign the releases and that the power dynamic of continuing to work for

Bennett led to an unfair agreement akin to an adhesion contract by giving up their life stories for a dollar.59

This agreement also represented a milestone in Broadway actors’ rights and payment. “This kind of agreement was new because the extensive workshop process was new[.]”60 It is not that

“workshopping” a theater piece was new.61 At least one of the actors involved in A Chorus

Line’s development had been in workshops in California.62 Nevertheless, the workshop was a new idea to the commercial Broadway musical. “The Broadway workshop” was a new developmental concept compared to the single alternative: the “out-of-town tryout system.”63

The out-of-town try out had dominated Broadway productions’ development for almost the past

55 Id. 56 See Id. 57 Id. 58 Online Study Guide: Royalty Pools, Association of Theatrical Press Agents & Managers, 1 (2004) http://atpamnmam.tripod.com/Royalty_Pools.PDF [Hereinafter “Royalty Pools”]. 59 See Id; please note that the legal is issue of “story rights” is beyond the scope of this paper and is not developed further. 60 Robertson, supra note 50. 61 See VIAGAS, ET AL, supra note 17 at 89. 62 Id. 63 Id. at 88. 9 century. Authors wrote material and that material was performed outside of New York, often in cities such as Boston or . That material and the production was re-written and tweaked until it was (hopefully) ready for its Broadway debut.64

A Chorus Line’s two developmental workshops were extremely collaborative.65 In early stages, composer Marvin Hamlish would play a musical theme he was working on and the dancers would improvise movement.66 A method for both composer to find the “sound” of the piece and the choreographer to find the “dance style” of the piece from with what the dancers came up.67 The process was very collaborative, and Bennett really used the dancer/actors to create the piece. Ultimately, due to the collaborative process, the actor/dancers’ contributions are reflected, at least in part, by Bennett’s agreement to give them some of his royalties and rights.

Moreover, the actors in “Group C” who did not participate in the original taping nor the workshops received a portion of the royalties and rights Bennett gave.68 This shows that in the eyes of Bennett they too had made a contribution to the success of the show by “creating a role” on Broadway. The Broadway industry uses the term “creating a role” to mean the first person to play a role. Even the jargon itself shows that that the industry at large sees some of an actor’s creative contribution in being the first to perform a role. Here Bennett shows the importance of being first on Broadway as an important contribution to the creation of A Chorus Line by giving some of his own royalties and rights to “Group C.”

After A Chorus Line brought the workshop process to Broadway, “a similar, but less generous agreement that was hammered out for Mr. Bennett’s next musical, ‘,’ has

64 Id. 65 Id. at 104-93. 66 Id. 105. 67 Id. at 105, 108. 68 Supra, note 54. 10 become standard on Broadway.”69 A Chorus Line’s creation was a particularly extreme version of collaboration and Bennett’s bestowment of his rights and royalties do account for this collaboration, even though many actors still feel the bestowment skirted some legitimate story rights issues. As A Chorus Line producer Breglio puts it: “Up to this day, the dancers continue to receive a share of Michael’s unprecedented generosity from A Chorus Line – the most money ever paid to Actors’ Equity members for participating in a workshop.”70

III. Actors as Authors Under Copyright Law: “Helpless!"71

To create a copyrightable work (1) an author must create (2) an original work (3) that is fixed in a tangible medium (4) and capable of being perceived, reproduced, or communicated.72

Additionally, copyright only applies to the expression of ideas and not the ideas themselves.73 At one time the actors’ copyrights debate centered around the fixation element,74 but now the debate has shifted to the authorship and originality elements. Three hypothetical scenarios exist in which an actor could obtain a copyright: (1) the actor as a copyright in his or her own performance; (2) the actor is a joint author of the work along with other authors; and (3) the actor is also an author of the work independent from his or her performance of the work. The third scenario is not relevant to this discussion because the copyright is unrelated to the person’s work as an actor. Like with Hamilton, Lin Manuel Miranda’s copyrightable work as composer,

69 Robertson, supra note 50. 70 JOHN BREGLIO, I WANNA BE A PRODUCER: HOW TO MAKE A KILLING ON BROADWAY… OR GET KILLED 105 (2016). 71 LIN MANUEL MIRANDA, Helpless, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 72 17 U.S. Code § 102(a). 73 17 U.S. Code § 102(b). 74 Howes, supra note 40 at 91 (“Fixation is old news with the advent of recording equipment.”). 11 lyricist, and book writer is separate from his performance of the title character. The two previous scenarios are discussed below.

