Oct 15, 2020
DG Legislative Policy Agenda
Dramatists Guild Legislative Policy Agenda

The Dramatists Guild of America is a national trade association of playwrights, composers, lyricists, and librettists. As such, the Guild is an advocate on behalf of its members on the issues related to their careers as dramatists and, more specifically, in their role as authors of original works of copyrightable expression, created as independent contractors in a free society.

The Guild, however, is a non-partisan organization and does not support or make contributions to candidates or political parties. Instead, it advocates on specific issues through its educational outreach to inform its members, as well as the general public (and our elected officials), of the impact that particular legislation has, or may have, on the professional lives of dramatists.

It is our intention to empower our members to act in their own interests. Toward that end, the Guild currently advocates on the following issues:

 


 

I - COPYRIGHT

 

Theatre writers are unique among their fellow storytellers. Instead of receiving the perks of collective bargaining, they have maintained ownership and control of their work as the cynosure, the star by which they steer their course through the theatre industry. It is the primary reason why successful writers working in other media bother to return to the field. But the dramatists’ control of their work didn’t come from the ether; it is a condition that has been achieved with only one element of leverage: copyright ownership.

The copyright laws have been the bulwark of theatre writers for generations. These laws have allowed theatre writers to prohibit changes in their words and music without their approval; they have allowed them to also require approvals over the choice of directors, choreographers, actors, designers, and all the other artistic personnel hired to work on their shows. The copyright laws have also allowed theatre writers to license their works throughout the world, in new markets and new media, with the hope of creating an ongoing revenue stream that can buy them the time to continue writing for the theatre.

But the core principles of copyright are under siege in this, the digital age. You can go onto YouTube, right at this moment, and see parts of illegally recorded productions of Broadway shows, not to mention recordings of shows performed around the country. There are off-shore websites who have made a business in trafficking in full recordings of these shows, but dramatists currently have no effective means to stop anyone from dealing in this contraband. You can also go to Facebook and find sites that specifically deal in the sale and barter of illegally distributed sheet music, musical recordings, plays (published and unpublished), and monologues.

Many younger theatre fans, having grown up in this digital environment, believe that “all information wants to be free,” and intellectual property is itself an illegitimate limitation on speech, even as they wax rhapsodic over their favorite songwriters and playwrights. And the websites that cater to them profit through ads, subscriptions, and sales, all the while claiming hands as clean as those of Pilate. This is particularly true of digital mega-companies that download entire libraries of work, including plays and musicals, without the author’s permission, and then find ways to dissect the material and parse it out in digital bits and bytes, monetizing as they go, claiming they are making a “fair use” of it when their use could not be less fair.

So, on behalf of copyright owners, the Guild encourages Congress, in any future revisions of the Copyright Act, to strengthen the ability to stop such infringements, and to allow authors to defend the copyrights which they have struggled so long to maintain. To do this, the DG advocates for:

  1. Shifting the burden of policing the infringement that occurs on social media sites from the individual authors (who have neither the means nor the expertise) onto the sites themselves, who are profiting from these infringements, and who have the means and expertise to keep such illegal material from being exploited on their sites in the first place, much as they do with pornography.

  2. Stretching the long of arm of American justice around those off-shore websites that are flagrantly violating not just our laws, but international copyright law as well, and profiting from transactions on our soil, abetted by our own credit card companies;

  3. Creating a “small claims court” process for the efficient adjudication of smaller scale infringements, so that these cases can be pursued instead of abandoned out of economic necessity; and

  4. Modernizing the copyright office, and making it more independent from political influence.

 


 

II – FREE EXPRESSION

 

Theatre writers are not just copyright owners. They are copyright users, too, and this duality requires the Guild to maintain a balanced perspective on issues of copyright and free expression. This is because most musicals, and a growing number of plays as well, are based on some pre-existing underlying material. This material may be a book, or movie, or magazine article, or a life story, or a catalogue of songs. It may be under copyright or in the public domain; use of the material may require a license or it may constitute a fair use. But this reliance on underlying work has made the DG sensitive to the cultural imperative for a rich and thriving “public domain” of materials for all writers to draw upon, and the need for limits on copyright that are imposed by the U.S. Constitution.

The Constitution established copyright law through Article I, Section 8, but it did not do so as an end in and of itself. It was a means to an end, to encourage the progress of our society. The framers did not establish a new perpetual property interest with this clause; they were, instead, carving out an exception from general First Amendment principles, to grant an exclusive monopoly over a particular piece of original expression to its author for a “limited period.” They did this in order to incentivize the creation of new works that would eventually enrich the public domain, and be available to all.

