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.

While the phrase “public domain” may hold little meaning for you (or make your eyes glaze over), January 1, 2019 will mark a significant milestone in that seemingly arcane distinction. That’s because at the beginning of the new year, creative works will once again begin to enter the public domain – that is to say that they will no longer be subject to copyright protection or restrictions – for the first time in 20 years.

Why the gap? Because in 1998 Congress enacted an extension on copyright protection (named for entertainer and congressman Sonny Bono, who fought for such legislation). So while works from 1922 have been in the public domain for two decades, it is only now that 1923 works move out of copyright. This means they can be produced, adapted, copied as anyone sees fit. If you’ve always wanted to create a radical modern retelling of Felix Salten’s Bambi, it’s all yours – provided you don’t accidentally incorporate elements which were unique to the Disney animated film, because those bits belong to Disney and they’re likely to vigorously protect their intellectual property.

While there have been various articles and web essays about what enters the public domain imminently, they have tended to concentrate on books, movies and songs – for example, you will no longer have to pay for the rights to “Yes, We Have No Bananas” going forward, should you be inclined to use it. You’ll also be able set Robert Frost’s “Stopping By The Woods On A Snowy Evening” to a hip-hop track and not owe his estate a dime.

When it comes to theatre, the most notable work – and it has been noted elsewhere – that will come into the public domain is George Bernard Shaw’s Saint Joan. That means if Manhattan Theatre Club had just waited a year to produce the play, they would have saved, assuming a 6% author’s royalty, about $125,000 on their production. That said, Shaw’s Saint Joan is just one of many versions of the story, so keep your hands off everything from Jean Anouilh’s The Lark and Jane Anderson’s very recent Mother of the Maid.

This prompts the question: what other theatrical work is about to be up for grabs for all takers? 

Certainly nothing as quite as classic as the Shaw work, although Elmer Rice’s The Adding Machine is widely acknowledged as an important work by an important playwright, even if recent outings are few. There was a musical adaptation that found success a decade ago.

A flip through the pages of the venerable Burns Mantle Best Plays books for 1922-23 and 1923-24 is a great survey, and while the synopses that appear for most plays suggest there’s a lot that’s best left in the past, there are some plays that might be worth looking at again, either to produce on a budget (no royalties), or adapt for modern audiences. Mind you, there’s no racial or ethnic diversity to speak of in the mix, unless you count Hungarian, but of course now anyone can set that right. Maybe there are shows out there ripe for musicalization, with no strings attached?

Here’s a cursory sampling, in no particular order:

• Will Shakespeare by Clemence Dane, which posited a love triangle in which Shakespeare and Kit Marlowe fight for the affections of one Mary Fitton, lady in waiting. It climaxes with a fight between Will and Kit which climaxes with (spoiler alert) Kit falling on his own knife. One can never have to many plays chronicling a life which went largely unrecorded by history.

• Mary the Third was a mid-career work by Rachel Crothers, a highly successful playwright whose greatest success would nonetheless come with her last produced piece, Susan and God in 1937. Mary the Third looked at marriage across three generations of women in the same family.

• Humoresque by Fannie Hurst was the story of a an up-from-the-slums violinist, and had already been a silent film based on Hurst’s short story. It was later considerably reworked by Clifford Odets and Zachary Gold into a film released in 1946, with the violinist now caught in a romance with his wealthy patroness, played by Joan Crawford.

• My Aunt from Ypsilanti was “adapted from the French” and while the play seemed entirely negligible, you gotta love that title, the only Broadway show to ever use the place name Ypsilanti. Of course, titles can’t be copyrighted, so if no one stole this one by now, it’s unlikely to see  a resurgence.

• Swashbucklers weren’t reserved for the screen, and 1923 saw the stage debut of Rafael Sabatini’s Scaramouche. One Sheldon Stanwood played the French hero, later embodied in 1952 on the screen by Stewart Granger. No records survive (actually, just didn’t look) as to whether the title character did the fandango.

• Frederick Lonsdale was a successful writer of musical librettos, but it’s his plays that have lived on, including The Last of Mrs. Cheney and On Approval,which will come into public domain in 2021 and 2023 respectively. But his Aren’t We All? from 1923 was in fact his last show to be seen on Broadway, in a starry 1985 production led by Claudette Colbert and Rex Harrison. 