A. Garcia v. Google & an Actor’s Copyright in His or Her Performance: “the world turned upside down”75

Although a recent case coming out of the Ninth Circuit initially gave some hope an actor’s copyright in his or her performance, that glimmer of hope was quickly shot down.

In Garcia v. Google, Inc.,76 non-union actress Cindy Lee Garcia was hired by producer Mark

Basseley Youssef for a low-budget amateur film with a working title of “Desert Warrior.”77

Garcia performed four pages of the script she was given and was paid.78 To Garcia’s dismay, she found that Youssef had partially dubbed her performance and used it in an anti-Islamic film titled

"Innocence of Muslims" which was uploaded to YouTube.79 The protests of the film “generated worldwide news coverage,” and Garcia received death threats.80 Garcia filed takedown notices under the Digital Millennium Copyright Act.81 When Google refused to act, “Garcia applied for a temporary restraining order seeking removal of the film from YouTube, claiming that the posting of the video infringed her copyright in her performance.”82 Thus, Garcia argued she had a copyright in her five-second performance that was separate and distinct from the work as a whole.83

75 LIN MANUEL MIRANDA, Yorktown (The World Turned Upside Down), on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 76 Garcia v. Google, Inc., 766 F.3d 929 (9th Cir. 2014). 77 Id. at 932. 78 Id. 79 Id. 80 Id. 81 See generally 17 U.S.C. § 512. 82 Garcia, 766 F.3d at 732. 83 See Id. 12

“When the district court rejected Garcia’s request in part because she “was unlikely to succeed on the merits[,] because she'd granted Youssef an implied license to use her performance in the film,” Garcia appealed.84

In 2014, Chief Judge Kozinski, writing for the Ninth Circuit, created a stir within the intellectual property legal community by writing “[a]n actor's performance, when fixed, is copyrightable if it evinces ‘some minimal degree of creativity. . . 'no matter how crude, humble or obvious' it might be.’”85 Kozinski elaborated:

Of course, by hiring Garcia, giving her the script and turning a camera on her, Youssef implicitly granted her a license to perform his screenplay. This doesn't mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in "preexisting material" such as the words or actions spelled out in the underlying script. Garcia may assert a copyright interest only in the portion of "Innocence of Muslims" that represents her individual creativity, but even if her contribution is relatively minor, it isn't de minimis. We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail based on the record and arguments before us.86

In 2015, a Ninth Circuit en banc panel reversed Kozinski’s holdings and said actors have no copyright in their performance and thus no copyright interest in the films they make.87 The court noted that “[m]andatory preliminary injunctions, similar to the one issued today, are ‘particularly disfavored.’”88 Therefore, a “higher degree of scrutiny” was used by the court.89 “This higher degree of scrutiny requires courts to be ‘extremely cautious’ and ‘deny such relief unless the

84 Id. at 732-33. 85 Id. at 934 (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, (1991) (quoting 1 Nimmer on Copyright § 1.08[C][1])). 86 Id. at 135 (citations removed). 87 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc). 88 Id. at 940 (quoting Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994)). 89 Id. at 940 (quoting Stanley, 13 F.3d at 1320). 13 facts and law clearly favor the moving party.”90 “As a result, the majority may only reverse if it were illogical or implausible for the district court to conclude that the law and facts did not clearly favor Garcia.”91 The court’s adherence to this “higher degree of scrutiny” guided their deference to the lower court’s decision. Moreover, the Ninth Circuit’s reasoned that a movie is one work under the copyright act and that an actor’s performance cannot be separated out.92 It is of note that Garcia never argued she was a joint author in the work and that “Garcia argue[d] that she never intended her performance to be part of a joint work” and neither decision determined otherwise.93

