Take careful note of the quotation marks, because the headline above doesn’t nod to theatre tickets or the wholesale embrace of casual fornication. The reference, sorry to disappoint you, relates instead to the titles of two stage works created in 1926, which as of January 1, 2022 should be entering the public domain.
As a result of changes in copyright law over the years, very little entered the public domain for an extended period which ended in 2019, once again starting the annual roll of works ceasing to be under the control of the estates of those who created them. Last year’s big entry into the field was The Great Gatsby. This year, when it comes to theatre, George Abbott and Philip Dunning’s Broadway and Mae West’s Sex are leading the pack of influential works now free to those who wish to produce, alter or adapt these pieces.
Obviously what was popular and even topical 95 years ago may not hold up now, but for those whose art may emerge from transforming vintage work, public domain material certainly beats negotiating with attorneys and studios. To be clear, this applies to all copyrighted work, including novels, films and recordings, so the tranche coming available every year is quite vast.
For those who like the saga of Edna Ferber’s Show Boat but find the musical (in its many iterations) a slog for some reason, the novel enters the public domain in 2022 while the musical has at least two years to go. The same is true for Anita Loos’ Gentlemen Prefer Blondes, which appeared as both a novel and, co-authored with John Emerson, a play in 1926, so the adventures of Lorelei Lee are now fair game for new iterations. But keep clear of the musical Blondes, because anything newly created by Loos and her collaborators Joseph Fields, Jule Styne and Leo Robin are protected for over two more decades.
While the play Chicago, by Maurine Dallas Watkins, basis for the Kander and Ebb musical, also launched on Broadway in 1926, its first performance was on December 20, so it’s highly likely that its copyright wasn’t registered until 1927, meaning you can’t take the story for all your own jazz for another year. It’s a good example of why every literary work herein should be triple checked before you have at them: while copyright likely began the same year they premiered, you don’t want to get caught up by an exception, so as with all adapted works, a good legal check is in order.
On stage, Broadway brought plays by writers who were better known for other works, before or after their 1926 contributions. They include The Great God Brown by Eugene O’Neill, The Play’s The Thing by Ferenc Molnar in a version by P.G. Wodehouse (later adapted by Tom Stoppard as Rough Crossing), The Silver Cord by Sidney Howard (who won the Pulitzer for 1925’s They Knew What They Wanted), Saturday’s Children by Maxwell Anderson, The Constant Wife by W. Somerset Maugham, The Road to Rome by Robert E. Sherwood, Daisy Mayme by George Kelly, What Every Woman Knows by J.M. Barrie, and In Abraham’s Bosom by Paul Green.
While the writers getting produced in 1926 were predominantly male and white, it’s worth noting that West, Loos and Watkins led the field of women writers, which also included less remembered authors such as Glady B. Unger, whose Two Girls Wanted ran 324 performances and Margaret Vernon, whose Yellow lasted for 124, in an era when a twelve-week run could be considered a hit. There is markedly little diversity, sad to say, however the Spanish natives Gregorio and Maria Martinez Sierra had a hit with The Cradle Song.
Looking to novels which are now up for grabs, the list includes Ernest Hemingway’s The Sun Also Rises, Franz Kafka’s The Castle, and P.C. Wren’s Beau Geste. Perhaps buried in this recounting, but no doubt in need of particularly careful parsing, especially as UK and US copyright terms vary and there are Disney encumbrances to dodge as well, is A.A. Milne’s Winnie-the-Pooh, who emerged in the Hundred Acre Wood in 1926.
Why promote these old works coming out of copyright and into the public domain at a time when stages (and TV, film radio, podcast and so on) are increasingly making space for new and diverse voices? It’s not to try to elevate these works above what’s new or make any claims for their value today. However, there’s often something to be learned from the past, whether by being faithful or through radical transformation.In recent weeks, since the passing of Stephen Sondheim, we have been reminded of how Oscar Hammerstein II assigned the young artist the task of writing four original musicals as training, including a good play, a bad play and a non-play. Aspiring writers might well look to public domaterial as sources for such work because should they happen to be particularly inspired and successful in their efforts, they could, with little to no fuss, actually get the show(s) produced.
Given the disastrous reduction in live theatre that has marked the pandemic since March of 2020, one might assume that incidences of high school shows canceled over content concerns would have been curtailed as well. But as lockdowns have been lifted and as theatre educators have devised creative means to produce safely, production shutdowns have followed. However, the reason for the cancelations that have risen to public awareness is not typical of what has come before.
Over the past decade, when school theatre productions have been shut down, it is typically because of parents or community members who object to the content of the shows, with particular sensitivity to the representation of LGBTQ lives (Rent, The Laramie Project), the slightest hint of sexual activity (Almost, Maine), violence (Sweeney Todd), or the occasional profanity. The object has ostensibly been to “protect” the students – those in the show, their classmates, and even their younger siblings from engaging in such topics. The intent has been suppression of subjects and themes, all of which the students are most assuredly aware.
What of the recent cancelations?
In late February, McCaskey High School in the Lancaster PA school district canceled the spring production of Hairspray because of students who were troubled by language they found offensive regarding Black and Hispanic characters and people with disabilities. An email from a group of students to their principal was forwarded on to the superintendent, who made the decision to cancel the show.
In March, The Chadwick School, a private school in Palos Verdes Peninsula CA, shut down a planned production of the school edition of Avenue Q. A message from the administration to parents said that while “the musical had the full support of the administration…elements of our community felt uncomfortable, based on principle, with some of the tone, timing and content of the show.” The message went on to say, “The original work has been praised for its irreverent and provocative approach to themes such as race and sexuality,” but that while “theater is an effective forum to explore important topics such as these, we also believe it is important to respect the perspectives of the individuals who raised concerns.”
This week, the Hunterdon Central Regional High School canceled plans to produce South Pacific because staff and students were concerned about the show’s treatment of race. According to NJ.com, citing the district superintendent, “the district believed [South Pacific] was ‘important and relevant,” but also that “the district was aware the musical featured stereotyped characters and dialogue, and originally intended to offer a concert version that ‘significantly reduced the dialogue’.” There is no indication whether or not Concord Theatricals, which licenses the Rodgers & Hammerstein catalogue, had approved of the concert-style cutting of the show.
While the specifics at The Chadwick School are somewhat vague in the administration’s statement, and it’s unclear where the objections originated, at McCaskey and Hunterdon the source is apparent: it’s students who wanted to see the shows shut down or replaced, specifically because they felt that portrayals and dialogue were insensitive and offensive to often marginalized communities. These incidents echo what transpired at Ithaca High School in 2018, when students pushed for the shut down of a production of The Hunchback of Notre Dame after a white student was cast in a role that had been played in prominent professional productions by a BIPOC actor.
In the wake of the heightened awareness surrounding discussions of race engendered by the Black Lives Matter movement, and perhaps influenced by the advocacy of such groups as We See You White American Theatre and the Broadway Advocacy Coalition, it should not be surprising that high school students are not simply aware of, but motivated by, such concerns. Given that the racial reckoning of the past couple of years mirrors the societal upheaval around civil rights and, on its heels, youth culture in the 1960s, activism by high school students is far from surprising, especially when one considers the greater sophistication of teens in comparison with those over 50 years ago.
When the Ithaca students spoke out in 2018, their efforts yielded death threats over their fight for representation, spurred on by right-wing sites like The Daily Caller. This week, Fox News, already deeply engaged in spreading the canard of cancel culture in relation to Dr. Seuss and the Warner Brothers characters Speedy Gonzales and Pepe le Pew, have embraced the South Pacific situation as merely another example of what they decry, namely the ostensible disappearing of material that they consumed in the days before distinct communities (women, BIPOC, disability) communities were afforded a voice to express the offense given by certain portrayals and the increasing willingness of both individuals and corporations to avoid slurs.
Adults of a certain age may not even understand where the offense lies in the Dr. Seuss books withdrawn, or appreciate how an aggressively romantic skunk might echo sexual harassment or worse. Some of that comes from being brought up in an era with different mores or only remembering the barest outlines of material they consumed decades ago. They may further be confused by the weaponization of these stories being treated as examples of yet more “political correctness,” another catch-all term, like “cancel culture,” both applied to denigrate present-day sensitivity to and concern about works which once punched down at certain people with impunity.
There is no question that given only a cursory glance, the suspension of certain high school productions looks like censorship – it is, in the case of public schools at least, government officials ending a form of expression. When it rises to that level, it is very difficult to countenance, even when done in order to avoid perpetuating harm through uncritical representations of misogyny, racial bias and the like.
So the first question to be asked of the faculty and administration is, “What was the rationale for selecting this show?” “How were its dialogue and themes considered in light of present-day viewpoints on how some works may have grown dated?” “Does this material still say what it intended back in its original era?” While some of these questions may seem absurd with such modern material as Avenue Q or Hairspray, it’s worth remembering that both are around 20 years old. South Pacific is considerably older.
The next question is whether, in recognizing what some may view as problematic material, any effort was made to contextualize it for students and even the larger community. Some may object to the use of the n-word in certain texts, but does that mean the works of August Wilson shouldn’t be studied or performed in a high school setting? How, and by whom, students are led to understand certain material can have a significant impact or the repertoire open to schools. While Wilson’s estate will not permit the alteration of his texts, that is not always the case for all works in high school settings. If a handful of words render a work ostensibly unperformable, the author(s) or their estate(s) may grant dispensation for certain changes.
That it was the student version of Avenue Q that raised objections in California is interesting in that the text and lyrics had already been altered to render it more fit by some for school performances. Perhaps it is due for another review. Yet at the same time, it may reach a point where the bowdlerization of the material renders it so unrecognizable that it becomes a different work altogether. The degree to which that does or does not occur is entirely at the discretion of its creators.
It is important to note that unlike some high school shows that were shuttered specifically to suppress ideas like racial, gender and sexual equality, the decision in Lancaster over Hairspray was not shrouded in short, blunt statements. Instead, the superintendent, Dr. Damaris Rau, wrote a blog post fully explaining her decision. She wrote in part:
I also believe context matters. Our country has gone through some horrific events, including the murder of George Floyd. I know many of our students participated in the social justice marches this summer. We know mental health issues of adolescents have grown and intensified during the COVID-19 pandemic. The language and portrayals in the show risked further discomfort—and potentially trauma—for students facing the harsh reality of racism in our country. In addition, many families bring their younger children to see our musical.
In light of this current environment, the calls for social justice, and the written concerns of the students, I believe this is the best decision at this time.
In emails with Arts Integrity, Dr. Rau elaborated that in addition to specific dialogue in the show, the students had expressed concern that Hairspray is a white savior narrative. She went on to talk about the in-school training around implicit bias, equity, and diversity, which began two years ago.
The objections to South Pacific may prove most surprising because it was written specifically to decry racism – witness “You’ve Got To Be Carefully Taught.” But in its portray of Bloody Mary and Liat weren’t they also deploying stereotypes that have become more and more obvious as racial awareness has evolved over the past 70 plus years? Those who believe vintage anti-racism texts can’t possibly become problematic need only look to another musical from roughly the same era, Finian’s Rainbow, which used blackface in order to fight racism.