• The sharp-eyed might question the inclusion of Outward Bound by Sutton Vane, but while it premiered on January 7, 1924, the Best Plays book notes that it was copyrighted in 1923. This metaphysical mystery, a thematic precursor to the TV’s Lost (oh, right, spoiler alert), was sufficiently popular to yield two movie versions, first in 1930, with Leslie Howard reprising his stage role, and again with Paul Henreid in the Howard role in a 1943 version called Between Two Worlds (oops, again, spoiler alert).

• The same “Say, wasn’t that a 1924 show?” query might be applied to Beggar on Horseback by George S. Kaufman and Marc Connelly but once again, while it premiered on February 12, 1924, its copyright was 1923 – the same year as another collaboration by the duo, the musical Helen of Troy, New York, which had songs by the team of Kalmar and Ruby. Somewhat surprisingly, it’s the play which seemed to have legs, as it turns up now and again on various stages, though its last Broadway run was in 1970.

• Ferenc Molnar had a solid run of hits between 1902 and 1941, including Liliom (which later became Carousel) and The Play’s The Thing (later adapted by Tom Stoppard as Rough Crossing). His 1923 fantasy of royalty, The Swan, translated by M.P. Baker, would become a film in 1956, starring Grace Kelly and Alec Guinness. It was one of two Molnar plays to debut on Broadway in October of that year, the other being the more tragically-minded Launzi, adapted by Edna St. Vincent Millay, about a young woman, rebuffed in love, who tries suicide, fails, is romantically rebuffed again, then acts as if she were dead, taking to wearing an angel’s wings.

• Not to be outdone by Kaufman & Connelly and Molnar, George M. Cohan wrote two shows that premiered in 1923, doing the book, music and lyrics for The Rise of Rosie O’Reilly, which gave Ruby Keeler her Broadway debut, a musical, and The Song and Dance Man, a play. Just to one up the competition, Cohan starred in the latter piece – and the two shows opened in the same week, the former on Christmas and the latter on New Year’s Eve.

• Cervantes’s Don Quixote predates concerns like copyright, so the material has actually long been available for free use. But for those who have grown tired of Man of La Mancha, they might want to delve into some archive and find out if there’s anything to be salvaged from Sancho Panza, the 1923 musical by Melchior Lengyel, with a score by Hugo Felix, which seems to have emphasized the wrong character, no doubt contributing to its brief run. Even 95 years ago, marketing mattered.

• Years before Hedy Lamarr worked her white-washed wiles on Walter Pidgeon, Annette Margulies embodied the “native girl” Tondeleyo in the potboiler White Cargo, itself adapted from a novel called Hell’s Playground by Ida Vera Simonton. A British film of the play preceded the Lamarr version, and faced censorship for sensual content, even in the pre-Production Code days.

Those with forethought may have already been working on resurrections or revivals of some of these works, but have kept silent until the copyright fully expires at 12:00 am on January 1. But if we’ve had dueling The Wild Partys and both a play and musical called Hamilton, who’s to say there might not be multiple Aunts From Ypsilanti in our future. Dramaturgs and literary managers, playwrights and composers, artistic directors: start your engines. The new year will be here before you can say “Scaramouche”!

Update, December 31, 2018: Subsequent to the publication of this post, I was contacted by Glenn Fleishman, who wrote the excellent Smithsonian piece linked above. According to his research, while Saint Joan debuted in 1923, it was not copyrighted until 1924. So if this Shaw play is on your theatre’s schedule for 2019, you may want to delve deeper into its copyright history before deciding not to pay royalties on it.

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.

Footnotes

1 https://www.broadwayworld.com/rhode-island/article/BWW-Review-Unique-and- Hilarious-JAMES-FRANCO-AND-ME-At-Epic-Theatre-Company-20161121.

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).

3 See 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).

6 See, 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.

8 http://www.providencejournal.com/news/20161107/theater-review-intriguing-james- franco-and-me-at-cranstons-epic-theatre.

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].”

There are Facebook pages for both Matt Shelton and Shelton Theatre.

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.”

Sevush’s entire letter can be read here.

Graphic design for “The Last Days of Judas Iscariot” via the Shelton Theatre website and photo from the production via the company Facebook page.