Additionally, the panel pointed to a “flood gates” argument, where a movie would become a

“copyright of thousands” with so many parties giving contributions.94 The panel noted that even if Garcia had met the originality element, she was barred from copyright because the fixation was done by Youssef and his crew.95

Kozinski was not silent in his discontent which he put into a scathing dissent: “[T]he majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit.

In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them.”96

The Second Circuit in 16 Case Duse, LLC v. Merkin,97 the court held that Merkin, a director, did not have a separate copyright for his contributions in a film because a film is one work.”98

90 Id. at 940 (quoting Stanley, 13 F.3d at 1319-20) (internal quotation marks omitted in original and emphasis added in original). 91 Id. at 940-41 (citing Stanley, 13 F.3d at 1320). 92 Id. at 741. 93 Id. at 933. 94 Id. at 732-33. 95 Id. at 733-34. 96 Id. at 479 (Kozinski, J., dissenting). 97 16 Case Duse, LLC v. Merkin, 791 F.3d 247 (2nd Cir. 2015). 98 Id. at 259. 14

The court pointed to the Garcia en banc panel decision’s reasoning to determine the director did not have a separate copyright.99 The court stated “[o]ur conclusion in the present case does not suggest that motion picture directors such as Merkin may never achieve copyright protection for the creative efforts . . . [b]ut a director’s contribution to an integrated ‘work of authorship’ such as film is not itself a ‘work of authorship’ subject to its own copyright protection.”100 The court went on to agree with the Garcia en banc panels’ policy argument “that the creation of thousand of standalone copyrights in a given work was likely not intended [by Congress].”101

The Second Circuit in TCA TV Corp. v. McCollum,102 the court determined that Abbott and

Costello’s iconic Who’s on First? comedy routine did not “merge” into a film’s “unitary whole” for copyright purposes.103 The court disguised Garcia by stating that the facts of TCA were not

“analogous” because while Garcia’s performance “so integrated into the film, Who’s on First? was a free standing routine that existed years before and years after separate from the film.104

Thus, the worry that “‘[t]reating every acting performance as an independent work’ would be a

‘logistical and financial nightmare’” did not exist here.105

In general, the case does not bode well for a stage actor copyright. Although, Garcia en banc panel’s afterthought of a fixation argument seems to be on shaky ground logically,106 the panel’s other reasoning may be hard to argue with. If according to Garcia (en banc) and Case Duse an actor’s or director’s contribution cannot be separated from a film in a typical scenario, then an actor’s performance is unlikely to be seen as separate from stage musical. Case Duse, however,

99 Id. at 258-59. 100 Id. 101 Id. at 259. 102 TCA TV Corp. v. McCollum, 839 F.39 168 (2nd Cir. 2016). 103 Id. at 192. 104 Id. at 191. 105 Id. at 191 (quoting Garcia, 786 F.3d at 743.) 106 Howes, supra note 40 at 83-84 (finding illogical conclusions from Garcia’s fixation stance). 15 left room for some leeway in this doctrine by not declaring a hard rule. TCA took up this leeway and showed that a single contribution can exist separate from a whole. TCA shows that just because a contribution exists within a whole it can still be separate and discrete in terms of copyright. Yet, TCA appears to be an exception to rule and ultimately may be more less useful to this discussion because its facts are more analogous to “the third scenario” listed above in this paper for an actor obtain a copyright: the actor is an author separate from their performance.

Additionally, the Garcia en banc panel grounded their decision in the “higher degree of scrutiny” required by procedure policy. It may be possible for Kozinski’s views to see the light of day under a lesser required scrutiny. Furthermore, it could be argued that Case Duse erred by relying on Garcia’s (en banc) reasoning because the reasoning was filtered through such high scrutiny. Moreover, by looking at Case Duse and TCA together it appears that the Second

Circuit, the home of Broadway, is not tied to hard rules and is willing to look at the factual situation to guide their reasoning to create some sense of general equity or fairness in the copyright doctrine.

