The Cost of Free Speech

As expressive artists, dramatists need to be able to com­ment on a wide range of sensitive subjects. When they have met resis­tance to their work in the U.S., it has mostly been from high schools, col­leges, community theatres, and non­ profits, and primarily regarding the following topics:

• Religious issues (Sister Mary Igna­tius, Rachel Corrie,Behzti)
• Homosexuality (Angels in Ameri­ca, Rent, Laramie Project, Corpus Christi)
• Racial issues (Ragtime)
• Political issues (Assassins, Voices In Conflict)
• State Statutes
• Anti-Smoking regulations (Colorado, Chicago)

Copyright law func­tions as an exception to the First Amendment. It endows authors with a limited monopoly over their expres­sion in order to create a financial in­centive mechanism that encourages the "progress of the useful arts and sciences" (as required by the "prog­ress clause" of our Constitution). The point of which is to create, ultimately, a rich public domain for the benefit of all. Therefore, the administration of copyright law has a profound impact on free speech. Since dramatists are both owners of their copyrights and, often, adaptors of the expressive work of others, they have more than a pass­ing interest in the proper administra­tion of these laws.

Limitations on speech - As owners of their copyrights, dramatists necessarily draw distinctions between speech that is free and speech that is not. Otherwise, they could not derive appropriate benefits from their work. In fact, much of the Guild's efforts are invested in helping members (through ad­vocacy and education) to protect their copyrights from:

• Infringement - including "Internet piracy" of sheet music, music downloads, illegal videos (including YouTube) and manuscripts; as well as unauthorized pro­ductions,
• Unauthorized changes in their works, and
• Claims of Co-Authorship(Rent)
• Assertions of "Director's Copyright" - (Urinetown)

Expansions of speech - However, dramatists also adapt underly­ing works for the stage and so require a robust public domain from which to draw their inspira­tion. Therefore we have spoken out in favor of:

• Orphan Works - a more workable system for using abandoned properties; and
• A limited duration of copyright - an unmitigated legislative right to continually extend copyright duration conflicts with the Consti­tution and defeats the pur­pose of the copyright law, to create a rich public domain available to all.

In facing these issues, the DG has responded in many ways, including:

• Joining the National Coalition Against Censorship in 2005;
• Sending letters on behalf of DG members to newspaper editors, school administrators, and artis­tic directors;
• Using our own magazine, website, e-newsletter, seminars, and pub­lic policy statements to educate the public on these issues;
• Lobbying efforts regarding "Or­phan Works" legislation, and in support of a narrow interpreta­tion of the copyright law, both in terms of its scope and its dura­tion; and
• Cooperating with or instigating legal actions, including:
• co-authoring or co-sponsoring amicus briefs;
• providing expert testimony and data to parties in litiga­tions, and
• advising members on cease&desist letters and "take down" notices

But these efforts, especially those related to litigation, are inordinately expensive. Therefore, our newest initiative is the creation of the Dra­matists Legal Defense Fund. We have established the "DLDF" as a NY corporation and we plan to file for non-profit status with the state and federal governments, with the hope of encouraging grants and donations to it.

The corporate purpose of the DLDF will be "protecting the prog­ress of useful arts and advancement of matters having general public import with relation to stage authors' exclusive rights to their respective writings... advocating freedom of speech... in connection with stage productions to protect the artistic integrity of such productions from improper governmental regulation, and educating the public and the le­gal community as to the protections afforded by the Copyright Act and the interactions between those pro­tections and the First Amendment protection of free speech..."

The DLDF plans to have a "Liti­gation Support Program," which will focus on fighting attempts to shrink the public domain through a misap­plication of the Copyright Act. For example, the term of copyright has been extended, controversially, to as long as 120 years from creation. Ad­ditionally, directors have recently at­ tempted to copyright certain generic stagecraft, such as using a colored ribbon to signify blood flowing from an actor. And recently, Disney filed "intent-to-use" trademark applica­tions for works traditionally consid­ered in the public domain, such as Snow White and Cinderella.

The program could also get in­volved with attempts to weaken the incentives established by the Copy­right Act, either by infringement, piracy, or other means. Likewise, the DLDF will speak out against arbitrary discrimination by authorities and other forms of censorship in viola­tion of the First Amendment. E.g., anti-smoking legislation could inhib­it production of certain classic plays, such as A Streetcar Named Desire, in Colorado, Illinois, and other states. Furthermore, there is pressure by anti-gay groups not to perform Rent and Angels in America and there were bomb threats issued during the New York City premiere of Terrence Mc­Nally's Corpus Christi.

The Litigation program will pro­vide materials and consultation to those involved in these lawsuits, and could also provide amicus briefs and/or offer expert testimony. When an issue of significant public import is invoked and an indigent dramatist is involved, the DLDF could even consider either filing suit as attorneys for the writer, bringing suit itself, re­taining outside counsel to represent it, or filing as a party or as attorneys for other organizations, depending on the situation and on the resources available.

The DLDF will also have a Theatre Law Education Program, dedicated to cultivating the field of Theatre Law among legal professionals and in law schools nationwide. This pro­gram will collaborate with students, faculty, and school administrations to facilitate the development of The­atre Law courses at law schools and assist students in forming Student Dramatists Legal Defense Fund chap­ters. It will also assist Bar Association members interested in forming The­atre Law Bar Sections or Committees. Moreover, it will partner with pro bono coordinators interested in developing Theatre Law volunteer opportunities at their firms.

The program will also educate the public via publications such as ar­ticles, magazines, books, e-newslet­ters, and a web presence. These pub­lications will inform readers about details and developments in the law surrounding the First Amendment, copyright law, and the theatre busi­ness. It will also instruct readers as to legal and other resources available to dramatists around the world. Fur­thermore, the DLDF could arrange travel of renowned experts in these fields for seminars around the coun­try to schools, playwriting confer­ences, and other theatre-related law or business events, should resources be available.

We will update you on the devel­opment of the DLDF as we proceed.

See you in 60.