Nothing herein should be considered to advocate for the alteration of texts to avoid any and all offense; we will not benefit from the homogenization of culture. The state of copyrighted texts is the sole purview of creators or their estates, and even if changes are authorized individually or enshrined globally, it is vital that the original versions are retained and preserved, since we should never be comfortable with the permanent erasure of history. But if the Seuss estate decides that it’s works no longer are fit for purpose and withdrawn from commercial circulation, that is their absolute right and represents an understanding of societal change, not cancelation but consideration.
Consideration of texts for school theatre is essential as well. Just because educators have always loved a show from their youth doesn’t necessarily make it the best choice for today or for their target audience. By the same token, a flight to safety will not serve either, because theatre is indeed a place where hard issues should be on the table, but only when properly contextualized for those putting on the performance and those who are intended to see it.
It serves no one to have shows shut down. Before a show is announced or auditions held, work must be chosen in the very best interest of the students, with the goal of a fair and equal society, work which does not demean but educates and even lifts up. When it comes to how works of prior eras are perceived today by their students, even teachers may have to be carefully taught.
If one looks around the website of The Neil Simon Festival, a yearly theatre event held in Cedar City, Utah, there’s a list of donors to the company. On that list are seven entries at the $100+ level. But the list is perhaps some 30 short, because that’s the approximate number of unlisted individuals who sent $150 to the Festival last year.
While the $150 sent by those people isn’t described by the Festival as a donation, it effectively is one for all but a single person. The $150 figure is derived from the submission fee playwrights are asked to provide as their entry fee to the Festival’s New Play Contest, now in its ninth year. While the Festival notes that every submission receives a written evaluation as part of the company’s response, it is not a fee for service. Playwrights are not offered the opportunity to submit and not receive an evaluation.
Richard Bugg, founder and executive producer of the Festival, said in a call with Arts Integrity that the $150 submission fee was new as of last year, markedly increased from their prior figure. He said it has had the effect of decreasing the submissions, from nearly 100 scripts to somewhere in the 30s. The deadline for the 2019 contest is 11:59 pm on February 1, so there is not yet a final count for this year.
Asked about the fee, which is notably high compared to other play competitions and workshop programs, Bugg explained that the fee is waived for any college or university that chooses and submits a single selection, though he said that none had done so. The Festival’s website states:
The entry fee is used in three areas: a) to help defray the cost of travel and lodging for the playwright, b) payment to our contest readers for their professional expertise, and c) contest administration (photocopying, advertising, etc. but not salary).
Bugg specifically said that the fee helps to underwrite payment to Douglas Hill, who reviews most of the scripts and writes the critiques. Bugg said that Hill is, “magnificent in looking at the structure of scripts and making suggestions.” The payment also helps to pay other reviewers engaged by Hill as needed. Bugg said he also reads all of the finalists’ scripts.
Hill also spoke to the effect of the submission fee, in an e-mail response to questions from Arts Integrity. “We have received as many as 120 submissions in some years, and as few as 20 in other years,” he wrote. “Unfortunately since the contest is less than 10 years old, and with the recent changes to the contest, it’s a little difficult to provide you with a good approximate number.
“We use it to some degree to weed out,” said Bugg. “We get a higher degree of script that way.” However, Bugg allowed that perhaps some worthy scripts might not be submitted due to the expense.
The season at The Neil Simon Festival, an independent not-for-profit organization, is short, only three weeks this coming year, with two shows a day five days a week, and with most actors performing in multiple roles akin to classic repertory format. The winner of the new play contest first receives a six-day staged reading in the year in which it is selected, and is then produced, for three performances, during the subsequent season. In 2019, that play will be I Left My Dignity in My Other Purse by Shelley Chester.
Asked whether the Festival was familiar with Dramatists Guild guidelines regarding play festivals and contests, Bugg said that he was not. Ralph Sevush, Executive Director for Business Affairs of the Guild, when informed of the $150 submission fee, provided the following guidance from the Guild’s best practices guidance:
BEST PRACTICE: The organization does not require a submission fee. Furthermore, the organization imposes no other obligation on the author or encumbrance on the work (e.g., ticket sales, participation fees, technical rentals, hiring fees, marketing, or other selling obligations), except for do-it-yourself (“DIY”) productions.The Guild has long disapproved of excessive submission fees, which not only undermine the benefit of any “award” or “royalty,” but also impose financial hardship on the author. Any other authorial obligations should be clearly noted up front; this is particularly true for DIY and similar festivals that require authors to self-produce their works.
Regarding payments to the authors when their winning works are performed, Bugg said that there were none. The playwright receives transportation and housing during both visits. Bugg explained, “There’s no royalties. Just being in the season is reward in our eyes.” Bugg did make clear that other playwrights in the Festival, including the Simon estate, are paid royalties.
The Neil Simon Festival, now in its 17th year, is admittedly a small company, operating on a budget of roughly $300,000 per Bugg. While Hill wrote, “We’re probably best defined as a professional non-Equity company,” that assertion is undermined by a casting notice from the Festival. The notice stipulates availability from June 3 to July 29 in Cedar City and 4-5 weeks of subsequent performance in Park City and Ivins, also in Utah. Regarding compensation, the website says only that, “Housing is provided along with a modest stipend.” Bugg noted that while he and several of the other leaders of the company are members of Actors Equity and do perform in the Festival, “We don’t do contracts for ourselves.”
That the Neil Simon Festival operates a new play contest in which playwrights are asked to pay a fee far above the typical competition, that the selected playwright receives no royalty for their work being presented to a paying public, and that actors are essentially volunteering for an entire summer’s engagement stand as three red flags about the company. These simply are not prevailing industry standards. Professionals are paid for their work.
That the company leadership – Bugg, Hill, and artistic director Peter Sham – all teach at the university level (Bugg and Sham at Southern Utah University and Hill at University of Nevada Las Vegas) also raises questions about the professional standards they are imparting to their students, separate from their Neil Simon duties. The encouragement to “work” for little or no pay runs contrary to the practices and expectations that should be instilled in aspiring artists. The suggestion that playwrights of new plays should be rewarded simply by virtue of being produced undermines the perceived value of authors’ creations. Actors shouldn’t be grateful for a place to sleep, petty cash, and stage time. High submission fees emphasize economic disparity among artists, making it possible only for those of means to enter competitions that require a significant outlay (very possibly diminishing the range and caliber of submissions and the program in the process).
When the clock strikes midnight on February 2, the Neil Simon Festival’s Play Contest entry period will close. But hopefully with some serious thinking resulting from outside scrutiny, the leadership of the company will rethink the economic model under which they function and the messages they communicate through their operating model. Perhaps they can use it to leverage more funding, locally or nationally. Because however great the experience may be for those involved, exorbitant fees for contest entrants and free labor by actors don’t add up a professional experience. It ends up costing the artists to be involved, even as audiences pay in order to see that work. And that’s no laughing matter.
This summer, when an attorney for actor James Franco sent New York’s People’s Improv Theatre a cease and desist letter regarding the venue’s planned presentation of the play James Franco and Me, PIT’s response was to cancel the booking. At the time, Kevin Broccoli, author and performer of JF and Me had no legal representation, and so the stories that emerged were that Franco had successfully shut down the production, as highlighted in numerous media outlets, including The New York Times and Rolling Stone.
Among the organizations that stepped in to assist Broccoli were the Arts Integrity Initiative and the Dramatists Legal Defense Fund, and in August, DLDF secured the pro bono services of the law firm Davis Wright Tremaine to represent Broccoli in an effort to insure his play could be seen. Yesterday, DWT responded in writing to Thomas Collier, the attorney at Sloane, Offer, Weber and Stern, who had sent the original cease and desist, asserting that it was without foundation and that Broccoli may present the play and companies may produce it under the protections offered by the First Amendment.
In a statement to Arts Integrity, Broccoli said, “I’m truly amazed at the amount of support my play has received since July when this story broke. I’m very grateful to Davis Wright Tremaine, especially Nicolas Jampol and Kathleen Cullinan, who have been working tirelessly, and to Dramatists Legal Defense, who helped connect me with them. Right now it appears that there’s an opportunity to do the play at several theaters across the county, including New York, and that’s really been my goal from the beginning.”
Jampol’s letter to Collier asks for a response within two weeks. The full text, with all legal citations and footnotes, appears below. It makes for fascinating reading and important information for playwrights.
* * *
We represent playwright Kevin Broccoli in connection with your client James Franco’s attempt to pressure theatrical venues into cancelling performances of Mr. Broccoli’s play James Franco and Me (the “Play”). In particular, we write in response to your July 7, 2017 cease-and- desist letter to the People’s Improv Theater, which resulted in the cancellation of several performances of the Play.
For the reasons explained below, we are confident that your client does not have any valid claim in connection with the Play. Contrary to the assertions in your letter, the First Amendment provides playwrights and other creators of expressive works – including both your client and Mr. Broccoli – with robust protection against the claims you threatened. Put simply, Mr. Broccoli does not need Mr. Franco’s permission to perform the Play, and will perform the Play as he desires. Mr. Broccoli also reserves the right to take legal action if your client continues to interfere with his contractual relationships with theatrical venues.
The Play
In the Play, a character named Kevin – which is based upon, and typically played by, Mr. Broccoli – sits in a hospital waiting room while his father is dying. The “James Franco” character stays with Kevin during the agony and tedium of awaiting a loved one’s fate in a lonely and impersonal waiting room. Their wide-ranging discussion tackles numerous topics like art, passion, sexual identity, and death, while engaging in a critical exploration of Mr. Franco’s films and television projects, including 127 Hours, Spring Breakers, Pineapple Express, Rise of the Planet of the Apes, General Hospital, Spiderman, Oz the Great and Powerful, and This Is the End, among others.
In addition to exploring Mr. Franco’s works, the Play parodies the public perception of Mr. Franco as a passionate, eccentric actor and artist who fully invests himself in his work. In one scene, for example, the “James Franco” character describes how he emotionally cut off his arm in preparation for his role as Aron Ralston in 127 Hours. In other scenes, the character vehemently disclaims any interest in money, highlighting Mr. Franco’s perception as someone who is not simply interested in pursuing projects for maximum financial gain – he believes in the art, and strives for something more than wealth creation.
Apart from examining Mr. Franco’s career and public perception, the Play also uses the “James Franco” character as a vehicle to explore Mr. Broccoli’s own feelings about life, death, his career, and his relationship with his father against the looming sense of mortality in the hospital waiting room. As one review explained, “this play becomes a kind of meta commentary on life, celebrity, loss, failure and friendship.”1
While not relevant to whether Mr. Franco could establish a valid claim against Mr. Broccoli in connection with the Play, the fact is that Mr. Broccoli is a long-time admirer of Mr. Franco and his work, and the portrayal is overwhelmingly positive. The Play specifically refers to Mr. Franco as “one of the most spontaneous and unique performers of his generation,” and explains that if Mr. Franco “stands for anything, it’s artistic simplicity.”
Mr. Franco Has No Viable Right-of-Publicity Claim
The First Amendment protects Mr. Broccoli from any right-of-publicity or misappropriation claim in connection with the “James Franco” character in the Play. Under well-established law, celebrities simply do not enjoy absolute control over the use of their name and likeness, particularly in an expressive context, such as a play.2 Mr. Franco has benefited from this principle in numerous of his works with characters that were based on, or inspired by, real people and events.