Even with a lesser degree of scrutiny in an actor’s favor, a general policy argument of not wanting to divide up individual copyrights to a larger work to create more certainty in the copyright law may a larger barrier for the actor copyright.

B. An Actor’s Copyright as a Joint Author: “you don’t have the votes”107

The Copyright Act defines joint work as ““a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary

107 LIN MANUEL MIRANDA, Satisfied, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 16 whole.”108 Joint authors are tenants in common and each author can grant nonexclusive license without permission of other co-authors.109 Contributions, however, do not need to be equal.110

“Even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefit.”111

1. Tests for Joint Authorship

In evaluating the contributions of authors claiming joint authorship status, two major tests emerged from academia: (1) the “de minimis test;” and (2) the “copyrightability test.”112

First, Professor Melville Nimmer proposed a de minimis test focused mostly on the intent of the collaborators.113 Nimmer “took the position that all that should be required to achieve joint author status is more than a de minimis contribution by each author. ‘De minimis’ requires that

‘more than a word or line must be added by one who claims to be a joint author.’114 Under this test, one collaborator could contribute only copyrightable ideas and still be a joint author so long as the final work was copyrightable.”115 The intent for both parties to collaborate is what ultimately matters.

Second, Professor Paul Goldstein’s copyrightability test or “copyrightable subject matter test,” requires (1) the collaborators intended to be joint authors; and (2) each collaborator’s contribution to be “original expression that could stand on its own as the subject matter of

108 17 U.S.C. § 101. 109 Childress v. Taylor, 945 F.2d 500, 505 (2d Cir. 1991); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994); Nimmer § 6.02, at 6-7 to 6-8. 110 Trinity, 13 F.3d at 1068. 111 Id. 112 Id. at 1069; Michael Landau, Joint Works Under Copyright Law: Judicial Legislation Through Statutory Misinterpretation, 54 IDEA 157, 168-171 (2014) (comparing tests the two tests). 113 Trinity, 13 F.3d at 1070. 114 Id. (quoting Nimmer § 6.07, at 6-21). 115 Id. 17 copyright.”116 Goldstein points to the use of the word “author” in the definition of joint work as a reference to “work of authorship” or copyrightable material as support for his theory.117

“Goldstein justifies this position by arguing that any material that does not meet

‘the Copyright Act's copyrightability standard falls within the public domain, which any author is entitled to use without having to share proceeds from the work's exploitation.’118

2. Actor Unfriendly Case Law

The debate between the two tests came to the courts in the early 1990s but fizzled fast as the copyrightability test was adopted by the Second, Seventh, Ninth and Eleventh Circuit119

Copyrightability has become the majority view in the courts that have dealt with this subject.

Some of these foundational cases for joint authorship deal with actors not meeting the standards of the copyrightability test. Additionally, from the case law it is unclear if an actor could meet the standards, outside of a traditional author role.

The Second Circuit in Childress v. Taylor120 held that actress Clarice Taylor was not a joint author to a play about comedienne Jackie "Moms" Mabley where she had collaborated with playwright Alice Taylor.121 Taylor had the initial idea for the play, was to play “Moms” Mabley, gave ideas for scenes that were part of the final play and contributed major historical research.122

Although the court noted that Taylor’s contributions were not eligible for copyright, in applying the copyrightability test, “the court decided the case solely on the ‘intent’ issue.”123 There was no

116 PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLES, LAW, AND PRACTICE § 4.2.1.2, at 379 (1989); see Trinity, 13 F.3d at 1070 (discussing “the copyrightability test”). 117 Landau, supra note 112 at 169. 118 Id. at 169-170 (citing GOLDSTEIN, supra note 116 at at 4:17). 119 See Childress, 945 F.2d at 507; Trinity, 13 F.3d at 1071; Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990). 120 Childress v. Taylor, 945 F.2d 500 (2nd Cir. 1991). 121 Id. 508. 122 Id. at 502. 123 Landau, supra note 112 at 178 (citing Childress, 945 F.2d at 508). 18 evidence that Childress, an experienced playwright, had ever intended the actors to be joint authors.124

