This two-part article originally appeared in The Dramatist, September/October 2016 on the occasion of Alice Childress’ 100th birthday. The first part, Childress in Mind written by Donnetta Lavinia Grays, is available here.
There’s one thing that a writer learns very very quickly: everybody has an opinion about your work. It becomes part of the writer’s job to winnow through those various opinions to figure out which ones are actually helpful. But, by accepting someone’s suggestions about your script, are you actually making them your co-author? “Survey says”—and the Courts say—“No.”
In 1985, actress Clarice Taylor (who had portrayed comedienne Jackie “Moms” Mabley in a skit off-off Broadway ten years earlier) contacted playwright Alice Childress about writing a play about Moms Mabley.1 Taylor, “in addition to providing the research material, which according to her involved a process of sifting through facts and selecting pivotal and key elements to include in a play on Moms Mabley’s life, also discussed with Childress the inclusion of certain general scenes and characters in the play. Additionally, Childress and Taylor spoke on a regular basis about the progress of the play.” 2 Childress wrote the play entitled Moms: A Praise Play for a Black Comedienne, which Taylor produced and starred in during the summer of 1986.
Although Taylor had paid Childress $2,500 prior to production, there was no firm agreement between the two artists. Taylor’s agent sent a draft stating “The finished play shall be equally owned and be the property of both CLARICE TAYLOR and ALICE CHILDRESS”,3 but Childress’ agent rejected that draft, and Childress registered a copyright of the script in her name. More draft contracts were exchanged, but no agreement was reached.
The relationship between the two artists deteriorated, such that “Taylor decided to mount another production of the play without Childress. Taylor hired Ben Caldwell to write another play featuring Moms Mabley; Taylor gave Caldwell a copy of the Childress script and advised him of elements that should be changed.”4 While the Caldwell play was produced without explicit reference to Childress or her script, advertisements referred to the play having been “presented earlier this season” (which was actually the production of the Childress play), and one ad quoted reviews that the Childress play had received.
Childress sued for violation of her rights under the Copyright Act and other statutes. Taylor responded by alleging that she was a “joint author” along with Childress, and was therefore entitled to share in (and jointly exploit) the rights to the Childress play. Under the U.S. Copyright law, “a ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”5 Each author then has equal rights in the script and can each exploit it, as long as they provide the co-author with their share of the profits.
In Childress v. Taylor, the Second Circuit Court of Appeals considered whether the artists intended to combine their works into a “unitary whole.” But the Court found that level of intent alone was not enough: “[A] writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions to be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work.” The Court then looked to whether the parties intended to be joint authors in the work, and cautioned that “[c]are must be taken to insure that true collaborators in the creative process are accorded the perquisites of co-authorship and to guard against the risk that a sole author is denied exclusive authorship status simply because another person rendered some form of assistance.”7
The Court ultimately found that Taylor could not show that she was a joint author of the play. “Childress was asked to write a play about ‘Moms’ Mabley and did so. To facilitate her writing work, she accepted the assistance that Taylor provided, which consisted largely of furnishing the results of research concerning the life of ‘Moms’ Mabley. As the actress expected to portray the leading role, Taylor also made some incidental suggestions, contributing ideas about the presentation of the play’s subject and possibly some minor bits of expression. But there is no evidence that these aspects of Taylor’s role ever evolved into more than the helpful advice that might come from the cast, the directors, or the producers of any play. A playwright does not so easily acquire a co-author.” 8
Just as Moms Mabley’s legacy has lived on in ways she might not have envisioned,9 so too has the legacy of Childress v. Taylor. Ironically enough, despite the fact that Childress fought to keep her rights in the play from being inextricably intertwined with Taylor’s (literally making a “federal case” out of the matter), their names are now bound together as a matter of law. This case has been cited by other courts in other circumstances, including Thomson v. Larson (better known as the “Rent” case), in which the Guild submitted a brief to the Court urging them to follow the reasoning set out in Childress v. Taylor and to find that a dramaturg had not become a joint author.
Childress v. Taylor also serves as a cautionary tale for playwrights. Before starting work on any project with another person (even if you have worked with each other in the past, as was the case with Childress and Taylor), make sure you’re both on the same creative page—that page ideally being a written [collaboration] agreement between the two of you. The very act of making theatre promotes collaboration between artists but you, as the playwright, need to be clear where that collaboration begins and ends, lest you end up in a similar situation to Childress and Taylor.
[EDITOR'S NOTE: This case created a legal term, The Childress Test, used to this day to determine mutual intent to be co-authors. Members, before you start writing anything with one or more other authors, please contact the Guild for a Collaboration Agreement.]
RELATED: Childress in Mind
1The facts are as set out in the Court’s decision in Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991).
2 945 F.2d at 502. The Court lists Taylor’s contributions, which included such things as suggesting a character, minstrel and card game scenes, and co-interviewing Moms’ housekeeper with Taylor.
3945 F.2d at 503.
4945 F.2d at 503.
517 U.S.C. 101.
6945 F.2d at 507.
7945 F.2d at 504 (emphasis added).
8945 F.2d at 509 (emphasis added).
9Such as in a documentary by Whoopi Goldberg, Whoopi Goldberg Presents Moms Mabley, that aired on HBO in 2013.