Given this perspective, the Guild advocates for:

  1. Stopping the continuous extensions in the duration of copyright, which renders meaningless the constitutional mandate that copyright be for a “limited period.” These unlimited extensions frustrate the act’s purpose to enrich the public domain and, instead, they impoverish it. Granting retroactive value to pre-existing works does not create an incentive, since the work already exists. Instead, it just creates a windfall. The DG views the current term of copyright of “life + 70 years” as consistent with international standards, and a more than adequate incentive for any individual author to create new work; after that, further extensions of the term of copyright become about indefinitely extending the profitability of corporate assets at the expense of the public interest;

  2. Making the cache of material that would otherwise be available for transformative uses by playwrights and musical theatre writers, but for the fact that no one knows who or where the copyright owners are. These “orphan works” sit fallow, unused by their owners, and by other artists, and ignored by the public, too. A system must be devised that allows for the use of these abandoned materials, in order for authors to create new work, yet preserves the rights of the original authors, should they ever appear and make a claim;

  3. Placing “Fair use” considerations at the center of any copyright law revisions. “Fair Use” is the First Amendment safety valve that keeps the limited monopoly granted by a copyright from running afoul of the very purpose of copyright law… to enrich the public domain. If a wealthy media company can rattle their sabers to intimidate writers who attempt to create a parody, or a historical work based on the public record, or a work that transforms the nature and intent of material on which it is based, then the creation of new works is deterred, and free expression is chilled;

  4. Preventing the expansion of copyrightable subject matter from including conceptual work like stage direction (for example). Otherwise, such expansion would grant an ownership interest in ideas about how a play should be staged, thus turning uncopyrightable “ideas” into copyrightable “expression,” with disastrous results for all dramatists, as well as for the public at large. Under those circumstances, works currently freely available to all (e.g., the works of Shakespeare) could establish new layers of copyright ownership in their staging, forcing them out of the public domain;

  5. Maintaining and expanding the defenses for dramatists against claims of libel, invasion of privacy, rights of publicity, and obscenity, that may otherwise be used by those with power to suppress unflattering or unpopular works of artistic expression;

  6. Supporting the principle that a writer’s casting requirements are a part of the writer’s artistic expression and, therefore, should be immunized by the First Amendment from civil rights employment claims under Title VII and Title IX; and

  7. Increasing the availability of public and charitable funding for theatre to expand production opportunities, and insuring that such funding cannot be used to effect the artistic expression of such subsidized works.

 


 

III – INDEPENDENT CONTRACTOR ISSUES

 

Film and television writers are deemed employees and, therefore, are members of a labor union. They create work under the Copyright Act’s “work for hire” doctrine, which divests authors of ownership and control over their work. As a result of collective bargaining, however, those writers are well compensated for their contributions, including the funding of their health and welfare benefits, and pensions.

Dramatists, however, are not employees. Instead, the courts have determined that they are property owners who are licensing their property and, therefore, are not permitted to unionize. As a consequence, dramatists have no health insurance, vacation time, sick leave, or pension, based on their writing for the theatre.

So, as independent contractors, theatre writers are also concerned about such issues as:

  1. The cost and access to health insurance;

  2. Federal and state tax policy (related to “hobby loss” rules, incorporation, etc.);

  3. Anti-trust issues (related to collective bargaining for independent contractors);

  4. The applicability of sexual harassment laws to non-employees; and

  5. The impact of Covid-19, where both enacted and proposed legislation creates unique concerns and opportunities for theatre writers. For a summary of that legislation, please go to our Covid webpage, which is continuously updated.

 


 

If you want to inform us about other issues that impact your career as a dramatist, or if you want to see your community engaged on such issues, the Guild welcomes and encourages your involvement. To discuss your options, contact Jenna Chrisphonte, the Director of Community Engagement, at jchrisphonte@dramatistsguild.com.

Whatever your view on any particular issue, the Guild encourages you to participate in the legislative process, and make yourself heard. The following links are available for you to do so.

Determine who your current state and federal representatives are, based on your zip code: https://www.house.gov/representatives/find-your-representative

Determine who your current state and federal senators are, based on your zip code: https://www.senate.gov/general/contact_information/senators_cfm.cfm

See which committees your representative sits on: https://www.congress.gov/committees

See which committees your US senator sits on: https://www.senate.gov/committees

 

Read our October 19 update on Relief Legislation

Read the DG Digest for the week of October 20

 

 

 

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