Similarly, the Seventh Circuit in Erickson v. Trinity Theatre125 held that actors were not joint authors of three plays they had collaborated on with playwright Karen Erickson under the

Childress copyrightability test.126 Although the court easily determined that there was no intent to be joint authors by the parties for two of the plays where Erickson held sole control of the works as playwright, the third play, Time Machine, was “more problematic.”127 For Time

Machine there was testimony from actress Paddy Lynn that at least two scenes were developed through a collaboration process.128 Moreover, the theater had evidence of Erickson’s intent to be co-author with Lynn.129 “Initially, Ms. Erickson attributed the script to both herself and to Ms.

Lynn. Ms. Lynn also received royalties for performances of the play.”130 Although Erickson denied she intended Lynn to be her co-author, Erickson “conceded that Ms. Lynn was credited on publicity materials as an author but denied that she approved such credit. The later change in attribution, Ms. Erickson claims, merely corrected the initial error.”131

Nonetheless, in discussing the copyrightability prong, the court noted that while the development of the plays had included improvisation and suggestions from the actors, the actors could not prove that any of their “contributions to Ms. Erickson's [plays] could have been independently copyrighted.”132

124 Childress, 945 F.2d at 508. 125 Erickson v. Trinity Theatre, 13 F.3d 1061 (7th Cir. 1994). 126 Id. at 1072-73. 127 Id. 1071-72. 128 Id. at 1072. 129 Id. 130 Id. at 1064. 131 Id. 132 Id. at 1072. 19

On the other hand, in Systems XIX, Inc. v. Parker,133 the district court found that the plaintiff, a recording studio and music producer, “demonstrated the existence of triable issues of fact with respect to the intention of the parties” to create a joint work in a sound recording for a judicial determination of the plaintiff’s rights under the Copy Right Act.134 The defendants, a rapper and his record label, argued that there was no direct communication with the plaintiff in the creation of the live concert recording, and thus no intent could exist to create a joint work.135 The plaintiffs had pointed to evidence showing that the defendants “understood the inherently collaborative nature of producing live performance.”136 Agreeing with the plaintiffs, the court reasoned that “[i]t makes no difference whether the authors work in concert, or even whether they know each other; “it is enough that they mean their contributions to be complementary in the sense that they are embodied in a single work to be performed as such.”137 The court rooted its more liberal view of intent for joint works in the idea that “sound recordings by their nature are usually joint works.”138 The court pointed to support from the Copyright Office and the

Copyright Act’s legislative history.139 Additionally, the court stated that “the subjective standard under Childress” did not apply.140 The court distinguished the “playwright/research assistant relationship in Childress” from the “producer /performer relationship” at hand in Systems because the “relationship here was under the specific contemplation of Congress as as joint authors of a sound recording under the Act.”141

133 Systems XIX, Inc. v. Parker, 30 F. Supp. 2d 1225 (N.D. Cal. 1998). 134 Id. at 1229. 135 Id. at 1228. 136 Id. 137 Id. at 1229 (quoting B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 267 (2nd Cir. 1946). 138 Id. at 1228. 139 Id. 140 Id. 141 Id. 20

Although Systems does show an opening in the joint work legal framework for a less strict stance on the intent element, it is rooted Congress’ recognition of sound recordings as special.

For Broadway actors to utilize this line of reasoning they would not only need to show that the development of a musical is “inherently collaborative” and accepted as such in that industry, but also that Congress recognized that relationship as special. Although there may be some arguments through analogies of relationships, the Congressional recognition appears to be a hard hurdle to cross.