In Sarver v. Chartier, 813 F.3d 891, 896 (9th Cir. 2016), for example, an Army sergeant brought right-of-publicity claims against the producers of the film The Hurt Locker, which featured a fictional character that the plaintiff contended was based on him. In affirming the dismissal of the claims, the court explained that “The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.” Id. at 905. Almost four decades earlier, in Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 862 (1979), Rudolph Valentino’s nephew sued over a television movie titled Legend of Valentino: A Romantic Fiction, a fictionalized version of his uncle’s life. In rejecting the claim, Chief Justice Bird wrote for the majority of the court in a now-widely-cited concurrence3 explaining that the First Amendment protected the film against plaintiff’s cause of action for misappropriation of Valentino’s name and likeness:
Contemporary events, symbols and people are regularly used in fictional works. Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality. The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment. Surely, the range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction. Id. at 869.4
Without these critical protections, content creators would be required to obtain approval from any real person – or such person’s estate – depicted in a television series, motion picture, or theatrical production, which would allow them to veto controversial or unflattering portrayals. This would place a significant restriction on the marketplace of ideas and would have prevented the production of acclaimed films such as Spotlight, The Social Network, and Selma. As mentioned above, Mr. Franco himself is no stranger to depicting real individuals, including in Milk, Lovelace, and Spring Breakers, among many others.
Mr. Broccoli uses the “James Franco” character to comment on Mr. Franco’s career and public perception, while using it as a vehicle to explore Mr. Broccoli’s feelings about his own life and work, among other topics. In other words, in addition to dealing with a matter in the public interest – Mr. Franco and his career – the Play uses the character to enable Mr. Broccoli to “more persuasively, or more accurately, express [himself].” Guglielmi, 24 Cal. 3d at 869. See also Comedy III Productions, 25 Cal. 4th at 397 (explaining that “because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression”). As a result, the Play enjoys broad protection under the First Amendment and against any potential right-of-publicity claim that Mr. Franco might assert.5
Mr. Franco Has No Viable Trademark-Infringement Claim
The Lanham Act and state trademark law do not exist to imbue trademark owners and celebrities with the unrestricted power to prevent the unauthorized use of their marks or names in expressive works. Instead, trademark law is “is intended to protect the ability of consumers to distinguish among competing producers, not to prevent all unauthorized uses” of a mark. Utah Lighthouse Ministry v. Found. for Apologetic Info., 527 F.3d 1045, 1052 (10th Cir. 2008). Based on the Play, no reasonable viewer would be confused into thinking that Mr. Franco had sponsored or approved the Play – in fact, the Play makes clear that the “James Franco” character is a fictionalized version of Mr. Franco, and there is absolutely nothing in the Play that suggests or implies that Mr. Franco himself had any involvement in the Play. The implausibility of consumer confusion would bar any trademark-infringement claim here.
Even if Mr. Franco could somehow establish the elements of a Lanham Act claim, it would still fail because the Play is an expressive work entitled to full First Amendment protection. When a Lanham Act claim targets the unauthorized use of a mark in an expressive work, the traditional likelihood-of-confusion test does not apply because it “fails to account for the full weight of the public’s interest in free expression.” Mattel v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002). Instead, such claims must pass the Rogers test, which bars any Lanham Act claim arising from an expressive work unless the use of the mark “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). The Rogers test is highly protective of expression, and has since become the constitutional threshold for Lanham Act claims arising from the unauthorized use of marks within expressive works.6
The first prong of the Rogers test is satisfied if the alleged mark as any artistic relevance to the underlying work. See Rogers, 875 F.2d at 999. Courts have interpreted this requirement to mean that “the level of artistic relevance of the trademark or other identifying material to the work merely must be above zero.” Brown v. Electronic Arts, Inc., 724 F.3d 1235, 1243 (9th Cir. 2013) (brackets omitted). The second prong of the Rogers test is satisfied unless the defendant’s work makes an “overt claim” or “explicit indication” that the plaintiff endorsed or was directly involved with the work. Rogers, 875 F.2d at 1001 (“The title ‘Ginger and Fred’ contains no explicit indication that Rogers endorsed the film or had a role in producing it”). This requirement of an “overt claim” applies even where consumers mistakenly believe there is some connection between the mark owner and the expressive work. See, e.g., ETW, 332 F.3d at 937 n.19 (finding that a painting of Tiger Woods did not expressly mislead consumers despite survey evidence that sixty-two percent of respondents believed the golfer had “an affiliation or connection” with the painting “or that he has given his approval or has sponsored it”).7
Because the Play is an expressive work entitled to full First Amendment protection, the Rogers test would apply to any trademark claim Mr. Franco might bring. It is beyond dispute that Mr. Franco’s name is artistically relevant to a play that examines his career and public persona. Moreover, the Play does not make any explicit claim that Mr. Franco endorsed or was affiliated with the Play. To the contrary, Mr. Broccoli made clear in press interviews that the “James Franco” role would be played by different actors – not Mr. Franco8 – and never made any statement or suggestion that Mr. Franco sponsored or was otherwise involved with the Play. Accordingly, because the Rogers test is easily satisfied, the First Amendment bars any trademark-infringement claim by Mr. Franco.9
Mr. Franco Must Cease Interfering with the Exhibition of the Play
We request that Mr. Franco stop interfering with Mr. Broccoli’s right to exhibit the Play, and Mr. Broccoli expressly reserves his right to pursue a claim for such interference. Despite the fact that he can rightfully exhibit the Play without Mr. Franco’s permission, Mr. Broccoli is still an admirer of Mr. Franco, and is willing to engage in dialogue with him or his representatives regarding any specific objections he has to the Play or whether any particular disclaimer would alleviate Mr. Franco’s concerns. Like Mr. Franco, Mr. Broccoli is dedicated to his artistic craft, and despite his legal right to exhibit the Play without Mr. Franco’s permission, he would prefer to focus his time and energy on the Play, and not this dispute.
2 As one court explained in affirming the dismissal of a right-of-publicity claim arising from a film, “[t]he industry custom of obtaining ‘clearance’ establishes nothing, other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.” Polydoros v. Twentieth Century Fox, 67 Cal. App. 4th 318, 326 (1997).
3See Comedy III Productions v. Gary Saderup, 25 Cal. 4th 387, 396 n.7 (2001) (recognizing that Chief Justice Bird’s concurrence “commanded the support of the majority of the court”).
4 Chief Justice Bird also explained that it would be “illogical” if the First Amendment allowed the defendants to exhibit the film, but prohibit them from using Valentino’s name in advertising for the film. Id. at 873. See also Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 325 (1997) (holding that the use of the plaintiff’s name and likeness in a film was not an actionable violation of the right of publicity, and thus “the use of his identity in advertisements for the film is similarly not actionable”).
5 The transformative-use defense would provide another layer of constitutional protection against a right-of-publicity claim because Mr. Franco’s likeness is “one of the ‘raw materials’ from which an original work is synthesized,” and his “likeness is so transformed that it has become primarily the defendant’s own expression.” See Winter v. DC Comics, 30 Cal. 4th 881, 888 (2003).
6See, e.g., Cliffs Notes v. Bantam Doubleday Dell, 886 F.2d 490, 495 (2d Cir. 1989) (holding that “the Rogers balancing approach is generally applicable to Lanham Act claims against works of artistic expression”); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 n.11 (6th Cir. 2003) (explaining that the Rogers test is “generally applicable to all cases involving literary or artistic works where the defendant has articulated a colorable claim that the use of a celebrity’s identity is protected by the First Amendment”); E.S.S. Entm’t 2000 v. Rock Star Videos, 547 F.3d 1095, 1099 (9th Cir. 2008) (“Although [the Rogers test] traditionally applies to uses of a trademark in the title of an artistic work, there is no principled reason why it ought not also apply to the use of a trademark in the body of the work.”); Univ. of Alabama v. New Life Art, 683 F.3d 1266, 1278 (11th Circ. 2012) (expressing “no hesitation in joining our sister courts by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark,” and applying Rogers to “paintings, prints, and calendars”).
7 Similarly, the Rogers court found that the defendants did not expressly mislead despite evidence that “some members of the public would draw the incorrect inference that Rogers had some involvement with the film.” 875 F.2d at 1001. The court explained that any “risk of misunderstanding, not engendered by any overt claim in the title, is so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.” Id.
9 Any unfair-competition claim would fail for the same reasons as a right-of-publicity or trademark-infringement claim. See, e.g., Kirby v. Sega of America, 144 Cal. App. 4th 47, 61-62 (2006) (where First Amendment barred plaintiff’s misappropriation and Lanham Act claims, it also barred her unfair-competition claim).
It is unlikely that many people in the theatre are unaware of the controversy that arose in mid-May, when a small Portland, Oregon theatre company proposed a production of Edward Albee’s Who’s Afraid of Virginia Woolf? with a black actor in the role of Nick. Outcry built swiftly after Michael Streeter of the Shoebox Theatre posted the following message to Facebook:
“I am furious and dumbfounded. The Edward Albee Estate needs to join the 21st Century. I cast a black actor in Who’s Afraid of Virginia Woolf? The Albee Estate called and said I need to fire the black actor and replace him with a white one. I refused, of course. They have withheld the rights.”
This touched off a tidal wave of conversation, debate and anger over the actions of the Albee estate, with many decrying the late playwright, who had been well known to exert significant control over all productions of his plays during his lifetime, as racist. That charge was leveled at the representatives of the estate as well, since they were sustaining what were understood to be Albee’s wishes.
So it was rather surprising when, just a couple of weeks ago, the Pulse Theatre Chicago opened their own production of Virginia Woolf, with black actors as George and Martha and white actors as Nick and Honey. This seemed to contradict the prevailing takeaway from the Shoebox controversy.
Upon learning of the production via a review by Kerry Reid in The Chicago Tribune, Arts Integrity contacted Sam Rudy, the spokesman for the Albee estate, to ask about how this production had been allowed to go forward when the Shoebox production had not been able to, unless they had recast with a white actor as Nick.
In response, Rudy shared a statement from Jonathan Lomma of WME, Albee’s agent and now agent for the estate. It read:
“Regarding your inquiry, the Albee Estate gave Chicago’s Pulse Theatre Edward’s own script edits that the playwright thought could be useful when George and Martha are portrayed by actors of color, as they are in the current Chicago production.
Those approved edits by Edward himself were used in an all African-American production of Woolf at Howard University several years ago.
While it has been established that non-Caucasian actors in different combinations have played all the roles in the play at various times with Edward’s approval, he was consistently wary of directors attempting to use his work to provide their own commentary by, for instance, casting only Nick as non-white, which essentially transforms George and Martha into older white racists, which is not what Edward’s play is about.”
The edits suggested by Albee primarily consist of a word or short phrase, 13 in all, mostly adjusting references to hair and eye color. The most significant change is a brief section in the Act 2 “begin and water” monologue.
In conversation, Lomma drew attention to a particular speech of George’s, which Albee felt was completely transformed, in a profoundly negative way, were it to be spoken by an older white man to a younger black man:
“All imbalances will be corrected, sifted out… We will have a race of men…test-tube bred…incubator born…superb and sublime… Everyone will tend to be rather the same… Alike. Everyone…and I’m sure I’m not wrong here…will tend to look like this young man here… I suspect we will not have much music, much painting, but we will have a civilization of men, smooth, blond and right at the light-heavyweight limit… diversity will no longer be the goal. Cultures and races will eventually vanish…the ants will take over the world…. And I am, naturally, rather opposed to all this.”
