A Word To The Devised: Devising A Legal Strategy For Authors Of Devised Theatre

Devised theatre involves multiple artists collaborating, usually by way of improvisation and other theatre games, to create an original work. This method first gained a noticeable foothold in the United States in the 1960s and 1970s. During that time, artists inspired by recent political and social changes found a home in devised theatre groups which were said to tear down the “the patriarchal and hierarchical divisions of the traditional theatre company” and replace it with a democratic, experimental, collaborative spirit. In so doing, devised theatre groups created “a new set of working relationships” that altered, challenged, and arguably weakened the role of the playwright. No longer did productions “revolv[e] around the interpretation of a playwright’s text by a director,” and no longer was that text created as part of a solitary exercise. Rather, devised theatre focused on “creative artists,” who generated a script by working together and reacting to one another. Devised theatre effectively blurred the traditional line between authors and secondary contributors.

Devised theatre has evolved over time, and today there are countless such companies each employing unique processes and guidelines. This flowering of devised theatre has generated challenges for authors: devised theatre increases the number of individuals involved in creating a work, it also increases the number of individuals who might seek to assert ownership of that work. As one artist noted, “there is a lot of … arguing about who the work belongs to – who has actually done the work.”

Given the potential for misunderstandings and disputes, it is critical for an author involved in devised theatre to understand how his or her legal rights might be impacted by the particular devised theatre process in which he or she is participating. Some relevant legal concepts are discussed below. Note that, for purposes of clarity, this article distinguishes between a “writer” (an individual who actually puts pen to the paper) and an “author” (an individual who owns the copyright in a given work). These terms apply equally to book writers, lyricists and composers.

The purpose of copyright law is to encourage the creation of art by providing authors with a short-term monopoly over their work. In order not to stifle the marketplace of ideas, the Copyright Act of 1976 protects only “original works of authorship fixed in any tangible medium of expression.” Stated alternatively, it is only an author’s expression of an idea that gains protection, not the idea itself. For devised theatre, the legal question becomes who is the author, and hence the owner, of that particular expression.

Perhaps the most significant legal concept relevant to authors of devised theatre is that of the “joint work” (sometimes called a “co-authored” work). Such a work is defined by the Copyright Act as one “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” The law grants each co-author full ownership rights in the entire work. This includes the independent (non-exclusive) right to license the entire work and share equally in its profits.

The Guild has long advised its membership to avoid joint authorship “by statute” in favor of a specifically tailored contract outlining each party’s contributions, ownership, obligations, and more, hopefully using the Guild’s “Collaboration Agreement” as a template. This is because joint author-ship may become a legally binding relationship that is not beneficial or desired. For example, consider the scenario when two authors decide to dissolve a collaboration. If mistakenly deemed a joint work, all the material generated from the collaboration would be forever fused and owned by both parties. Neither party could use his or her original creation in another context.  

Authors can avoid this problem by registering individual, separate copyrights in their respective contributions and signing an agreement to govern the nuances of the collaborative relationship. This may prove challenging in devised theatre because the greater the number of contributors involved, the more difficult it becomes for potential authors to “identify [their] specific contributions.”[For more information about avoiding the pitfalls of “joint authorship” please see Sarah Merry, “To Be or Not to Be Joint Authors,” The Dramatist (December 2012).]

Generally, courts apply a two-part test to determine whether contributors are co-authors. First, contributors must make independently copyrightable contributions to a work as opposed to e.g., merely helpful advice. Second, they must intend to be co-authors, such intent to be evaluated in light of four objective factors: (1) whether both parties exercised decision-making authority concerning the work; (2) whether they were billed as co-authors on playbills and drafts; (3) whether they executed any written agreements listing one or both as the author; and (4) how the parties spoke about one another. [For a more in-depth discussion on this case see Christopher Wilson & Ralph Sevush, “How to Avoid ‘Rent’ Control,” The Newsletter (September 1997).]

Applying these co-authorship concepts to devised theatre can be tricky. As at least one court has noted, “as the number of contributors grows, the work itself becomes less the product of one or two individuals who create it without much help,” such that the word “author,” or even “joint work,” becomes “harder to apply.”