This post will be updated as circumstances warrant.

The shutting down of a high school play at East Newton High School in Granby, Missouri last week may have set a new low in bad timing for such incidents. The show was not canceled after casting, during rehearsals, just prior to opening night or following the first performance. No, at East Newton the show was canceled roughly 10 minutes into the second act on its first night. Why? Because two parents, watching the show, demanded that their child be pulled off the stage.

The reasoning? As one of the parents claimed on Facebook, “The play consisted of extreme amounts of cursing, drug use and sexually explicit content. There was language speaking about dildos, pornography, virgins and cherry popping. A student flipped off a teacher.”

With the cast member taken from the stage, a hasty explanation of the remainder of the show was offered. The school would not permit the show to have its second performance, even if a replacement actor had been found in time.

What was the show with this offensive content? A stage adaptation of the widely-loved John Hughes coming of age film The Breakfast Club, released 32 years ago. But therein lies another problem, namely that there is no authorized stage adaptation of The Breakfast Club. The production at East Newton was a wholly homegrown affair, save for the source material itself.

It’s impossible, unless one saw the truncated performance or was involved in the production, to debate whether the material was or was not appropriate for high school production. To what degree the words or actions on the East Newton stage were simply transcribed from the screenplay and copied from the film, or were altered, amended, edited and so on, may never be widely known. The film itself was one of only two of the “golden era” John Hughes to be rated R by the MPAA (the other being Trains, Planes and Automobiles).

The drama teacher, new to the school this year, told Arts Integrity that, regarding authorship, “A local teacher edited the show.” He also acknowledged the lack of rights, writing, “We were unable to obtain rights, the show has never been released as a play. I did a lot of research and found that there is no one to obtain the rights [from]. So we did some creative donation to make it closer to legal.” Asked to explain what “creative donation” meant, he replied, “We weren’t really charging admission. We put out a suggested donation to the drama club.”

As is often the case when shows are shut down by school officials, a campaign to get it restored began quickly, with a former drama club president, now a college student, leading the charge. He rallied support on social media, instigated a lengthy Facebook chain, coined the hashtag #LetThemPlay and even shared a tweet from the school superintendent showing a senior citizen audience attending what apparently was an extra performance or dress rehearsal. He noted that there were no red flags raised about the show’s content then, only when the parents complained – and cited the fact, corroborated by the drama teacher, that all of the students involved in the show had been required to get written permission to participate in the show from their parents in advance.

Another teacher at the school posted to Facebook that she was responsible for the adaptation. She wrote on Facebook about the school principal seeing part of a performance, or possibly a rehearsal, two evenings prior to the suddenly shortened one, noting that while that presentation was also cut short, in that case by a tornado alert, the principal recommended cuts to the text in order to address content issues, which were willingly implemented.

The situation generated coverage in the local media, but as of now, there are no plans for additional performances of The Breakfast Club on or off the East Newton campus. It leaves one sympathetic to the students and even their supporters, because they were denied the opportunity to see their work come to fruition. The principal commented to the local press that with additional changes, the show might yet be brought back. But continuing on with the show would sustain the copyright violation. This is an unwinnable scenario.

The lesson here is one of failed communication all around. It’s possible to applaud the school administration for the initial impulse to trust and work with the drama teacher and his wife to come up with a good show for the students, however all of those parties failed to understand the basics of copyright and licensing, since no script was available. That shouldn’t be taken as permission to go ahead and cobble together your own adaptation, but rather to either create a wholly original work, or to legally license preexisting material. The fact that a Hollywood movie company is unlikely to discover a scofflaw adaptation in a small town (and indeed, several other “original” stage adaptations of The Breakfast Club can be found via a careful Google search) makes no difference. Neither does asking for a donation instead of charging a set admission. What happened in Granby absolutely qualifies as public performance of dramatic material.

That parents apparently signed a permission slip approving their child’s participation in a school show and then rescinded that permission mid-performance suggests that either the form didn’t indicate why permission was being sought or that the parents weren’t paying sufficient attention to that information. While it’s impossible to assess from afar how school appropriate (or not) the play was, these parents had to know that by removing their child mid-show, they were effectively ending the evening for all concerned, cast, crew and audience alike. The school’s rapid decision not to allow the second performance served to back the parents’ assessment.

