IN THE THEATRE INDUSTRY, copyright law protects the contributions of authors, be they playwrights, librettists, composers, or lyricists. However, the highly collaborative nature of theatre brings many contributions to the production from non-authorial artists as well. A winning production is the perfect combination of these elements, some owned outright by their respective contributors, some owned only under certain circumstances, and some not proprietary at all. On one end of the spectrum is the author as owner of the script, and on the other end is the director who—according to the Copyright Act of 1976 (the “Copyright Act” or the “Act”) and the Department of Justice—owns no copyright. Other artists, however, enjoy some type of ownership interest.
As the owner and licensor of a property that may be encumbered or otherwise affected by the ownership claims of your collaborators, it is useful and important for you to understand what your colleagues in the industry might own.
A Review of Copyright: The Law of the Land
In the realm of “intellectual property,” to own one’s work means to own the copyright. Copyright protection is based on original works of authored expression that have been ﬁxed in a tangible medium. The Act uses the term “original” to indicate some minimal amount of novelty in the expression. It explicitly sets forth that copyright protection—and therefore ownership—does not extend to “any idea, procedure, process, system, method of operation, concept, principle or discovery.” This rule, the “idea/expression dichotomy,” means that ideas, as opposed to authored expression of those ideas, are not copyrightable. If an idea was copyrightable then there would be only one super hero, one secret agent, and one damsel in distress. But because it is the expression of the idea that can be copyrighted, society can have a Snow White and a Cinderella in addition to a Rapunzel. Allowing ownership of ideas rather than the speciﬁc expressions of those ideas would completely stiﬂe meaningful creativity. (See “No Copyright for Directors” by John Weidman, November/December 1999.)
Still, original authorship and expression are not enough to establish copyright. The last requirement is ﬁxation, which can be as simple as jotting lyrics or notes to a song on paper or hitting the “record” button on an electronic device while singing a song. Hence, when an author’s work is a song, the physical rendering is the sheet music or recording. This ﬁxation is suﬃcient because the song, either written or recorded, can be perceived by others, faithfully reproduced by others, and communicated (by reading the notation to another person or by playing the tape). Without ﬁxation, the nature of a work is impermanent, making ownership too diﬃcult to quantify.
Exclusions from Protection
Even when a work has the three required elements for copyright protection (originality, authored expression, and ﬁxation), there are certain exceptions that will aﬀect your collaborators’ ownership. For one, the Useful Article Doctrine holds that a work is not copyrightable if it is used solely for utilitarian purposes. The diﬃculty here is determining when a work is primarily functional instead of aesthetic. If a useful article was protected under the copyright law, the protection against copying would be too similar to a patent protection. Because copyrights are easier to obtain than patents, allowing copyright protection for useful articles could ﬂood the market with easily owned monopolies. To illustrate, the drop down menus on most computer programs are too functional to receive copyright protection. There are only so many ways to state eﬃciently and accurately “Open” or “Save” (or, for that matter, to say “enter stage left”).
Therefore, if the work is considered a useful article, protection only extends to the portions of the work that are creative and are separable from its “usefulness.” This is known as the concept of separability: separating the decorative elements from the useful ones. This distinction is especially important when assessing ownership over costume designs and set designs.
An Overview of Non-Authorial Collaborators
Almost every person involved in theatre at every level is represented by a union or other protective, professional, or trade organization. For example, dramaturges have the Literary Manager and Dramaturgical Association. (For a complete understanding of dramaturges’ lack of authorial rights, see “How to Avoid Rent Control” by Christopher Wilson & Ralph Sevush, September 1997).
Actors, dancers, singers, chorus members and stage managers are members of Actors’ Equity Association. Musicians are represented by the American Federation of Musicians. Choreographers belong to the Stage Directors and Choreographers Society. Stagehands, costume designers, scenic artists, and projectionists belong to various locals of the International Alliance of Theatrical Stage Employees (IATSE). Since 1893, IATSE has covered stage hands and projectionists. Today, the organization’s membership includes professionals involved in every phase of production, from its conception through every aspect of its execution. Like other theatre unions, it aims to protect its members from undue exploitation by establishing industry standards and circulating information to promote the welfare of the industry. While IATSE’s main goals are to inform and protect individual members’ work, not all creations receive the same protection.
Costume, Lighting and Scenic designers are represented by the United Scenic Artists, Local 829, an autonomous Local of IATSE. Their constituents have made ownership claims. Let’s examine their roles more closely.