Ultimately, the copyrightability standard appears to not be actor friendly. For the Broadway actors, the Second Circuit’s Childress is law over joint authorship and there is no reason to think that this cornerstone case is moving any time soon. Furthermore, even with Broadway musicals’ collaborative processes, the strict nature of titles and duties for Broadway staff may also be a barrier for Broadway actor copyrights.

In Thomson v. Larson, a Second Circuit case following Childress, the court held that an independent dramaturg142 who helped mold his musical for Broadway was not a joint author of a “new” version of the musical.143 Although Larson had died before the full success of Rent, the court determined that Larson never intended to be co-author with Lynn M.

Thomson partially because as “dramaturg” Thomson’s control was inherently given to Larson, the writer.144 Although Thomson argued that she should have the right to separate out her copyrightable material from the work or be able to use that specific material, the court dodged

142 The Role of the Dramaturg, LITERARY MANAGERS AND DIRECTORS OF THE AMERICAS, www.lmda.org/dramaturgy (last visited Nov. 27, 2017)(“Dramaturgs and literary managers serve the field as experts on our dramatic past and as advocates for writers of today and the important work of the future.”) 143 147 F.3d 195, 206-07 (2nd Cir. 1998). 144 Id. at 202-05. 21 these matters on technicality: “Because these issues were not raised [at the district court level] and therefore are not properly before us, we express no opinion on them.”145

In looking at this case in terms of Broadway actors, if a dramaturg whose role is more closely related to the traditional process of writing can be so easily excluded from joint copyright, there appears to be little hope for actors whose traditional role is farther away. The Childress’ case law uses billing and titles as evidence of intent. For actors this sort of evidence would likely put them low on the hierarchy of control, unless they can adequately argue that writers intended the actors to be co-authors.

C. Actor’s Copyrights? “”146

Ultimately, copyright law feels stacked against the Broadway actor copyright. Now it is not to say that creative lawyers in the future will not create new arguments in favor of actors’ copyrights. Proponents of actors’ copyrights feel that Garcia and Childress are simply bad law.147 If the Ninth Circuit’s initial Garcia holding seemingly come out of nowhere to shock the legal community, there’s no reason to say that it will not happen again. On the other hand, the feeling that the law is against an actors’ copyright might be justified because of policy concerns.

Additionally, imbedded in actor copyrights are innate problems.

As stated above, a Broadway actors’ copyright could lead to potentially hundreds of copyrights in one musical, especially if the musical had more than one workshop or changed casts. As a joint author, every applicable actor would be able to license to the whole work. This

145 Id. at 206. 146 LIN MANUEL MIRANDA, Satisfied, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 147 See Howes, supra note 40 at 80-85 (arguing that in Garcia “Bad Facts Managed to Make Unexpected Worse Law”); Landau, supra note 112 at 211-22 (arguing that the that the Childress line of cases misconstrue the statute); Faye Buckalew, Joint Authorship in the Second Circuit: A Critique of the Law in the Second Circuit Following Childress v. Taylor and as Exemplified in Thomson v. Larson, 64 BROOKLYN L. REV. 545, (1998). 22 may actually make directors and producers want to limit cast changes in developmental stages to reduce future rights holders. Ultimately, this would seem to be a hindrance to creative expression and go against the Constitution’s stated purpose of the Copyright Act: “To promote the Progress of Science and useful Arts.” 148 A producer circumvented this problem by the having the actors sign a work-made-for-hire agreement, coupled with an assignment of any copyright interest. By solving this copyright issue, it would create an additional point leverage for the actors or their union to negotiate for higher pay for the assignment.

Moreover, even assuming intent, not all actor contributions will rise to the needed copyright threshold allowed for joint authorship under the copyrightability test. This could open the doors for additional lawsuits to determine legal authorship and create a need for case-by-case judicial input. Additionally, for the consciousness producer who wants to do the correct thing under the law and for his investors, the uncertainty makes it hard for the producer to plan.

It is not to say that actors have no recourse to be compensated for their contributions to a work. This can be done through contract law.