The Zachary Scott Theatre Center production of Edward Albee’s “Who’s Afraid of Virginia Woolf?”
The Howard University Virginia Woolf
As Lomma noted, there had been productions of Virginia Woolf cast with black actors during Albee’s lifetime. When the Shoebox controversy arose, many people pointed to a production at the Oregon Shakespeare Festival in 2002 in which Andrea Frye, a black actress, played Martha with white actors in the others role. Less noted was a 2003 production at the Zachary Scott Theatre Center in Austin, again with a black actress, Franchelle Stewart Dorn, as Martha in an otherwise white ensemble.
While in May the estate was not able to provide much detail about these productions, a college production at Howard University, while mentioned in passing at the time and cited in Lomma’s statement, is evidence that Albee was not doctrinaire about race in the play.
Vera Katz, the first white theatre professor at the historically black Howard University, planned a production of Virginia Woolf as her final show before retiring in 2001. She reached out to Albee and he visited the show while it was in rehearsals, and offered suggested changes to the text that would make minor changes appropriate for an all-black production.
In June of this year, Michon Boston wrote on her Eclectique 916 site about the Howard University production, which she said was the first time she had seen the play staged. She reached out to Vera Katz to ask about Katz’s experience of producing the play, given the controversy that had just flared.
She received the following response from Katz, which Boston said Katz specifically asked her to share:
“My delay to responding to this debate is because my husband is critically ill.
In 2001, I had the audacity to contact Mr. Albee by writing him a letter in long hand and sending it through his agent. What I asked Mr. Albee in the letter was to adjust two specific changes to his play, “Who’s Afraid of Virginia Woolf” for a performance by an African American student cast at Howard University.
These changes were:
1) The mysterious baby we never see referred to as a “blond blue-eyed child”;
2) The university names in which George has lectured and taught.
My husband said “You’ll never hear from him.”
To my surprise, Edward Albee responded by calling me. He immediately agreed to discuss the changes asking me to get my script and reviewed them with me over the phone. The “blue-eyed” child became “the dark dusky child”, and the university names became HBCUs – Howard, Fisk, Wilberforce, etc.
Mr. Albee expressed his desire to visit Howard and talk with the young actors. When he arrived he insisted on shaking every actor’s hand and gave a brilliant lecture about the play.
He was extremely interested in a tour of the campus. During the tour he was very knowledgeable of persons the dormitories and buildings were named for — Mary McLeod Bethune, Dr. Charles Drew, Frederick Douglass, Harriet Tubman, and Ira Aldridge. For me, he seemed to want to expand his awareness of the Black experience during this visit.
Albee stood for a long time in front of a portrait of Ira Aldridge (actor). He talked about the importance of Ira Aldridge to the theater.
Mr. Albee said he was unable to attend the performance of “Who’s Afraid of Virginia Woolf” because his play “The Goat or Who Is Sylvia?” was in production.
We thanked him by mentioning his visit in the program at Howard and sent him a copy (of the program).
Boston concluded her post by noting that Katz was working on a book in which she would go into more detail about her interactions with Albee and the Howard University Virginia Woolf.
Kate Robison and Adam Zaininger as Nick and Honey in Edward Albee’s “Who’s Afraid of Virginia Woolf?” at Pulse Theatre Chicago (photo by Joe Mazza)
Professional vs. Non-Professional Productions
Following a phone conversation earlier this week with Arts Integrity, Chris Jackson, Producing Artistic Director of the Pulse Theatre Chicago and director of their Virginia Woolf, shared a statement explaining how they secured the rights for the show, having already explained that the company had no difficulty with its plans. He wrote:
“Pulse Theatre Chicago is a 501 (c)(3) non for profit, non-equity professional theatre company. We rent spaces across the city when we decide to mount each production. We do not have an artistic home and we work on a very low budget, mostly out of pocket. All of our artists are paid a small stipend after the run of the show. Because of those factors, Dramatist [Dramatists Play Service] informed us that we only qualify to the non-professional rights to the production, which in regards to casting, only requires that the gender of the characters may not be changed from the intended.
“To my knowledge, the estate only had an issue with the interracial casting of the couple of Nick and Honey, which is understandable because in my opinion that casting choice disrupts the central theme of The American Dream being unachievable. I don’t think the estate is complete restrictive of actors of color being cast in Albee plays. If they were, we wouldn’t be talking! As far as I know, the estate approved our production. The only communication I have received from the estate about this production specifically came from them through Dramatist. They sent, opening night, the revisions that Albee made for the Howard University production of the show.”
In conversation, Jackson noted that he had secured rights to Virginia Woolf more than a year ago, while Albee was still alive.
As it happens, the licensing rights for Virginia Woolf are slightly complicated, compared to many plays. Dramatists Play Service handles the non-professional rights, while Samuel French handles professional rights, resulting in part from the fact the DPS didn’t begin handling professional rights until the early 1980s. Lomma continues to handle “first class rights,” which include Broadway, national tours and the West End.
So while Pulse is a professional non-Equity company, for the definitions that exist between DPS and French, their production was deemed non-professional. While Shoebox is comparably small, they appear to have been defined as professional for the purposes of licensing.
Following a conversation with Arts Integrity, and responding to questions about the process of licensing Albee’s work, Peter Hagan, President of DPS, sent the following e-mail:
“Our Albee nonprofessional licenses essentially mirror our boilerplate licenses for our other plays. The language simply says – as our other licenses do – that the play must be performed as written by the author, with no changes, etc. As you know, Mr. Albee was very specific about how casting changes could affect the authenticity of what he had written. Our license form for the Albee plays is actually quite old – so old, in fact, that it includes Albee’s prohibition against performing the play before a segregated audience!
As I told you, we do not represent the professional rights to some of the Albee plays, including Who’s Afraid of Virginia Woolf? For all of those Albee plays for which we do represent the professional rights, there is a stipulation that the director, actors, set, costumes and rehearsal schedule must be approved by the Estate of Edward Albee before a license is granted, as was the case when Mr. Albee was alive. As you know, he took a very hands-on approach to the professional productions of all of his plays.
As for our distinction between what is considered a professional production and what is considered nonprofessional, when actors are paid $150 per week or more for their work, we consider that a professional production, whether it is Equity or non-Equity. Samuel French has a different policy, so you should check with them about that.”
Asked about how Samuel French handles the stipulations on Albee plays that French represents, the company’s executive director Bruce Lazarus said that, for all shows they license, “On professional productions, if requested by an author, we submit any information that is requested to the author’s agent. We support a playwright’s right to approve casting to be sure it reflects their authorial intent.”
Albee famously denied all requests to allow for productions of Virginia Woolf with entirely male casts.
* * *
Sophie Okonedo and Damian Lewis in the 2017 West End production of Edward Albee’s The Goat, or Who is Sylvia? (photo by Johann Persson)
In the wave of controversy over the Shoebox production that never was, a debate flourished over the rights of authors, and subsequently their estates, to exert control over the way in which plays are produced, beyond even the specific of Edward Albee’s requirements. It extended to the question of how long copyright protection runs and whether estates, by following the express wishes of an author too slavishly following their death, may be sustaining outdated thinking, be it in how texts are examined or how society has evolved since the play debuted.
Arts Integrity has written many times in the past in support of artists rights and the right of their estates, based in the legal protections afforded to authors in the theatre, which differs from film and television (and cases where a play may be sold for adaptation into those media). Arts Integrity also advocates for inclusive casting, and opening traditionally, and in some cases roles that were explicitly thought of as, white to performers of color.
It bears noting that Edward Albee passed away less than a year ago. While many chafed against the degree to which he controlled his works during his lifetime, and indeed may disagree with his feelings about the casting of Nick in relation to the rest of the company, it is not necessarily realistic to expect the people to whom he entrusted his estate to immediately abandon his wishes within months of his passing. That said, it is not unrealistic to imagine that the estate’s thinking will evolve, especially as current trustees of the estate will eventually give way to successors in future years, given the term of copyright.
For now, the creative elements of Albee’s plays in professional production, including directors and casts, will continue to be reviewed and approved by the agent for the estate, Lomma, and trustees of the estate, as submitted to them by DPS and French. However Lomma indicated that, save specifically for Nick in Virginia Woolf being cast as black with the others characters as white, there is no hard and fast proscription against artists of color taking on roles in the plays. Sophie Okonedo’s role in a recent West End production of The Goat, a role played on Broadway by Mercedes Ruehl and then Sally Field, is evidence that’s the case.
However, all parties represented in this article made the point of saying that the sooner producers engage in conversation about their interest in Albee’s plays, and their plans for them, the less likely it is that issues will arise.
In contrast to the impression left in May, Jonathan Lomma said, on behalf of the estate, “In Edward’s almost 30 plays, virtually all of the roles can and should be done in a diverse, color conscious fashion.”
Those who have followed the career of James Franco, and at times it has almost been hard to avoid, are aware that the actor had a period where he was a perpetual student, described in 2008 in Vanity Fair as displaying a “pan disciplinary omnivorousness.” He has a bachelor’s degree in English from UCLA, did graduate studies at Columbia, NYU Tisch, Yale and Brooklyn College, and has lectured at the UCLA School of Film, Television and Theater. Since English, writing and other creative endeavors were part of his studies, presumably along the way he might have learned a few things about the First Amendment, copyright law and the fair use provisions.
But whether this was a gap in all of Franco’s study, or whether it occurred while he was allegedly asleep in class (Franco denies that charge, on the basis of it being a bonus lecture), the creative dynamo and education addict seems to have had no qualms about shutting down a Cranston RI-born show, James Franco and Me, when it dared to book a short August run in New York at the People’s Improv Theatre (PIT). Multiple media outlets, attuned to covering Franco in his many ventures, briefly reported the creative censorship in July, including Salon and The New York Times.
Some reports at the time suggested that the play, by and starring Kevin Broccoli, was about Franco. Broccoli disputes that claims, saying, “In the show, it is stated that he’s fictional. It’s even suggested he might be an imaginary friend. Nothing that he says in the show is a direct quote of his. There are no quotes from any of his movies. As far as I know, nothing that ‘he’ talks about in the show actually happened in real life.”
Kevin Broccoli
“But the show is highly autobiographical on my end. So the really bizarre thing about this, for me, is it really does feel like someone’s not allowing me to tell my own story, because they want to prevent me from just using some celebrity’s name in something.”
It is well established that parodies of people are permitting under the fair use provisions of copyright law, though to be accurate Broccoli wasn’t parodying a written work, but rather playing with the persona of a public figure. Whether or not the show was funny or serious is irrelevant, since parody need not serve only comic purposes. Broccoli asserts that he has taken nothing specific from the public record of Franco’s life, only the idea of James Franco, public figure.
The cease and desist letter, from attorney Thomas B. Collier of Sloane, Offer, Weber and Stern was sent not to Broccoli, but rather to PIT, prompting them to cancel the James Franco and Me booking out of concern of being subjected to legal action. It claims, in part, Franco’s right of publicity, as well as asserting trademark violation and unfair business practice according to California Business and Professions Code Section 17200 and California Civil Code Section 3344, which the letter quotes as follows:
“Any person who knowingly uses another’s name, voice, signature, photograph or likeness on or in products, merchandise or goods for the purposes of advertising or selling or soliciting purchases of products… shall be liable for any damages sustained by the person or persons injured as a result thereof.”
