When is it appropriate to pull the rights to my show?
We all recognize that the theatre industry is not perfect and often theatres and theatre companies that are intended to be safe spaces for collaboration turn into the exact opposite. We are also living through a time in which theatre-makers of all kinds are more empowered to speak up than ever before in response to violations of their rights while working in the industry. For the dramatist specifically, this has also brought up the issue of when it is appropriate to pull the rights to your play or musical.
First, it is important to acknowledge the difference between dramatists and most of the other personnel working on a production: dramatists are not members of a union that can collectively bargain on their behalf. While the Guild has promulgated its bill of rights for dramatists for nearly a century, and its advocacy efforts have certainly helped to make these rights the industry standard, these rights are not guaranteed unless they are part of a written production contract. Without a contract, which includes provisions safeguarding your authorial rights (such as the right to be present, script and artistic approvals, and the reversion of rights), even if you feel as if those authorial rights have been violated, you are without recourse.
To reiterate, you should always, always, always make sure that you enter into a written production contract for any production, whether it is a small community theatre or a well-known professional one, because your contract governs your relationship during the process as well as how to get out of that relationship in the event it goes south.
In order to “pull the rights” to your show (i.e., terminate the production rights that you have granted to a producer), you must have a contractual right to do so or else you face potential liability. A contractual right to pull your show can take many forms; the most common form is when the producer is in breach of a particular provision of the contract and that provision provides for the author’s right to terminate in the event of such a breach. For instance, in both the DG Model Premiere Production Agreements and the DG Model Licensing Agreements, there is explicit language which provides that any violation of the provisions which safeguard authorial rights shall be deemed sufficient cause for author to immediately terminate all rights granted to the producer without any liability.
Therefore, if you feel that your rights have been violated, your first step is to look to your contract to determine the following:
- If the producer is in breach of its obligations;
- If you have the right to terminate the contract based on such breach, or a right to terminate for any other reason;
- If you are released from any liability if you exercise your termination rights.
If the producer is not in breach of the contract, and there is no other contractual right on which you can base your termination, yet you choose to terminate the contract and “pull the rights” to your show anyway, then the producer may have a valid breach of contract claim against you.
Or the producer can simply ignore you and produce the show anyway, because they have a contractual right to do so. If they produce the play without a license, however, they face potential liability for both contractual damages and copyright infringement claims, which can be significant.
You might think that you are safe to pull a show if you have no written contract with the producer, but that is not so. Contracts don’t have to be in writing; they can be implied by a course of conduct by the parties that indicates a meeting of the minds on the essential terms of a contract. And while you may be able to terminate such an oral or implied agreement, a producer may have raised funds, invested resources (money, staff time, materials, etc.), and entered into contracts with other parties (actors, landlords, directors, etc.) in reasonable reliance on their agreement with you. Should you pull the show without a contractual right to do so (including a release from any liability for doing so), you may be liable for the “reliance damages” suffered by the producer because of your actions.
Even when there is no breach, can you pull the rights if the producer’s circumstances have changed to such an extent that allowing them to produce the show would damage your own reputation or work? Production contracts don’t have “morals clauses,” but there may be an argument to nullify a contract because fulfilling it would create greater liability for the author than was originally bargained for, changing an essential term of the contract… the cost to the author. This, however, is a theoretical legal argument you should explore with your own attorney before taking such an action.
As you can see, the decision to pull production rights that you have granted to a producer is not a simple one. While the BA HelpDesk is not able to review your signed contracts to help determine whether you have a valid claim for termination, the attorneys at the Guild can always review your unsigned contracts to measure them against prevailing industry standards and give you tools to negotiate provisions that include the right to terminate without liability in the event of a breach of the agreement.