There are multiple adults who shoulder blame for what happened at East Newton. In recounting this situation, names have been omitted, since everyone here has lost out in one way or another. There’s no need to provide an easy route for shaming any of the parties –though the former drama club president’s efforts were admirable, if underinformed about the full scope of the issues at hand. Local news accounts can be found for those eager to push into the details or to verify this account.

It seems more important that all of the parties involved walk away with some lessons for the future. Teachers and administrators need to learn what is and is not permitted with regarding adapting existing works or licensing scripts for performance, and they should share that understanding of responsibility with their students. That this teacher-adapted version of a screenplay was willingly adjusted according to administration requests shouldn’t in any way suggest that existing, properly licensed scripts can be edited at will by those in authority. Permission slips should make clear their purpose when utilized, to insure parents understand what they’re approving for their children, to avoid even later than eleventh hour reversals. Parents should understand how their actions for their children can have a domino effect on many other students, and consider how it affects everyone in that moment, not solely what it means to them and their child.

Finally, this should also not be an excuse to suspend or terminate the drama program at East Newton, or to subject it to undue ongoing scrutiny beyond that appropriate for any school activity, but rather prompt all concerned to make it stronger and indeed to hopefully present material that is something more than G rated. After all of the attention this generated locally, the East Newton Drama Club should be allowed to build on that awareness it in the future, all concerned should do better next time, and East Newton students should be assured they can appear in shows that speak to their own experiences, perform shows in their entirety, and bask in applause when it’s all said and done.

As for The Breakfast Club? The Blu-Ray can be purchased for under $7 online.

Despite its origin in a 1988 film from John Waters, the underground master of camp, shock and transgression, the story of Tracy Turnblad, as told in multiple iterations, has become wholly mainstream. Thanks in large part to the 2002 stage musical version, Tracy’s story of leading an effort to integrate a local TV music program in Baltimore has had America singing and dancing along for years now. Beyond its more conventional musical numbers, it offers up a craven TV producer who laments her salad days as “Miss Baltimore Crabs” and teens miming the crushing bugs as part of a dance craze. Indeed, the mildly subversive tone of the musical, while significantly less spiky than the original film, is set by Tracy’s buoyant paean to her home city, which includes shout outs to the rats on the street and the local flasher.

In spite of its popularity and its pro-integration narrative (the show is set in 1962), the musical has been been criticized by some as advancing a white savior narrative, since it portrays a white girl, albeit one who is ostracized for her weight, taking the initiative and risk to make “every day Negro Day” on The Corny Collins Show, the musical’s American Bandstand analogue.  Given that it’s explicitly about the crossing of the racial line between blacks and whites, a certain amount of disbelief met the news in 2012 that one Texas high school did the show with an all-white cast, seemingly deracinating a story about race and posing a particular challenge to truthfully representing the narrative.

Consequently, the casting of a March production of Hairspray at Princeton University, in which Tracy was played by a biracial student and her mother, Edna, was played by a black student, was both surprising and informative. It demonstrated how this musical about integration can be explored anew, 15 years after its debut and 30 years after the original film. The production, which played for five performances in a studio theatre on the campus, was the senior thesis project of two students, Alex Daniels, who played Tracy, and AJ Jones, who directed (only her second time directing). Princeton does not have a theatre major, but does offer theatre certificates for a concentrated course of study. The production was entirely student driven, except for its musical director and its sound designer.

In an interview with Arts Integrity subsequent to the run, Daniels, who describes herself as ethnically biracial and racially black, and Jones, who identifies herself as white, explained the thinking behind their production.

Daniels began by saying, “When I was a freshman, way back when, I was having a conversation with someone about dream roles of mine and I mentioned that I really loved Tracy and that she would definitely be a dream role. That person was like, ‘That’s not possible. You’re not white. You could never play Tracy.’ And so that comment really hit me in a not so great way. Why should the color of my skin limit me from any possibilities? I brought it up with AJ and from there we thought, why not? This script and this show seem to be catered to having a person of color in this position struggling with these issues.”

Expanding upon the inception story of their Hairspray, Daniels said, “When Alex told me about this comment, I started thinking more about Tracy possibly being biracial and it made a lot of sense, especially given her role in the show, bringing these two groups together. It changes the relationships with all of the characters in the show and gives them all a little more depth as well.”