The New York statutes regarding right of publicity can be found here.
But Epic Theatre Company, Broccoli’s Rhode Island based troupe, never employed Franco’s voice, signature, or likeness (a local publication created an image juxtaposing Franco and Broccoli’s faces), and even if it did use his name, it wasn’t to sell a commercial product as meant by the statutes invoked. Artistic use falls within the First Amendment, which Mr. Collier omits, presumably to frighten PIT and through them, Broccoli and Epic. The letter, incidentally, concludes by asserting that it is itself a copyrighted legal communication, and therefore can’t be published in whole or part. More scare tactics.
With the threat of such action hanging over the show, Broccoli said he has been unable, to date, to secure an alternate venue. In fact, even when he remounts the show for a single performance this Saturday back in Rhode Island, he is excising Franco and calling the show __________and Me, because he can’t afford to defend himself from actions by Franco and his attorneys. He likens the show he’ll now perform, as a benefit for the ACLU, it to the internet parody “Garfield Without Garfield.”
What has taken place here is that James Franco and Me has been shut down because Kevin Broccoli and his company don’t have the financial wherewithal to battle a celebrity with considerably greater resources. His first amendment rights have been trampled because he isn’t wealthy enough to fight back, and so his play, at least in its original form, is silenced.
The situation recalls that faced by David Adjmi’s 3C, a dark parody of the television series Three’s Company, which was kept out of production following its premiere at Rattlestick Theatre by a specious claim from the rights holders to the original series, who claimed that, among other things, it would damage their opportunities for commercial exploitation of the then-35 year old sitcom in the live theatrical marketplace. In that case, Adjmi could not afford to fight the case alone, but was supported by the law firm of Davis Wright Tremaine and by the Dramatists Guild and Dramatists Legal Defense Fund. The court ultimately ruled in favor of Adjmi and the play, which is now receiving productions – including, coincidentally, one last month at Epic Theatre.
Arts Integrity contacted Bruce E.H. Johnson, a partner at Davis Wright Tremaine to ask his thoughts about the cease and desist letter sent to the PIT in regards to James Franco and Me.
“In my opinion, this claim is bogus,” wrote Johnson, in response to e-mailed questions, which included inquiries as to whether “right of publicity” laws come into play in this case. “The right of publicity applies only to advertising and commercial use; it does not apply to a play, which is absolutely protected by the First Amendment.”
Johnson continued, “Any advertisements for a First Amendment product, like a play, are also protected by the same First Amendment principles. From Steven G. Brody and Bruce E.H. Johnson, Advertising and Commercial Speech: A First Amendment Guide at 2-30 (2d ed. 2017): ‘The courts normally afford full First Amendment protection to advertising promoting speech in books, movies, and other fully protected media.’ And the fact that ‘tickets are being sold’ to the play doesn’t make it a commercial product. This First Amendment principle was affirmed by the US Supreme Court in New York Times v. Sullivan (1964), finding absolute First Amendment protection: ‘That The Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold’.”
In Johnson’s assessment, “I can’t think of any situation where a celebrity sued for a fictional portrayal in a play. Given the absolute First Amendment protection here, such a lawsuit would be immediately tossed out.” Broccoli notes that the New York Musical Festival was advertising a show entitled Matthew McConaughey and The Devil as part of their 2017 season. Woody Harrelson is also a character in the show.
It is particularly worth noting that James Franco and Me is not even the first theatrical piece to prominently invoke Franco. In Chicago, The Gift Theatre presented Under The Gun Theater’s Dear James Franco, an improvised evening of reading celebrity letters in 201, which was reviewed in Chicago outlets, including The Reader. Promotional copy in the Goldstar website read, in part, “Though the night is being called Dear James Franco, the letters are not necessarily written by or to the Pineapple Express actor, but judging by the hilarity of previously published open letters to Franco (as seen in Slate, Gawker and more), it sure wouldn’t hurt.”
But in the meantime, without the means to defend himself or his play, Kevin Broccoli is being – because he’s taking a creative approach in response to censorship he’s not equipped to fight – partially silenced. Perhaps someone or some firm with the legal resources and expertise will step up to challenge Franco, Collier, and his firm, because every time a groundless cease and desist is allowed to curtail the creativity of artists, the whole field suffers.
Of course, Mr. Franco is even a fan of performance art, and given his proclivity for perpetual learning, perhaps he can get a quick law degree and defend Kevin Broccoli from James Franco. That would be justice indeed.
If you happen to be going to see the current production Stephen Adly Guirgis’s The Last Days of Judas Iscariot at the Shelton Theater in San Francisco the next ten days, you’ll find an insert in the program that declares, “The play you are seeing tonight has been improperly and extensively cut & edited. These edits were made without permission, against the wishes of the playwright, and in violation of Federal Copyright Law.” There’s a red, stencil-like image, similar to an old rubber stamp, declaring “WARNING” across the text.
You might think this is some sort of joke, some meta-theatrical twist, but it’s not. At least the message about copyright violations isn’t.
Director Richard Ciccarone, in a director’s note, talks about his rationale in approaching the play:
“For me, a play is a living document that should transform from production to production. It is something the author bestows upon the public as a gift to be shared and theatre remains the greatest interpretive art the human race has developed. I say this because it is my fervent belief that as a director, an actor, a designer, a producer, a stage manager, a board operator, and an audience member, we are all taking the work of one artist and reinterpreting it into our own separate experiences. The play may not be what the author intended in his original vision, but as a work of art. I believe it is our duty to interpret and not simply repeat, to participate, not just transmit, and by doing so become a collaborators [sic] in the work.”
What this statement doesn’t admit is that he has done something more than approaching the play in a way that is something other than the author’s original vision, which may be open to certain interpretation. He has cut the text, taking a two hour play down to about 80 minutes. This was done without the author’s permission or the knowledge of the licensing house, Dramatists Play Service (DPS). It is a violation of the authors copyright, and Guirgis had every right to shut the show down.
Remarkably, he did not, showing the same desire to not be punitive to a small company and for actors to not lose work that prompted him to allow a production of The Motherfucker With The Hat to continue at Theatreworks in Hartford, Connecticut in 2011. In that case, key Latinx roles had been cast with white actors, with no auditions held for those roles.
Informed of the Shelton Theater situation by DPS, Guirgis sent a letter to Matt Shelton, the theatre’s founder, listed as Actor/Director/Producer on the company’s website, and Richard Ciccarone, about the situation. It read, in part:
“I do not wish to shut you down. And yet – it is not acceptable what you have done. You guys are not students. Matt, you have been producing theater for 25 years – and you know DAMN WELL cutting my script in half violates Federal copyright laws…”
He then asks them to create inserts with the language that appears in the first paragraph, closing with:
“Put in the inserts. Or close the play. Your choice. Either way – please send my love and thanks to the rest of the cast. And my thanks to both of you as well.
Hail Caesar, baby!”
As the situation became widely public on Facebook, Guirgis wrote more about it in a playwrights group there, and he is quoted here with permission:
“But now I see they put a stupid WARNING thing over the statement i asked them include — and it looks more like marketing (oh, warning! something “taboo”) — rather than an admission of fault on their part. THANK YOU for sharing this photo. I’ve written to them again. Te [sic] truth is the guy who runs the theater seems like an asshole. And he was unapologetic about doing what they did. I don’t like the idea of shutting down artists, but, if they don’t get rid of that stupid warning, then i will….
Lastly – people fuck with the words and alter our scripts all the time and it should never happen. And the excuse they gave me for cutting the script was NOT for creative reasons, but because of time & budget constraints, and that’s no excuse for either. Anyway, thank you for your attention to this matter. It sucks. For all of us.
Guirgis told Arts Integrity that the theatre has stopped responding to his calls, and he has resorted to sending them messages via Facebook, with no response. He also pointed out an image for the show that he found on Ciccarone’s Facebook, which may be fan art but includes dates and prices, but which failed to even credit him as the author.
He further wrote to Arts Integrity, when approving use of his Facebook statements, “You know, LAB was a small theatre (and is again). I got no heart to shut the SF people down, but if I have to, I will.”
“The fact is,” Guirgis continued, “this happens all the time. Lack of respect for the written word in plays starts in schools where teachers regularly ask students to cut monologues or scenes, or they direct plays with students in them and the cut at will. So we are taught that the actual text is not sacrosanct. And that’s fucked, ya know?”
This situation with the play has become known only a week and a half prior to the production’s closing, and it began performances in late June. So audiences who have seen the production prior to the program insert’s appearance may think they have seen Guirgis’s play, but they haven’t. They have seen a chopped up summary of the play, created according the whims of Richard Ciccarone, Matt Shelton and the Shelton Theatre. Those audiences have been lied to. Illegally.
As of now, if the “warning stamp,” that Guirgis sees as sarcasm in response to his instructions, isn’t quickly removed, it’s possible that the last days of Judas Iscariot at the Shelton may come even sooner than planned. The theatre’s lack of response to Guirgis – there has also been no response to Arts Integrity’s own e-mail inquiry, with the theatre’s voicemail message box full and not accepting messages – doesn’t bode well. Guirgis has offered the production a lifeline, but in their scofflaw arrogance, they are once again doing it their way, not according the author’s wishes. They may soon learn an expensive lesson, and it will be interesting to learn how quickly they’ll be able to license any plays in the future if this is how they choose to treat playwrights and texts.
Update, August 5, 2017, 11 am: Matt Shelton responded, via Facebook, to Stephen Adly Guirgis at approximately 2 am eastern time (11 pm San Francisco time) regarding the nature of how the program insert has been handled and other questions that have been raised by so many about the Shelton Theater production. It reads:
“Please understand that I’m not on Facebook and don’t have a feed only phone and such. I’m just now getting wind of all this. I did apologize sincerely to your agent and to our Dramatists Play Service representative. I really appreciated your letter and felt it was as sincere as I was. The insert was changed appropriately. I’m not sure why everyone has their pitch forks out. But I did apologize for adapting your Play and am sincerely regretful that it has hurt you and others and I am sorry for this. Please contact me via e-mail and/or phone. I am happy to fly out and discuss this with you as gentleman [sic].”
Guirgis also shared one of Shelton’s original e-mail communications to Dramatists Play Service, after questions were raised about the production, which read, in total:
We actually couldn’t open until the 29th of June. We’ve done 15 shows. We hope to close August 12th for a total of 21 shows. This produciton [sic] though low attendance has been very well received. We have been producing theater for 25 years as a small independent theater and took liberties with the play for the reasons stated in the directors attached letter. No harm was intended to anyone or any community. We continue to try to bring beauty to the world and appreciate your efforts in allowing us this opportunity.
Additionally, Guirgis shared Richard Ciccarone’s letter to him, which over three pages detailed every change and edit. The introductory portion of the letter read, in part:
I am writing today first to apologize for any harm I may have committed in the production of your work The Last Days of Judas Iscariot, and second, to explain my reasons as requested in your letter….
As far as my methods to bring this work to light, I am guilty of reducing the script so that, for economic reasons only, we could present it to our audience. We are a small theater, seating 74 people, which often depends on programming two shows an evening in order to break even. We also did not have the resources to fully cast this production within our budget. These were the foremost reasons that I had to make the cuts that I did, as difficult as that was….
The decisions that I made were not the result of artistic solipsism, but so that our theater could present a work of true genius within our limitations. I hope and beg that you let us present the balance of our run with the understanding that we will never do anything like this again.