In light of the complexity outlined above, before any writer becomes involved with a devised theatre group, he or she should seek to clarify with specificity what the group is asking of the writer. Although there are infinite variations in the roles and responsibilities of writers and others in devised theatre, four general categories are discussed below for purposes of analysis: (1) writing as an ensemble member; (2) writing as a delegate (3) writing as a freelancer and (4) writing as principal deviser. These categories can help illuminate the questions that an author should define and memorialize in written form before agreeing to be part of a devised theatre project.

The first category, “writing as an ensemble member,” typifies devised theatre in its purest form, in which each member of the ensemble fully shares in the creation and scripting of a show. Because such an ensemble has no single visionary, the writing process is often burdened by the multiple writers involved. From a legal standpoint, this form of theatre is perhaps the best candidate for joint authorship and its attendant equal sharing of rights and royalties. This is because, in theory, each member is intentionally participating in the joint creation of an original script from the inception of the project and each contributes material that stands on its own as copyrightable. Of course, conflicts may emerge concerning the quality or even quantity of individual contributions. But the law does not “require that… co-authors must make equal contributions to the work.” Indeed, “even a person whose contribution is relatively minor,” or only minimally creative, “is ac-corded joint authorship status, enjoy[ing] all the benefits of joint authorship.”

There are many potential solutions to this problem. Some theatres find that it is best to take a rigid approach to dividing the written work, in effect, pre-determining ownership. For example, members of a company could collectively work on general concepts, characters, and plots and then work individually on specific scenes. If a change is suggested to an individual scene during the process of devising, only the original author of that scene would decide which specific edits were appropriate and make the written changes, thus securing his or her position as author of that portion.

Alternatively, the participants can contractually agree to assign larger royalty percentages to individuals who made larger contributions. Because the actual contributions remain unknown until the work is completed, some writers’ associations advocate contractually agreeing to renegotiate the percentages when the project is completed. Of course, one can imagine the potential difficulties involved in the face of a dispute. In either of these examples, hiring a “note taker” to track individual members’ contributions might help avoid disputes later on, although this would not necessarily resolve the problem of assessing the value of the individual contributions.

A second example of a writer’s role in devised theatre is when he or she is assigned the task of writing—typical of an arrangement in which the members of a devised theatre company, rather than taking equal responsibility for all matters, divide the theatrical responsibilities into discrete sections delegated to individual members of the company. This process of devising eliminates the burden of working collectively on every element found in the ensemble process described above. Although there is division of work among the group, the theory remains that there is no single deciding entity and that everyone is still equal and should enjoy equally in the fruits of their collective labor.

The potential difficulty with this model is that it appears no different from that of traditional co-authorship, with one important exception: ostensibly, the writer in this category is given full control of his or her own writing – but that writing is nonetheless subject to edits and changes by others, who may disregard the writer’s unique role and view themselves as joint authors. If such a dispute were litigated, the resolution would depend not only on specific facts but also on unpredictable issues such as the weight the court will apply on each of the aforementioned factors that determine intent.

To avoid these difficulties, it is critical that a writer understand his or her role: is he or she acting as a mere scribe, or authoring original text? For example, one commentator’s sense of this process would as-sign a relatively minimal role to the writer, as merely the “writer of text within the devising process, rather than the writer of the show.” Such a perspective would view the script as one created by all of the ensemble members and the writer as a person who simply completes his or her assignment. Such a process can easily become a “clash between politics, people, the writer’s personal stand and the actor-teacher creation of the characters.” In the end, the extent to which the author is asked to consult with and obtain approval from the group might be of great importance.

The freelance writer is in a similar position to the delegate writer in that he or she is also scripting a play based on collectively-generated material. The main difference between these two types of writers is that the freelance writer has not participated in the devising process. Instead, he or she might be brought in at the end of the devising to assemble what the actors have produced. This role involves less consultation with the group and more individual work much like a typical adaptation.

One theatre company described this job as “writing original material where necessary, editing and tightening and reorganizing the material we already had.” In that particular instance, the playbill recognized both “devisers” and “writers” as separate entities. Here the issues of intent, control, and value of the individual contributions may be significant. It may well be that the devisers own copyrightable source material but would still not be viewed as co-owners of the resulting work itself. While adaptations would explicitly spell out the scope and nature of the license to use source material, the freelancer of devised material may well have an implied non-exclusive license conveyed by the devisers to the playwright to use the material.