Costume designs do not ﬁt neatly into any of the categories listed in the Copyright Act because they are considered useful articles. As intimated above, regardless of how creative the costume design, protection may not ensue if it will limit, restrain, or create a monopoly on useful items. The costume designer creates sketches of the clothing to be worn by the actors. The sketches themselves are considered protectable pictorial works, but the resulting clothing may not be because of the useful article doctrine. Moreover, ownership of the sketches does not include the right to prevent the creation of the costumes by another person.
In order for a costume to receive any copyright, it must have creative elements that are either physically or conceptually separable from the silhouettes. For example, period costumes may not be copyrightable, but a speciﬁc lace and ﬂower pattern on such a dress might be. Costumes that are more obviously copyrightable are, for instance, a bear or lion costume. Certainly, no professional or aspiring costume designer would lift her work from “The Lion King” and pass it oﬀ as her own.
The useful article exception is not unique to costume designers; set designers face similar barriers.
The Set Designer oversees the drawing of blueprints and coordinates the various departments that contribute to the artistic design of the set and the execution of those designs—namely construction, set design and decoration, and props. Many but not necessarily all of these activities can result in copyrightable material. For example, creating original sketches and designs for sets and backgrounds constitutes authorship. The sets and backgrounds themselves would be copyrightable copies or derivative works of those sketches. Nevertheless, if the sets and props have a utilitarian function, they may prohibit copyright protection because they are “useful articles.”
For example, if the set consists of a chair and table used by the actors then it will probably not be copyrightable because it is a useful article. However, if the set merely portrays the appearance of a chair or a table but these props cannot be used for their intended functions, then it is not considered a useful article at all, and would likely be protected as a pictorial, graphic, or sculptural work.
In addition, an arrangement of furniture pieces may be copyrightable as a compilation, even if not individually. In the recent controversy surrounding the productions of “Urinetown” in Chicago and Akron, the set designer sought to register the set as a whole rather than its individual elements. He successfully argued that his original design and arrangement of objects were not simply concepts and ideas or a mere collection of useful articles. The Copyright Oﬃce registered the scenic design based solely on the technical drawing depicting the set design. Consistent with this registration, the Copyright Oﬃce has registered a number of set designs for theatrical productions. (To learn more about the Urinetown case, read “The Urinetown Papers: The U.S. Copyright Oﬃce Debunks the Notion of a ‘Director’s Copyright’ by Ralph Sevush, March/ April 2009.)
Although a valuable contribution to theatre, lighting does not receive copyright protection. Stage lighting provides the mood of a performance and creates a diﬀerent atmosphere from act to act. The lighting designer’s lighting plot is adjusted over the course of rehearsals with the set in place and in consultation with the stage director. The technical aspect of the discipline consists of individually focusing several hundred lighting instruments, determining color mixtures, the use of projections, and timing and programming every lighting change over the course of the play. These factors demonstrate originality and authorship by the designer.
But lighting cannot be captured for a substantial amount of time in any medium, which creates a problem with ﬁxation. Similar to choreographers, lighting designers are limited as to how they can solve this issue. But there is a possibility the cue sheets, signals for lighting changes followed during a performance, will be accepted by the U.S. Copyright Oﬃce. Recently, for example, the Copyright Oﬃce accepted registration for the lighting design of the University of Maryland Department of Theatre’s 2005 production of John Caird and Paul Gordon’s “Jane Eyre,” a musical drama. Unless the cues are written down and presented in a tangible form, the lighting designs remain unprotected by copyright law. Similar to a director’s stage direction, ﬁxation becomes the largest obstacle in obtaining copyright protection for lighting designers.
Other collaborators who have made ownership claims of their work (and sometimes of the Author’s work) are directors and choreographers, under the auspices of their union, the Society of Stage Directors and Choreographers. Let’s now then turn to them.
We have written much on the claims by directors of an ownership interest in their work, but to brieﬂy summarize the Guild’s view, it is identical to that of the U.S. Copyright Oﬃce and the Attorney General -- directors have no more ownership in work they direct than orchestra conductors have over the music they conduct, generally failing under all prongs of the tests for copyrightability. For further understanding, see “Directors at the Gate” by Richard Garmise, November 1993; “Directors at the Gate: Locking the Gate” by Richard Garmise, September 1995; “The Director-Dramatist Relationship” by Ralph Sevush, May/June 2000; and “The Urinetown Papers” by Ralph Sevush, March/April 2009.