In the production, Daniels appears in facial makeup that is noticeably lighter than her own skin tone. The rationale for this was described by Daniels as addressing, “How is Tracy going to fit into this world when she very clearly is not white? I personally cannot pass as white. Then we had the conversation about what if she’s trying to pass. What if she’s using makeup to lighten her skin, using whiteface in order to make it through every day in this community. So that’s where this conversation came in. We also just felt that the story of passing was something we wanted to talk about, the extent to which African-American, biracial females, and definitely men as well, went to belong in this community to reap the benefits of being white.”

Jones noted, “We spent quite a bit of time testing a lot of different types of makeup. We decided to have it only on her face because we wanted to make it clear to the audience that she’s not white, that she’s passing as white. We discussed whether other characters in the show know that Tracy’s trying to pass, and we came to the conclusion that yes, they have to be suspicious, but they can’t really know for sure, they can’t really say anything about it, because of the power of this white face that she has on.”

*   *   *

At this point, it would be fair to question whether this color conscious casting of the roles of Tracy and Edna was contrary to the authors’ intent for the show. Arts Integrity asked that very question of Music Theatre International, which licenses the show, specifying what the production had done in regards to those roles. In reply, MTI president Drew Cohen said that the company does not place casting restrictions according to race on its customers, and pointed out specific material answering questions about racial casting for Hairspray, in the form of a letter from the four authors of the show, as well as John Waters. It reads, along with instructions for using it, in its entirety, as follows:

The use of make-up to portray black characters in your production (e.g., blackface) is not permitted under this Production Contract. By signing below, you agree to inform the director of your production that such use of make-up is strictly prohibited.

If your production of Hairspray features actors who are portraying characters whose race may be other than their own, you may elect to include the below letter from the creators of Hairspray in your program. You are not permitted to edit the letter in any way. 

Dear Audience Members,

When we, the creators of HAIRSPRAY, first started licensing the show to high-schools and community theatres, we were asked by some about using make-up in order for non-African Americans to portray the black characters in the show.

Although we comprehend that not every community around the globe has the perfectly balanced make-up (pardon the pun) of ethnicity to cast HAIRSPRAY as written, we had to, of course, forbid any use of the coloring of anyone’s face (even if done respectfully and subtly) for it is still, at the end of the day, a form of blackface, which is a chapter in the story of race in America that our show is obviously against.

Yet, we also realized, to deny an actor the chance to play a role due to the color of his or her skin would be its own form of racism, albeit a “politically correct” one.

And so, if the production of HAIRSPRAY you are about to see tonight features folks whose skin color doesn’t match the characters (not unlike how Edna has been traditionally played by a man), we ask that you use the timeless theatrical concept of “suspension of disbelief” and allow yourself to witness the story and not the racial background (or gender) of the actors. Our show is, after all, about not judging books by their covers! If the direction and the actors are good (and they had better be!) you will still get the message loud and clear. And hopefully have a great time receiving it!

Thank You,
Marc, Scott, Mark, Tom & John

While Cohen did not respond directly to the query regarding the specific color conscious casting at Princeton, where certainly white students were available, his pointing out of the letter, and his comment about not imposing racial restrictions, strongly indicate that such casting is permissible. In a separate piece of correspondence, Cohen stated, “The key is that the show must be performed as written and the characters should be portrayed as written.” He also clarified that while the authors’ letter singles out high school and community theatre productions, it is applicable to university productions as well.

*   *   *

So what was the effect of this concept of Hairspray? It seemed, as the thesis students intended, to deepen the story, and staging decisions only enhanced that. “Good Morning, Baltimore” was played slowly, more like a sad ballad, suggesting that Tracy’s everyday routine was not a joyous leap from bed, but rather the start of a new day of struggle. When the perpetually panicky Prudy Pingleton commented to Edna, her laundress, about “colored music,” it read as more pointed than ever before, and Edna’s dismissal of the characterization read as self-negating. When Velma von Tussle humiliates Tracy at her dance audition, it ceased to be solely an attack of her weight but also decidedly racial. When first encountering Edna and Tracy together, Velma’s already ugly sizeist comment “I guess you two are living proof that the watermelon doesn’t fall too far from the vine,” became doubly ugly. That all of the female characters are released from jail after the altercation at Motormouth Maybelle’s save for Tracy, a particular focus is placed on the continued imprisonment of a young woman who is biracial, while the black characters and white characters are all freed.