IV. Royalty Pools for Actors: “Satisfied"149

“Section 201(b) of the [Copyright] Act allows any person to contract with another to create a work and to endow the employer with authorship status under the Act. A contributor of non- copyrightable ideas may also protect her rights to compensation under the Act by contract.”150

Goldstein’s copyrightability test can be viewed not as excluding contributors from rights but

148 U.S. Const. Art. I. § 8, cl. 8. 149 LIN MANUEL MIRANDA, Say No To This, on HAMILTON AN AMERICAN MUSICAL ORIGINAL BROADWAY CAST RECORDING (Atlantic Records 2015). 150 Trinity, 13 F.3d at 1071 (internal citations removed). 23 rather pushing them to contract law by incentivizing contributors to get what they want.151

“Thus, anyone who contributes to the creation of a work, either as patron, employer, or contributor of ideas, has the opportunity to share in the profits produced by the work through an appropriate contractual arrangement.”152

On Broadway, actors can be compensated for their contributions to the development of a musical through sharing in royalty pools, much like in the A Chorus Line agreement discussed in

Part I. Unlike A Chorus Line and Hamilton, these pools are created before the production goes to

Broadway no matter if it is successful or not.

Additionally, royalty pools are conducive to the Broadway musical because usually development happens under one producer or producing partnership. They players typically remain the same. This is opposed to Broadway plays which usually have a less direct gestation period often relying on multiple regional theaters for development. It is not to say that Broadway musicals never come out of regional theaters, Hamilton did, but they tend to be large established theaters like The Public and often have commercial producers, like Jeffrey Sellers, contributing

“supplemental” income at the developmental stage. Moreover, the royalty pool is not conducive to films or television because the developmental process is so different and the sheer number of participants is too many. Films and television use the residual system, which while similar to royalty pools, combines larger groups to divide certain contracted percentages, which are usually set by the union.153

151 See Id. 152 Id. 153 A further discussion of residuals for film and television is out of the scope of this paper. 24

A. The Workings of Royalty Pools: “The art of the trade. How the sausage gets made.”154

Prior to 1980, “creatives” on Broadway were paid a percentage of the Gross Weekly Box

Office Receipts which often left little for investors.155 “Theatrical investors began to question situations in which royalty participants could make a significant amount of money in royalties before the show had returned its investment.”156

Thus, the modern Broadway royalty pool was created.157 Here royalty participants together would split the Weekly Operating Profits with the investors158 (see Figure 1).

Figure 1.159 (note: actors are not included in this pool example)

“The original intent of the royalty pool was to create a scenario where royalty participants

‘delay’ their compensation by agreeing to share in weekly profits with investors through a payment system in which royalties increase as gross receipts go up.”160 When the show is losing money, this prevents the producer from having to pay royalties.161

154 MIRANDA, supra note 16. 155 BREGLIO, supra note 70 at 85. 156 Royalty Pools, supra note 58. 157 See Id. 158 Id. 159 Id., at 2. 160 Id. at 4 161 Id. 25

Broadway actors usually become royalty participants through being cast in a developmental workshop. Actors Equity, the stage actors’ union, includes a royalty provision for its standard workshop agreement.162 The provision provides for profit shares of the box office as well as future rights from future productions that of which the actor most likely will not part of the cast:163

In addition to the salary the Actors earn during the Workshop sessions, they also earn a share in the future success of the show. For their contributions to the development of the show, the Actors share in contingent compensation that takes two forms. First, the Actors share in the weekly box office gross when the show is produced under contract; that is, the Actors as a group shares a percentage (usually 1%) of the gross box office receipts. . . . [Second,] [a]ctors also share in any subsidiary rights income which is generated by the play. For example, subsidiary rights income can come from royalties from foreign productions, stock and amateur rights, or from the sale of motion picture rights. The Actors' share of subsidiary rights is usually 1.5% of net receipts.164