Of course, the more active the group members are in the writing and reviewing process, the more complicated this arrangement becomes and the more emotionally tied the members become to their work. In any case, the writer would be well advised to record the parties’ understandings in writing before beginning work.

Finally, a writer may adopt the role of a principal deviser, leading a group of devisers to a final product that he or she synthesizes. This process, unlike the others, involves a visionary leading the group by way of research materials, guided discussions, and relevant exercises in order to generate a final product that he or she will write independently.

Although it may appear that a principal deviser has complete control over the script and no intent for others to serve as co-authors, this has not stopped secondary contributors from arguing that they are in fact co-authors. In Erickson vs. Trinity, for example, the court reviewed the authorship status of three plays. On two of them, the court found that the writer had complete control and decision-making authority, and had even done substantial work before she engaged in the collaborative process, making her the sole author. The third play, though, contained two scenes that were developed within a devised process – suggesting that they might have been deemed the product of co-authorship. The message of Erickson is clear: when a writer engages in devising practices, he or she is vulnerable to an authorship dispute, even as to individuals that he or she perhaps never considered as collaborators.

As with the other scenarios discussed above, the best way to prevent authorship disputes in the context of a principal deviser relationship is to describe and outline the expectations and understandings of the parties in a written contract, spelling out copyright authorship and entitlements to royalties. In the absence of such a contract, a primary writer may find parts of his or her creation stripped away, in effect undoing everything the devising had set out to accomplish.

Although courts have adopted guidelines to understand co-authorship, the large numbers of individuals involved in devised theatre coupled with the varied methods of devising add additional complications to an already complex issue. Accordingly, it is advisable for a writer working in or with a devised theatre group to ask about the theatre’s processes and prepare a written document outlining the parties’ respective relationships, responsibilities, and expectations. Such measures can help ensure that the author’s talents and rights will be respected and preserved.   

1. Deirdre Heddon & Jane Milling, Devising Performance: A Critical History 1 (Palgrave 2006).

2. Alison Oddey, Devising Theatre: A Practical and Theoretical Handbook 1 (Routledge Printing 1994) at 2, 4, 8, 43, 49, 51, 54, 56 (hereinafter Oddey).

3. 17 U.S.C. § 101 - 102(a) (1982). Please see D. Singer, Five Commonly-Asked Questions About  Copyright, The Newsletter (May/June 1993).

4. Erickson v. Trinity Theatre, 13 F.3d 1061, 1071-2 (7th Cir. 1994).

5. This test was famously outlined in Thomson v. Lar-son. Although Thomson’s two-part test represents the majority view, other courts have developed slightly different approaches. In Aalmuhammed v. Lee, the court adopted a more flexible approach, considering not only control and intent as indicia of authorship as in Thomson, but also “audience appeal,” i.e., whether the contribution of the purported co-author enhanced the show. See Aalmuhammed v. Lee, 202 F.3d 1227, 1231, 1233 (9th Cir. 2002).

6. Benjamin E. Jaffe, “Rebutting the Equality Principle: Adopting the Co-Tenancy Law Model to Enhance the Remedies Available to Joint Copyright Owners,” 32 Cardozo L. Rev 1549, 1551 (2001).

7. Bencich v. Hoffman, 85 F. Supp. 2d 1053, 1055 (D. Arz. 2000); see also Feist Publications v. Rural Tel. Services Co., 499 U.S. 340 (1991).

8. See e.g. Playwrights Guild of Canada, Collective Creation or Group Devised Work: Strategies & Sample Agreements Designed to Safeguard the Rights of Co-Creators.

9. See Brief of the Dramatist Guild as Amicus Curiae, Thomson v. Larson, no. 97-9085 (2d. Cir.), at 30.

10. Note that the principal deviser in this category is the writer. There are instances in which a director or artistic director will act as a principal deviser and then request authorship credit. For a further discussion on directors and copyright please see J. Weidman, “No Copyright for Directors,” The Dramatist (Nov.-Dec. 1999); “The Director-Dramatist Relationship: A Guild Seminar Moderated by Ralph Sevush,” The Dramatist (May-June 2000); and R. Garmise, “Directors At the Gate: Locking the Gate: Authors, Directors and Copyright,” The Newsletter (Sept. 1995).