At the same time, the friendship between Tracy and Penny came across as particularly special, since clearly Penny – in and out of the Turnblad house like any teenager – surely had no questions about Tracy’s mixed parentage, but ignored the racial faultlines of the day. When Seaweed declares that, “Detention’s a rainbow experience,” he negates any concerns about racial divisions or conflicts as well for Tracy, who has been trying to pass as white. Detention becomes, in effect, a racial safe space.

By consciously altering the racial dynamic of Hairspray through only two characters, albeit leading roles, it is fair to suggest that the story of racial acceptance, integration and diversity became possibly even more resonant than the original portrayal as defined by the Broadway production. While the authors’ letter permitting cross-racial casting may have been intended primarily to address situations where there aren’t sufficient performers of color available, it laid the groundwork for Daniels and Jones’s interpretation, even though they asked the audience to engage directly with their color conscious casting, rather than suspending disbelief over it.

*   *   *

It is unfortunate to report that Cohen’s statement, common to all licensed productions, that “the show must be performed as written” was not fully adhered to when it came to the text. Daniels and Jones acknowledged that they had made small changes and excisions, such as changing the song “Big, Blonde and Beautiful” to “Big, Black and Beautiful,” as their Motormouth Maybelle wore her hair more naturally. Perhaps most significantly, in “You Can’t Stop The Beat,” a late segment involving the Von Tussles, both mother and daughter, in which they are encouraged to join the full on party, initially resisting and then ultimately joining in, was gone. They were denied their redemption as the authors intended.

Because Daniels and Jones did not request permission to make these changes, and perhaps other smaller ones that went unnoticed, they were violating the authors’ copyright and the licensing agreement. While their production may have been a student thesis and part of their academic work, it was publicly presented, and for multiple performances, so the legally standard practices should have applied. That they felt the need and the freedom to reauthor any of the show is a shame, since the casting, direction and performance had already been transformative, while still working within the existing text and the leave granted by the authors regarding race.

*   *   *

It is the right of Tom Meehan, Marc Shaiman, Scott Wittman, John Waters and the estate of Mark O’Donnell to determine what may be done in productions of Hairspray that go beyond the existing casting template, and they’ve offered up their thoughts for producers and directors to consider. This mirrors Lin-Manuel Miranda’s statements regarding the racial casting of In The Heights, where he has made clear that in high school productions, the cast need not be Latinx, in whole or part, so long as the performances are respectful of the Latinx identity. But it’s important to remember that this guidance is specific to these shows by these authors about their own work, not a policy applicable across the literary spectrum. Texts should remain inviolate without express permission, which may be hard to secure, but is nonetheless legally and ethically required.

While the criteria for evaluating the Princeton students’ thesis academically is unknown, they did achieve two silent but memorable moments that have not typically been part of productions of Hairspray, but are both worth remembering. The first came midway through Act II when Tracy, inspired by “I Know Where I’ve Been,” wiped away the makeup which had been used to indicate that as a biracial teen, she was trying to pass as white, and would no longer. She becomes secure with her racial identity, even if it means more struggle in that community in that era.

The second memorable invention came in the very final moments of the show when, after the joyous and victorious refrain of “You Can’t Stop The Beat” hit its final peak, there was not the customary blackout. Instead, the cast (sans the Von Tussles, as noted previously) were arrayed in a straight line across towards the rear of the stage. Maintaining the rhythm of the now ended song, they stepped forward in unision, in unity, to the beat, beat, beat, and the dance party was transformed into the front lines of a civil rights march, of the fight for racial equality that would extend far beyond the integration of a single teen TV show.

There’s a very large tree that has been traveling around the Dallas-Fort Worth region in Texas. There’s no need to worry, as the tree hasn’t acquired independent mobility and become sentient, but rather, it has made major appearances in two theatrical productions in the area in a short span of time. Designed originally by Bob Lavallee for the Trinity Shakespeare Festival production of A Midsummer Night’s Dream at Texas Christian University, it just finished a run center stage in Camelot at Lyric Stage.