Although Actors Equity includes this provision, it is not always allotted for actors’ developmental contributions. First, as a contract provision these terms can be negotiated and changed. Second, Actors Equity has another standard contract for “developmental labs” which has higher pay for actors but does not include royalty provision.165 The developmental lab has become more popular and “producers have largely opted to pay actors who help develop shows more up front, in exchange for not granting them a share of profits if — as happens relatively rarely — the show becomes profitable.”166 Conversely, for those shows that do become profitable, a small share can change an actor’s life. “The best-known example, often cited by actors in the current debate, is ‘The Book of Mormon.’ The actors involved in the initial

162 Workshop Agreement Overview, supra note 10. 163 See Id. 164 Id. 165 Kuney, supra note 12. 166 Paulson, supra note 7. 26 workshops for that show, which opened on Broadway in 2011, still get regular checks, in some cases for several thousand dollars a month, to reflect their contributions to its success.”167

B. Royalty Pools for Actors Should Be More Widely Adopted: “Wait For It”

Royalty provisions for actors can be interpreted as a payment for creative contributions, especially those that may not fit the copyright mold. Those who share in a royalty pool consist of, for the most part, creative personnel and investors. Although it could be argued that actors are investing their time and should be compensated for what that time brings, actors are compensated for their time via standard pay. It seems clearer that actors fit into the creative side and that their contributions are creative, too.

Additionally, royalty pools live separate from copyrights. There are no preemption issues because typically nothing is being taken away from the copyright holders. Unlike the agreement in A Chorus Line where the actors’ royalties came from the director, typically when actors are included in pools the producer allocates a small percentage of their producer’s share of the pool to actors.168

With Broadway becoming international where productions spread over the country and world like franchises, actors should be compensated in their part of that success. Some would argue that the developmental lab contract, spoken of above, does so by paying actors upfront but with a hit, the revenue can go on for decades and is exponentially more than that allotted by the developmental lab contracts.

Currently, the developmental lab contract seems simple to be a way around not dealing with royalty provisions for actors. In wake of Hamilton’s post-Broadway royalty provision, Disney

167 Id. 168 See Paulson, supra note 7. 27 has taken some flack from actors because it developed its upcoming Frozen stage musical without any profit-sharing.169 For Disney this is business as usual because it is the same process it has had for its last four stage musicals.

One of two actions should be taken. First, Equity should fight to remove the developmental lab from its standard contracts and fold it into its workshop contract. At least, this would force the parties to negotiate the royalty provision out. Second, Disney or other producers need to make a real case for the difference of the developmental lab and the workshop. It could be argued that with a piece like Disney’s upcoming Broadway stage adaptation of its animated film

Frozen, since it already exists as a movie musical, the actors’ contribution is different than with other works due to the nature of the material and the process. This author is not convinced that the process would be actually that different but that debate has not even been initiated.

Part of this is because of the general low bargaining power of actors. There is an endless line of out-of-work actors who want to be on Broadway. Additionally, although all Broadway actors must be union, the Actors Equity union has a reputation for being weak in terms of negotiating outside of their standard contract provisions.

On the other hand, Broadway actors do have some realities in their favor to create some change. First, a history of royalty pools and a general respect for Broadway performers as creative beings exists in the industry. Second, it behooves producers to adopt royalty provisions.

It appeases the acting community and could stop actors obtaining aggressive lawyers in the future to continue to fight for actor copyrights.

Lastly, although its reach is growing, Broadway is still small industry: literally and figuratively. This sort of adopted change in a small industry seems much more possible as

169 Id. 28 opposed to a larger industry such as the film industry. Its heart is only a few blocks. Its major players are relatively few. With Hamilton, we have already seen a major Broadway producer give in to actors’ reasonable demands when they did not give away their shot.

CONCLUSION

Although copyrights for Broadway actors seem unlikely to gain any traction in the current legal regime, royalty pools give an alternative means of compensation for the creative contribution Broadway actors provide to develop new work. With hit stage musicals generating income for decades, a wider inclusion of royalty pools for developmental processes should be included in actors’ contracts to properly compensate their creative contribution over time.

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