For choreographers, the obstacles to their ownership claim are largely based on ﬁxation and the doctrine of “scènes à faire.” Regarding ﬁxation, claiming ownership over something impermanent like a dance move performed a certain way at a certain moment in time is impossible if it cannot be faithfully communicated to and perceived by a third objective party in a predictable, replicable manner. Ownership claims require something that lasts outside the ephemeral moment, a tangible medium. Choreographers have typically relied on video recordings or written systems such as Labanotation and Benesh notation to resolve ﬁxation. Therefore, whether an improvisational dance move or a well-organized group number, a live performance is in itself not protected. In fact, any type of improvisation, (e.g., guitar solos, improvisational acting) during a performance is not copyright protected unless and until it is in written form or recorded.
The other problem faced by choreographers (and designers, directors and authors as well to some extent) is the doctrine of “scènes à faire.” Literally translated as “a scene that must be done,” this doctrine involves obligatory movements, events, characters, and settings that are essential to or common in a particular genre, book, or choreography. As obligatory or generic, they are aﬀorded no copyright protection. For instance, using stripped cars, prostitutes, and rats to depict the inner city cannot be made exclusive to one author. Closer to typical theatrical choreography, use of codiﬁed strikes, punches, kicking, and knee and elbow strikes will appear in any martial arts ﬁghting scene on the screen or stage. Likewise, a choreographer cannot claim use over a waltz, fox trot, or the “robot.” Without the scènes à faire doctrine, later choreographers might be required to design around the most satisfactory, natural or logical choices. Like the idea-expression dichotomy, the scènes à faire doctrine helps strike a balance between the need to protect past creations and the need to encourage new ones. Consequently, although choreographic work is not explicitly deﬁned in the Act, Senate Reports speciﬁed that they “do not include social dance steps and simple routines.” Accordingly, “character moves stage left,” or “character waltzes across the ﬂoor” would not qualify for any protection.
Actors bring to life the words of the playwright. However, improvisational contributions by actors will not entitle them to copyright protection for their ideas. The relationship between the writer and the actors is not always cut and dry. In some instances, the issue of authorship can seem blurred when collaboration between performer and author results in additions or adjustments to the script. But it is not blurred. By law, improvisational acting incorporated into a script does not aﬀect the dramatist’s copyright.
In Erickson v. Trinity Theatre, Inc. the defendant theatre claimed joint authorship with a playwright based on the contributions made by actors. The Seventh Circuit Court ruled in favor of the playwright and found no joint authorship. The court held that there was no intent between the playwright and the theatre to be joint authors at the time the play was written. The court relied on three factors to determine the absence of authorship: (1) the works were largely created before the actors oﬀered their improvisations; (2) the ﬁnal contents of the plays, including which suggestions to incorporate, were solely determined by the playwright; and (3) neither the playwright nor the theatre considered the actors to be joint authors. In order to qualify as an author, one must supply more than mere direction or ideas. An author is one who creates the work, translates the idea into a ﬁxed, tangible expression and is then entitled to copyright protection.
Many cite “A Chorus Line” in the mistaken belief that authors shared some stake in copyright with the actors. In fact, the authors arranged a revenue stream of some percentage from the authors’ net income in exchange for the “life story rights” of those they interviewed in creating the work. Their interviewees just happened to be the initial actors auditioning for the roles. Brieﬂy, “life story rights” are a euphemistic term of art for a release from claims of defamation or privacy/publicity torts. (For details on so-called “life story rights,” see “Real Person In Your Play Part 3” by Ralph Sevush, March/April 2001 and “Real Person in Your Play (Guild Seminar)” by Ralph Sevush, November-December, 2004.)
It is easy to appreciate that dialogue, stage directions, lyrics, and music contained in dramatic works are part of the dramatist’s copyright. Interpretive collaborators in the theatre are invaluable to any production, so it is important to understand the contours of your colleagues’ ownership over their contributions some of which might be their intellectual property. Choreographers own their copyright, much like a dramatist. Costume, set, and lighting designers might own some copyright over their works under the limited circumstances described in this article. Still others, such as actors and directors, have no copyright claim over their work and are thus compensated based on other criteria. Only through continued awareness to such distinctions in copyright law will you be able adequately to protect your script as an author. As always, if you have any questions about where your copyright ownership begins and ends, do not hesitate to call the Business Aﬀairs Department of the Dramatists Guild.
PEARL PARI served as the Guild’s Business Aﬀairs Associate Intern during Fall, 2010.
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