Shelton Theater has, as of this update, still not responded to Arts Integrity’s request for an interview.
“The Last Days of Judas Iscariot” at the Shelton Theater.
Update, August 5, 8:30 pm: Stephen Adly Guirgis has informed Arts Integrity that, on the advice of multiple counselors, he has authorized Dramatists Play Service to send a cease and desist letter to the Shelton Theater requiring them to suspend any further performances by the company of their production of The Last Days of Judas Iscariot, as a result of their violation of copyright law and the licensing agreement. The company has already removed all mention of the show from their Facebook page and website.
Update, August 5, 9:30 pm: Stephen Adly Guirgis posted the following message to Facebook at 9:10 pm: “We are shutting down the Shelton Theater production of Judas. They’ve been served a Cease & Desist order. I really wish it didn’t have to be this way. But they did it to themselves. Don’t violate federal copyright law. And if you get caught — don’t be glib. There are no winners here. My apologies to the actors. And THANK YOU to all for the support.”
Update, August 5, 11:30 pm: Stephen Adly Guirgis has made one final Facebook post on this situation. It reads:
LAST JUDAS UPDATE: Matt Shelton & I have corresponded. I have no hard feelings. Neither does he. The show has been closed & we move forward with respect. No enemies. No bad guys. Shit happens. We are all theater people here. Many freaks — but one tribe. Room to grow. Room to learn. Room to forgive. If you’re in San Fran — support the Shelton Theater. The fight’s over — so no need to choose sides. Forgive them. Forgive me. THANK YOU.
Update, August 22, 7 pm: In response to an editorial, offered as a report, by John Wilkins on KQED, Dramatists Guild executive director for business affairs Ralph Sevush wrote an extended response regarding copyright. It read, in part:
“You describe all the wonderful ways theater companies have, or might have, reinterpreted the work of Arthur Miller, Albee and Guirgis, and have decided they are necessary to “loosen things up.” And that “fidelity is a wan virtue.” Again, you offer assumptions and opinions dressed up as facts. Regardless of your metaphysical views on the nature of fidelity, the fact is that many authors do agree that their work should be freely reinterpreted and they give theaters great latitude in revising their work. I’ve seen recent productions of Mr. Miller’s plays on Broadway that would probably set Arthur’s hair on fire, but the estate does give latitude to new interpretations. On the other hand, some authors and estates do not. Are they wrong for keeping their works “musty”? Perhaps, but they are allowed to be “wrong and foolish”… or is that a right you only reserve to producers and directors? In any event, authors do not get to hold the reigns tightly forever… just ask Bill Shakespeare.”
This week, Stephen Sondheim and John Weidman’s 1990 musical Assassins will have its first major New York performances since the 2004 Roundabout Theatre Company production*, in a concert version as part of City Center Encores!’s Off-Center series. Given the controversy sparked last month by The Public Theater’s Julius Caesar, in which Caesar and his wife were portrayed as analogues of Donald and Melania Trump, prompting the withdrawal of sponsors, sparking disruptions of performances and precipitating threats against the production, the theatre, the artists and the staff, it seemed an appropriate moment to speak with Weidman about how Assassins has been perceived over the past 26 years and how the newest incarnation might be received. Weidman, a former president of The Dramatists Guild, currently serves as president of the Dramatists Legal Defense Fund, founded to, according to the organization’s website, “advocate, educate and provide a new resource in defense of the First Amendment.” This interview has been edited and condensed for clarity.
Howard Sherman: Given the state of discourse about public expression, given what happened with Julius Caesar in Central Park, it seems that putting up this show at this moment carries not necessarily more weight than other times, but that people may bring some other baggage to it in a different way they might have at other times. Back in 1991, it did not move to Broadway, the reason given being it wasn’t the right time, it was the first Gulf War, etc. Then there was the first planned Roundabout production, coming right after 9/11, when you and Steve and others felt it was not the right time to do the show. So is there ever a right time or ever a wrong time to do Assassins?
Stephen Sondheim and John Weidman
John Weidman: I don’t think there’s ever a wrong time to do it. I think the reception of the first production was honestly more a function of the fact that people did not know what to expect when they came into to theater. They were not prepared for the shock value of the opening number, which was a deliberate choice on our part to kind of knock the audience off balance. I think that, 25 years ago, even though there had been many adventurous musicals that had been done, some people simply assumed that the musical theater was not an appropriate place in which to tackle material that was this fundamentally serious. I think we’re well past that assumption at this point, given the kind of musicals that have been written in the last 25 years.
When the show was scheduled to be done at the Roundabout, and when we decided to delay the production after 9/11, that wasn’t a good time to do Assassins. But it wasn’t because we thought people would find the show problematic, that they would resent a show about presidential assassins in that sudden new political moment. In order to engage an audience, given the way the show’s designed and the way it’s written, it requires an audience which is, frankly, prepared to laugh in certain places, to take the humor on board. That’s part of the roller coaster ride of the show. We all felt that at that time, it was unfair to ask an audience which was grieving to come into a theater and to engage this kind of material in a way that was intermittently humorous. The show in that context simply wouldn’t work. And If it wasn’t going to work, it made sense to delay the production.
As far as now goes? When the show first opened, we had a conservative Republican in the White House, and then for eight years we had a centrist Democrat in the White House, and then for eight years we had a conservative Republican in the White House, and then we had a centrist Democrat who was black, and now we’ve got this guy. The show’s been performed continuously over the course of those 25 years in all kinds of different political and socioeconomic contexts. This is just a different one.
That said, people will obviously come into the theater from a different place, because the world outside the theater is a different place. Which will affect the way in which the members of the audience take the show on board.
But I don’t think it makes it a particularly good or bad time to do Assassins. Personally, I think it’s always a good time to do the show, because the show is meant to be provocative, and hopefully people will walk out of the theater talking about it, that it will provoke the kinds of conversations that Steve and I hoped it would provoke when we wrote it. That should happen now the way it’s happened with previous productions. They may be different conversations, but that’s what I would hope would happen.
Sherman: Have you and Steve made any changes in the show since it was last seen in New York, since the 2004 Roundabout production?
Weidman: No. The text of the show that’s going to be performed at City Center is exactly the same as the text which was performed at the Roundabout. And the text at the Roundabout was exactly the same as the text that was performed at Playwrights Horizons with the exception of “Something Just Broke,” the song which we added in London. The show’s really been what it’s been since it was first performed 25 years ago.
The 2017 Yale Repertory Theatre production of “Assassins” (photo by Carol Rosegg)
Sherman: Assassins was performed this spring at Yale Rep. Was there a difference in response to the show than for previous productions?
Weidman: You know, I was curious to see if there would be a difference in the way in which the show was received after the last election, and Yale was the first significant production that was available to me. I didn’t feel, sitting in the audience, as if there was any kind of shift that I was aware of in terms of the way in which the audience was connecting to the material.
Sherman: Speaking to you both as an author of the piece, and also in your role with the Dramatists Legal Defense Fund, it’s fair to say that there was some very heightened conversation, and actions around the Julius Caesar, admittedly by people who didn’t see it, didn’t take the time to understand it or understand its context. In the wake of that, are you concerned at all about how, not even the audience, but how people external to the audience might choose to speak about this piece?
Weidman: The word you used was concerned. I’m not in any way worried about it. At the same time, I’m sensitive to the possibility that in this current political climate, there will be people who will react to the idea of a musical about the people who tried to attack the President, that they will react to that in a way which is similar to the way in which some people reacted to the show in 1991, when they hadn’t seen it and weren’t going to see it. They simply knew what the show was about, and they had a problem with that. That happened then and that could conceivably happen now.
I do think that we’ve had 25 years in which this show’s been performed a lot everywhere, and so people have a better idea of what the show’s ambitions are and what its intentions are. I’ve got Google alerts set on my computer to Assassins, because I’m always curious to see how the show’s being received. The reviews tend to be really good, which is always nice, but the main thing is people writing about the show all over the country, in a variety of different kinds of publications, seem to understand what Steve and I were intending. That’s really reassuring. People get the show. They can like any show, they can like it a lot or not like it a lot. But they seem to understand what we were doing, and I assume that that will be the case this time around as well.
Sherman: In reading some of the press about the prior productions and some of the commentary, one of the ways in which the show is described is that it’s about, and I’m not quoting here, I’m paraphrasing, it’s about an America that causes people who feel they have no voice to take extreme actions. As we look at politics today, there are those who say that where we are is about people who felt they were disenfranchised from the political system, and that has brought us to the real polarization that we’re at now. Might that affect people’s perceptions?
Weidman: As Steve and I started to talk about this material 25 years ago, I realized at a certain point very early on that what drew me to the material was an attempt to explain something to myself which I had not understood since I was 17 years old when Kennedy was shot. The Kennedy assassination was my first real experience of loss and it was devastating to me. Two of my friends and I got together and we went down to D.C. and stood on the sidewalk as the funeral cortege went by, and all the subsequent attempts to try make sense of what happened — conspiracy theories. Was it the Cubans, was it the CIA, the FBI? It all seemed like, on some level, a waste of time to me. The fundamental question was: how could so much grief and pain be caused by one angry little man in a t-shirt with a rifle in Texas?
When Steve and I started to talk about these other personalities who had articulated a variety of wildly different motives for attacking the President, we said, ‘Well if we gather them together and look at them as a group’ – something which had not been done much, even by academics – ‘would some common grievance, some common complaint beyond what they articulated begin to emerge? And if it did, that would be a useful thing to write about.’ That is at the heart of what the piece explores. The people who, with one or two exceptions, picked up guns did tend to be, when you look at them as a group, people who were operating on the margins, the fringes of what we would consider a mainstream American experience.
In the last election, a lot of people who you and I would have identified as operating on the margins of a mainstream middle-class American experience, cast their votes in a particular way and elected a particular guy President. That does seem to suggest a different way of looking at the characters on stage in the show. I’m not quite sure what the change is. I’m not quite sure what it means in terms of how one observes their behavior and listens to what they have to say. But we are in a different political moment, and that moment will undoubtedly have an impact on how the audience responds to the piece.
I do think it will probably make for conversations on the way out of the theater which will be different from the conversations people might have had five years ago or ten years ago. I’m not sure if any of that’s clear. If it’s not, it’s because it’s something I’m still working through in my own head.
The 2004 Roundabout Theatre Company production of “Assassins” (photo by Joan Marcus)
Sherman: Given that the run is sold out, if there is conversation about why this show at this time, and if people choose to try to politicize it, is there something you would like them to know beyond the simplistic plot descriptions of a marketing brochure or a PR release about the show?
Weidman: I have always felt that that it’s essential with this show that it be allowed to speak for itself. It obviously can only speak to the audience that’s in the building, but that’s true of any theater piece. You know, somebody can describe to you what Hamlet means, but if that’s all it took to appreciate Hamlet, then you wouldn’t have to waste time listening to Shakespeare’s language for three and a half hours. I think you need to experience the piece itself, and I think that’s true of this piece. That said, Assassins is an exploration of where these vicious acts came from, in an attempt to get a better handle on how to prevent them from happening again in the future.
Sherman: Speaking to your role with the Dramatists Legal Defense Fund: is there any sense that there has been a change in people wanting to assert their own prerogative over what happens on stage? Has that changed in the past six to eight months? Does DLDF have more concerns now than in the past, or is it just consistent with the kinds of challenges that you’ve faced?