As Mark Lowry reported on his TheaterJones site, the tree would have been headed for the dumpster after the end of the run of Dream, had not Steven Jones, producer at the Lyric, asked if he could use it as part of the set for Camelot. Lavallee consented, provided he received credit. However, he declined to adapt his whole set for the Lyric production.

But as Lowry noted, other scenic pieces from Dream found their way into the production of Camelot as well, albeit with some new scenic painting and set dressing, with the overall set credited to Cornelius Parker. This suggests two problems. The first is whether Lyric had the right to use, or whether Trinity Shakespeare had any right to provide, anything but the tree in connection with Camelot. The second is the fact that Cornelius Parker doesn’t exist – the name is a pseudonym for Steven Jones.

“Camelot” at Lyric Stage (photo by Michael C. Foster

There’s no mention made of a contract, only an agreement and a payment for use of the tree; Lavallee is not a member of United Scenic Artists, so he doesn’t have union backing to help work out the situation. But it seems that the appearance of additional scenic elements from Dream in Camelot goes beyond the agreement, regardless of how they were used or disguised in their second appearance. Unless Jones indulged himself in some unauthorized dumpster diving in arranging for the tree and the other elements to be transported to Lyric Stage, it appears that Lavallee has an issue with both Lyric Stage and Trinity Shakes, since the latter, in supervising the load out of the tree, presumably had some staff overseeing what went on the truck, and more was allowed to go than what was agreed to.

Jones’s use of a pseudonym to disguise his own role as the coordinator of scenic elements for the production – using the word designer may be ill-advised here depending upon how much of Lavallee’s work actually appeared – seems a deliberate attempt to disguise the provenance of the work, when only the tree itself was credited to Lavallee, by agreement. While Lowry reports that Jones has used the pseudonym once before, for a set he devised using pieces in the theatre’s stock (notably Funny Girl and The King and I), the obfuscation is troubling. While Jones chalks it up as, “I didn’t want to take credit for it,” it’s impossible not to wonder whether the genesis was less modesty than an understanding that he didn’t really design either show, but was deploying the designs of others. In any event, it’s misleading the audience and the press, who operate under the assumption that what appears in their programs is truthful.

As a corollary here, some might invoke authors who have written under pseudonyms (Stephen King writing as Richard Bachman, for example, or Joyce Carol Oates as Rosamond Smith). It’s important to recognize that those authors opted to put false names on their own work. In King’s case, the subterfuge didn’t last long, and was in part because his publishers were concerned about flooding the market with new works from the prolific novelist; for Oates, it was an effort to distinguish between the different modes, and even genres, in which she writes. When the Coen Brothers edit their films under the false name of Roderick Jaynes, again, it’s their choice for their own work, and their names already appear repeatedly in the credits of their film.

Going beyond the case of the Trinity Shakespeare/Lyric Stage tree and other scenic elements, this case points up a continuing challenge for designers regarding credit when their work is incorporated, especially when the use is partial but significant, into other productions. If a scenic designer creates distinctive scenic elements that are newly built for a given production, is that designer due credit and/or compensation when they are used – whether at the same theatre for a different show, or by another theatre and show entirely? If a costume designer creates, say, their own unique take on the Ascot scene in My Fair Lady, and then those costumes appear in the Prince’s ball scene in a production of Cinderella, what is the original designer due? How does copyright come into play?

Many theatres maintain costume and scenic stocks, so they are not constantly building new pieces Some theatres may operate rental houses or sell their costumes to independent costume rental houses. So when does the design recognition end? It’s a sticky wicket with no easy answers, but it’s particularly complicated when a design is credited to one person – real or fictitious – and it contains a noteworthy portion of designs that are actually the work of someone else.

This isn’t meant to say that the use of stock items should be abolished, because that’s truly wasteful and for some companies would make productions economically unfeasible. There are legitimate cases to be made for shows being drawn from stock, or collaging pieces from other productions in order to create what is essentially a new overall design. It’s just to say that perhaps there’s more credit (and perhaps royalty) due than is currently given, especially at the professional level.

As for Cornelius Parker, fictitious designer, hopefully his ignominious career is at an end. However Lyric Stage designs, devises or assembles its productions in the future, they should own up to the truth of it, and not pretend to more creativity than they may be putting on their stage.