Weidman: I’m not aware of any kind of seismic shift, in terms of what people are either attempting to repress or ways in which people are self-censoring, although it would be hard to know about the second one. It may be the decisions at the high school level, it may the decisions at the amateur level, but also at the stock level, that people are making more cautious decisions in terms of what they think a school board or parent body or a subscriber base is going to be comfortable with. It’s entirely possible that they are shying away from things which they think are likely to be controversial. I would obviously hope not, because this seems to me a period when it’s important for controversial material to be produced and to become part of the national conversation.
When DLDF gave an award last year to Jeffrey Seller, and Lin-Manuel Miranda, and Thomas Kail, and the cast of Hamilton for the speech that was made from the stage when Mike Pence was in the audience, I wrote the citation and I handed the award to Jeffrey. The point I wanted to make most forcefully was that Mike Pence apparently had stood there and listened and that was fine, but the President-elect the next morning had not only castigated the cast for being rude, but he had instructed them to apologize. I said if censors tell artists what they’re not allowed to say – here we have someone going beyond that, instructing artists what they’re required to say. The latter is a genuinely frightening prospect, and I wouldn’t have thought five years ago that it was something we had to be concerned about, but I think we all feel like we’re living in a new world where anything is possible and nothing is surprising.
* There was a one-night reunion concert of the 2012 cast, held as a benefit for Roundabout.
Does anyone remember last summer’s TheTaming of the Shrew in Central Park? It opened with an entirely non-Shakespearean beauty pageant and talent show, led by a buffoonish figure costumed to look very much like a billionaire presidential candidate who has owned, and exploited, beauty pageants of his own. Coming in a production in which the entire cast was women, in a play that is widely considered to be misogynist in our era, it was a broad parody, a buffoonish portrayal of a political figure who had yet to consolidate his electoral power. But there was no mistaking that this was meant to be Donald J. Trump.
Now Trump is president and, by all accounts, he is once again on stage at The Public Theater’s Delacorte Theater—or rather Julius Caesar is on stage costumed to evoke the now-president, complete with a fashionable spouse who reportedly speaks in an Eastern European accent. Because Caesar is – as we all know – killed, the layering of present day politics in America over a 400-year old play (set even centuries) earlier is being said by some to have crossed a line. Lumped together with Kathy Griffin’s less classically oriented gory political theatre in which she posed with a bloody head, strongly implied to be that of the president, The Public’s Caesar quickly became a target for such media outlets as Breitbart and Fox News, even drawing a certain Donald Jr. into Twitter commentary.
“I wonder how much of this ‘art’ is funded by taxpayers?,” tweeted the presidential scion. “Serious question, when does ‘art’ become political speech & does that change things?” A Fox News tweet, headlined “NYC Play Appears to Depict Assassination of @POTUS,” was appended.
The tweet itself, for those inclined to look at such things analytically, undermined itself with its intellectual flabbiness. There is no hard line between art and politics, no absolute moment when one becomes the other. The Public Theater is hardly a stranger to melding the two, with shows ranging from Hair in the 1960s to Hamilton in 2015. It staged David Hare’s Stuff Happens and Tony Kushner’s The Intelligent Homosexual’s Guide. Always socially minded, it is at least as outspoken as ever under the leadership of Oskar Eustis, the proud and vocal product of a left-wing youth. Indeed, there has been very little at The Public during Eustis’s tenure that hasn’t been easy to examine through a political prism.
Yesterday, when pressure from Breitbart, from Fox, from the Trump family, reached a point when it may have seemed to them politically, corporately, and publicly untenable from a perceptual angle to underwrite (with many others) the production, Delta Airlines disavowed The Public, pulling their support from the theatre entirely. Bank of America followed suit, but somewhat more guardedly, only pulling their support of Caesar itself. In doing so, they gave the production – for which tickets are free – vastly more attention than it had already received. Even as theatre die-hards were focused on The Tony Awards, the story of the Trump-like Caesar exploded in the media.
In statements and tweets, Delta stuck to a singular sentiment:
No matter what your political stance may be, the graphic staging of Julius Caesar at this summer’s Free Shakespeare in the Park does not reflect Delta Air Lines’ values. Their artistic and creative direction crossed the line on the standards of good taste. We have notified them of our decision to end our sponsorship as the official airline of The Public Theater effective immediately.
Bank of America stated:
Bank of America supports arts programs worldwide, including an 11-year partnership with The Public Theater and Shakespeare in the Park. The Public Theater chose to present Julius Caesar in such a way that was intended to provoke and offend. Had this intention been made known to us, we would have decided not to sponsor it. We are withdrawing our funding for this production.
In a report for Deadline, Jeremy Gerard noted that the airline’s support fell in the $100,000 to $499,000 category of sponsorship; airline arts support typically takes the form of vouchers for flights or a bank of so much value that can be used to acquire tickets, though it’s possible that there was cash involved. Certainly, that’s the likely case with Bank of America, which like many corporations has philanthropic arms, though in recent years corporate philanthropy has become inextricably linked with marketing and public relations.
Does The Public have the absolute right to stage the works it chooses and in the manner it sees fit? Yes, it certainly does. It is an independent not-for-profit organization, and what it chooses to produce, to share with audiences, is entirely the responsibility of the staff and, by extension, the board of directors. Does it have an absolute right to sponsorship or donations from any particular organizations? No. That is the result of fundraising, of a cost benefit analysis on the part of any potential sponsor or donor. If they like the work, the mission, the initiatives, of The Public – or any arts organization – individuals, government sources, foundations and corporations may choose to support it.
But there’s no mistaking the actions of Delta and Bank of America as anything but political acts as well, cloaked in the guise of corporate sensitivity. While they have not said exactly what line has been crossed by Caesar, it doesn’t seem that it’s about blood or even gore. Shakespeare is filled with violence and its results, though typically in service of a larger message. But with their decision to publicly pull funding, and even sever a long relationship in the case of Delta, these corporations are saying to those who take offense at an obviously fictional portrayal of Julius Caesar as a Trump stand-in that they don’t countenance such things, that they are shocked, shocked to find politics on stage at The Public, even a mock assassination, and don’t want to be a part of it.
As a number of sources online have noted, Delta’s outrage seems rather selective. In 2012, The Guthrie Theatre and The Acting Company staged and toured a Julius Caesar with a slim black actor being “murdered” in the Senate as Caesar, midway through the Obama presidency. Some critics remarked on the parallel to the then-president, but Delta’s sponsorship there was unruffled. Why was the death of one presidential doppelganger OK while another crossed a line? I suspect the corporate PR department of Delta is unlikely to answer that question.
By pulling their support, have Delta and Bank of America censored Caesar and The Public? Are any First Amendment rights being trampled? On an absolute level – no. Media commentary cuts both ways. The participation of a member of the governing family, however, which has blended the personal and the political in countless ways, is the kernel of official censorship. Yet the show goes on (although it ends its brief run this week) and, so far as any reports have indicated, neither company attempted to get the production altered to make it more palatable to their tastes. Indeed, it’s unclear whether either company has had any representatives see Caesar in the park, or have made their decision, cloaked behind corporate statement, based solely on the media coverage.
Will there be a backlash to the actions of these companies? Will those who support The Public and free expression in the arts now make their feelings known to these companies, and others that might jump on the bandwagon? It’s very likely. It’s also possible that those who support these decisions will affirm it as well. People will refuse to fly Delta and keep their money with Bank of America, even as others will opt in to the carrier and the financial institution. Beyond merely expressing support and dissent, the era of dueling boycotts is probably upon us. Delta and B of A may find they have become the preferred outlets for the right and even the alt-right. By making this choice in their support, and withholding of support, of the arts, they have become politically-tinged corporations, aligned with a certain point of view.
The true danger here is that supporters of the arts will begin to interrogate possible beneficiaries of their intent for each and every undertaking, keeping funds from organizations and initiatives that might be aligning themselves politically by making any comment, right or left, Republican or Democrat, liberal or conservative. After all B of A judges that the production set out to “provoke and offend.” No doubt Eustis wanted to provoke, that’s his stock in trade. But offend? That’s less clear.
Will the fear of media backlash force organizations to choose between commenting in any manner through their work on what the prevailing issues of the day may be and gaining public or private funds to do their work? Could this be the harbinger of a forced conservatism in the arts, because so many companies cannot survive without the infusion of donated funds?
It’s worth noting that the National Endowment for the Arts felt it necessary to make clear it had not supported The Public’s Julius Caesar:
The National Endowment for the Arts makes grants to nonprofit organizations for specific projects. In the past, the New York Shakespeare Festival has received project-based NEA grants to support performances of Shakespeare in the Park by the Public Theater. However, no NEA funds have been awarded to support this summer’s Shakespeare in the Park production of Julius Caesar and there are no NEA funds supporting the New York State Council on the Arts’ grant to Public Theater or its performances.
The issue evolving with Caesar in Central Park is the canary in the coal mine, and an emblem of the potentially Faustian bargain one strikes when asking for major donations. Fortunately, The Public can sustain itself even with hundreds of thousands of dollars of lost support, but they are among the largest of theatres in the country. Indeed, they may take a page from the political playbook and raise new funds off of this action against their work. But smaller companies might not be so well positioned, resulting in a flight to safer work to avoid what has just happened. Strangely enough, it is the commercial theatre, which relies solely on ticket sales for revenue, which may be in the safer position to make political statements, as was the case with the cast of Hamilton sharing thoughts with Mike Pence. Their contract is directly with the audience, and if the work finds partisans for partisan messages, then the shows will run.
Vastly more people will hear about the Trumpian Caesar than can possibly see it. They will form opinions based on media accounts, and they can and will debate whether it’s right or wrong, proper or improper, wise or foolish to stage a show in which a presidential stand-in in killed, even in the context of a classic work, taught in many high schools, where few will be surprised by the emperor’s untimely end. But the actions of Delta and B of A, especially at a time when the administration in Washington has expressed a desire to shutter both the National Endowments for the Arts and Humanities, risk being the first steps in a new cultural McCarthyism. That serves no one who believes in free expression, whatever they have to say, no matter how ugly or difficult what they have to express may be to hear, no matter what their politics may be. Everyone should be concerned.
UPDATE: June 12, 2017, 5:30 pm: The Public Theater released a statement this afternoon in response to the controversy surrounding Julius Caesar. It reads, in full:
We stand completely behind our production of Julius Caesar. We recognize that our interpretation of the play has provoked heated discussion; audiences, sponsors and supporters have expressed varying viewpoints and opinions. Such discussion is exactly the goal of our civically-engaged theater; this discourse is the basis of a healthy democracy. Our production of Julius Caesar in no way advocates violence towards anyone. Shakespeare’s play, and our production, make the opposite point: those who attempt to defend democracy by undemocratic means pay a terrible price and destroy the very thing they are fighting to save. For over 400 years, Shakespeare’s play has told this story and we are proud to be telling it again in Central Park.
UPDATE: June 12, 2017, 7:00 pm: The Dramatists Legal Defense Fund has issued a statement of support for The Public Theater. It reads, in part:
Good taste is a matter of opinion and an “intention to provoke” may be an integral part of a play’s mission. The works of Shakespeare are replete with representations of regicide, and potentially objectionable and graphic violence of all sorts, but Delta doesn’t appear to have had a problem with the “values” or “taste” of such depictions before. The fact is that, for hundreds of years, this particular play has been understood to be a critique of political violence, not an endorsement of it. As director Oskar Eustis explained, “Julius Caesar can be read as a warning parable to those who try to fight for democracy by undemocratic means. To fight the tyrant does not mean imitating him.” So those criticizing this production for endorsing violence against President Trump seem to be willfully misinterpreting it, for their own political ends.
UPDATE: June 13, 2017, 8 am: From Oskar Eustis’s remarks before the opening night performance of Julius Caesar on June 12:
Julius Caesar warns about what happens when you try to preserve democracy by non-democratic means and again, spoiler alert, it doesn’t end up too good. But at the same time, one of the dangers that is unleashed by that is the danger of a large crowd of people manipulated by their emotions, taken over by leaders who urge them to do things that not only are against their interest, but destroy the very institutions that are there to serve and protect them. This warning is a warning that is in this show and we’re really happy to be playing that story for you tonight.
What I also want to say, and in this I speak, I am proud to say for The Public Theater past, present and I hope future, for the staff of The Public Theater, for the crews at The Public Theater, for the board of directors of the Public Theater, for Patrick Willingham and myself, when I say that we are here to uphold the Public’s mission, and The Public’s mission is to say that the culture belongs to everybody, needs to belong to everybody, to say that art has something to say about the great civic issues of our time and to say that like drama, democracy depends on the conflict of different points of view. Nobody owns the truth. We all own the culture.
If you happen to have been giving any thought to producing Langston Hughes’s 1935 play Mulatto at the Ames Center in Burnsville MN, save yourself some time and either move on to another play or another venue. Why? Because the Ames Center is uncomfortable with the word “mulatto,” and won’t approve it in the title of an offering in their building. Hughes’s stature, and the fact that the Black Repertory Group in Berkeley play produced the show as recently as 2015, probably wouldn’t make any difference.
How do we know this, since the scenario above is hypothetical, in addition to being awfully specific? Because the city-owned Ames Center recently vetoed a production of the play Caucasian-Aggressive Pandas and Other Mulatto Tales, by biracial actor and playwright Derek “Duck” Washington, to be produced by the Ames Center’s resident theatre company, the Chameleon Theatre Circle. The Center cited “mulatto” as the problem, saying they would only allow the play to be done if the word was removed from the title. Caucasian-Aggressive Pandas had already been a hit at the Minnesota Fringe Festival in 2016, after first being produced locally in 2015. That it is Washington’s exploration of his own heritage and his relationship to a relatively archaic racial term, one which is admittedly at its root derogatory in nature, was no defense as far as the Center was concerned. Washington refused to alter the title.
Partly as a result of the dispute over Washington’s play, but with other factors at play as well, Chameleon, a 19-year-old professional non-Equity company which has been a tenant in the Ames Center’s black box theatre since it opened in 2009, will not be renewing their relationship with the venue. Chameleon is currently seeking a new home base in the greater Minneapolis area. The future life for Caucasian Aggressive Pandas is uncertain.
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Multiple dictionary definitions of “mulatto” designate it as both a dated and offensive word, which specifically denotes someone who is the child of one white parent and one black parent. While The Atlantic headlined an article “Mulatto is not a cool word” in 2016, they did so in writing about a website and video series entitled “Evoking The Mulatto”, which describes itself as “examining black mixed identity in the 21st century, through the lens of the history of racial classification in the United States.” At the same time, some worry about the ongoing trope of “the tragic mulatto,” explored by many sources, including The Root back in 2011. It is not as loaded as the n-word, but it’s not a word to be thrown about thoughtlessly.
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Kirsten Wade, Matthew Kessen, Derek “Duck” Washington, Suzanne Victoria Cross and Ted Femrite in “Caucasian Aggressive Pandas and Other Mulatto Tales” (Photo by Bob Alberti)
The dispute over the play came to light when, after several months of negotiations between Chameleon and the Ames Center for their year to year contract, told Washington for certain in mid-March that the play would not be permitted to go forward without a title change. Washington had previously informed Scott Gilbert, chair for season selection for the company, that he would not change it.
Both G.J. Clayburn, Chameleon’s board chair, who represented the company in negotiations, and Brian Luther, executive director of the Ames Center, which is operated by the company VenuWorks for the city of Burnsville, agreed that part of the annual contract renewal between the companies includes the submission of titles. Luther described this process as a matter of insuring that at least 50% of the titles in the Chameleon season would, he said, “have the opportunity to sell tickets,” referencing the need for a “balanced season.” Neither Luther nor Clayburn cited any contractual language that permitted the Ames Center to simply veto work over title or content so long as this threshold was met.
In response to the final decision, Washington decided to send an open letter to Luther at the Ames Center, as well as to the mayor, the city manager and the city council. It read in part:
I was really excited by the proposal to bring the show to Burnsville as I had so many people come up to me after performances or throughout the Fringe Festival telling me they wished I could bring the show out of the city to their home towns in the suburbs. They felt it would be very valuable to their communities and that this tale of race would have a positive impact on their residents regardless of their demographic background. This made Burnsville an optimal place to launch the show after two successful runs in Minneapolis…
I’m told that members of the city took concern with the word “mulatto” being in the play’s title. Mulatto is a word that represents someone that is the offspring of a white parent and a black parent. It is deemed by many to be a derogatory word, as its origins stem from a Spanish or Portuguese work for mule, which is the cross between a horse and a donkey. The show does not ignore the word’s derogatory origins and in fact addresses them in the first few minutes of the show. In a large way discussing those origins is a lot of what the show is about. As a person who is both black and white it is a word I still hear even if it isn’t quite as present in the modern vernacular. I put a lot of thought behind this word when writing this show. Could I have changed it “Mixed Race Tales”? Possibly, but it is a show specifically about my experiences of being both black and white. I felt like saying “Mixed Race Tales’ included a much larger subset of people whose experiences may or may not have represented my own….
So when I was asked by the city if I would change the title, I said no. Not only did it not make sense for the show, it also meant it would be difficult to leverage the show’s previous success operating under that title. Before the Fringe I did have one or two people express concern about the word which I believe I was able to lessen with a few sentences of conversation.
It should be noted that all parties acknowledge that Washington had no direct communication with any city officials. He spoke with Scott Gilbert, who spoke with the company’s executive producer Andrew Troth and with Clayburn, and Clayburn spoke with Luther at the Ames Center. Did Luther communicate with city officials about the show’s title? In an e-mail to Arts Integrity, Luther wrote, “Ames Center staff handles all show and performance decisions. However, if questions arise that may impact the City more generally, we make sure City representatives are aware. The decision regarding this show was ours, but the City supported that decision.”
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Derek “Duck” Washington in his play “Caucasian-Aggressive Panda and Other Mulatto Tales” (Photo by Bob Alberti)
As noted above, no one could cite contractual language which gave the Ames Center approval of titles due to the nature of of their content, only that a certain number would be perceived as generally marketable. In confirming that, Luther wrote, “There was no intention to censor the show, or stop it from being performed. The only concern was with the use of an offensive term in the title. Being our facility is owned by a public entity, we need to be mindful of what goes up on our marquees, in our publications, displays, etc. It is a reflection of the entire City. As you can imagine, it’s a challenge to balance the rights of members of our community (who may not wish to be subjected to language they find offensive), with artistic license. We made what we thought was the most appropriate decision for our facility.”
Despite his assertion that there was no intention to censor, that’s precisely what the Ames Center did. Indeed, as the property of a government entity, which did not stipulate conditions under which Chameleon would not be permitted produce a show beyond specific sales concerns for a portion of their season, their apparently successful effort to quash the work since they could not alter it is an act of suppression of speech.
It would be interesting to know what the Center or the City might make of Branden Jacobs-Jenkins An Octoroon, a critically acclaimed, widely produced work that utilizes another archaic and derogatory term for a mixed race individual. Even with their right to determine what’s marketable, the only programming caveat in the contract, Ames would be hard pressed to say that it’s not a popular title right now. As it happens, Chameleon performed The Vagina Monologues the year before they moved to the Ames Center. Would Luther and his staff have been similarly cautious about putting that title on his marquee? Clearly some people have taken exception to the term for a woman’s genitalia being made part of everyday parlance in the way that show most certainly has done.
Both Clayburn and Washington mentioned that earlier this year, a performance by the comedian Ralphie May at the Ames Center had been controversial, with Washington specifically noting that the local Native American community had been upset over some portion of its content; no one cited the specific material to which objection was taken. But one performance should not cause the Ames Center to retreat into safety. In the case of Caucasian-Aggressive Pandas, there was the opportunity, with plenty of advance time, to contextualize the work, rather than suppressing the voice of a mixed race artist whose very work, based in his own experience, was grappling with the implications of the word he chose to use in his title. A performing arts center afraid of work and discussions about race is an arts venue out of step with creative and social conversations that pervade the country.
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Andrew Troth, executive producer of Chameleon Theatre Circle, in an e-mail, wrote that Chameleon won’t have a singular venue for their next season and that, “Nobody knows right now what Chameleon’s situation will be after that.” He explained that Pandas is not currently scheduled as part of their upcoming season because of their vagabond status. “Part of the appeal if co-producing [Pandas] with us,” he wrote, “was the opportunity to present it outside of Minneapolis, where he has already had two successful runs of the show. Having walked away from our resident status in the Ames Center, and given the absence of alternate venues in close proximity, it is not clear that we will be able to offer that benefit in the future.”
He went on to write:
I will say this much on a personal basis: I find nothing to contradict or disagree with in Duck’s public letter. I consider him a friend, I admire his work, I was excited to include his show in Chameleon’s intended season, and I utterly disagree with the decision by management at Ames and the City to disallow it. It is my view that in deciding to move our productions elsewhere, Chameleon has exercised the only leverage available to us in response to the Ames Center’s multiple points of disagreement with our season plan.
Certainly Chameleon has stood up for their rights to produce work they feel is worthy, and will now struggle through the process of finding a new home for their work to insure its creative integrity in the future. But in the meantime, Duck Washington’s opportunity to reach new audiences with Caucasian-Aggressive Pandas and Other Mulatto Tales is on hold, as a result of the Ames Center’s effort to avoid giving offense to anyone. In doing so, they censored the work; they wouldn’t permit it on their small stage or on their signage, because avoidance was simpler than engaging with the work and supporting the artist and his collaborators.
The Ames Center may be a beautiful facility, but it has demonstrated that it is one without a core commitment to all manner of arts, only those which are broadly popular and anodyne. That doesn’t serve the arts nor does it serve their community. Because they imposed their will without benefit of a contractual agreement to permit such oversight, they have violated the free speech rights of Washington and of the Chameleon company. What will they deprive Burnsville of next?
Update, May 4, 2017: Chameleon Theatre Circle today announced their dice-show 2017-18 season, which will be produced in a number of venues in the greater Minneapolis area following, their break with the Ames Center in Burnsville MN. The season will conclude, as originally planned, with Caucasian-Aggressive Panda and Other Mulatto Tales by Duck Washington, directed by Jena Young, in the Black Box Theatre at the Bloomington Center for the Arts in Bloomington MN. The new home for Pandas is less than ten miles away from the censorious Ames Center.
Correction, April 5, 2017: Andrew Troth was originally referred to as artistic director of Chameleon. His correct title now appears above.
