People are dumbfounded. People are incredulous. People are angry.

Robert Branch and Camila Christian in The Mountaintop at Kent State University

In the past few hours, a month-old story began circulating on social media about a production of Katori Hall’s widely produced The Mountaintop, specifically a story from the Akron Beacon-Journal about a production of the play at Kent State University in late September and early October. What has everyone so riled up? The two photos from the production of Hall’s two-character play about Dr. Martin Luther King’s imagined encounter with a motel housekeeper on the night before his assassination show a white male in both photos. And it’s not an error by the paper.

For his production, under the auspices of the African Community Theatre at Kent State, Michael Oatman who is the company creative director this year, said that he had double cast the role of Dr. King, with a black actor performing for three shows and a white actor performing for three shows. In an interview on the university website, Oatman explained his concept:

While Oatman understands that the piece may stir some controversy he also hopes that it stirs discussion about America’s original sin: race. “I truly wanted to explore the issue of racial ownership and authenticity.  I didn’t want this to be a stunt, but a true exploration of King’s wish that we all be judged by the content of our character and not the color of our skin,” said Oatman about his non-traditional cast.  “I wanted the contrast . . . I wanted to see how the words rang differently or indeed the same, coming from two different actors, with two different racial backgrounds.”

How was this allowed to happen? First off, no one apparently raised the issue during the two-weekend run. Despite appearing in a general circulation paper and online on both the paper’s site and the school’s site, it seems that there was not an immediate rush on anyone’s part to question this creative decision. Was this because Oatman is African-American and the African Community Theatre operates under the auspices of the school’s Department of Pan-African Studies, and so it was assumed that this approach was sanctioned?

Wasn’t the school in violation of the licensing agreement, in this case with Dramatists Play Service? Well, that depends upon how you interpret the contract and the play text. While the usual language about not making any changes was in place, it happens that the script doesn’t explicitly state that Dr. Martin Luther King is to be played by a black actor. Needless to say, most people would assume that to be implicit when hiring someone to play a civil rights leader who has been gone less than fifty years. But it was not absolutely specified. DPS informed me that as a result of the Kent State production, Mountaintop contracts going forward will carry language stating that both characters are to be played by black actors – unless permission to do otherwise is requested and granted.

Robert Branch as Dr. Martin Luther King in the Kent State University production of The Mountaintop

So with this production already in the rearview mirror, what are some of the takeaways from this? The first is that even when it seems obvious, if playwrights wish for certain roles to be played by actors of certain, ages, genders, race, ethnicity or disability, they need to make it very clear in their script and give clear instructions to their agents and their licensing house as well. Apparently you can’t be too careful.

While it is quite surprising to imagine Dr. King, or Malala Yousafzai, or Cesar Chavez played by white actors, let’s remember that we are now in the post-Hamilton era, which suggests to the narrowminded that roles meant for people of color can now be played by white actors if traditionally (or historically) white characters can be played by actors of color. I would, and frequently do, argue that this is a false equivalency.

Could such specificity lead to playwrights declaring that their characters can only be played by white actors? Yes, and whether we like it or not, that’s their right. For as long as work is under copyright, it is the decision of the author (or their estate) to decide what may be done with or to their work. Yes, that may seem to stifle creativity on the part of directors and limit opportunities for actors in some works, but in the theatre in the U.S. – as opposed to film or television – the authors own their plays and have the final word.

Michael Oatman

So it’s interesting to note that Michael Oatman, who directed the Kent State Mountaintop, is a playwright, and that his bio on the Kent State site doesn’t list directing credits, only writing credits. One has to wonder if in the wake of this production, Oatman had a playwright to playwright conversation with Hall, who now has explicit protection to prevent this situation from recurring – although not completely extinguishing the possibility of racial revision of the characters at some point in the future with her consent. Not knowing Oatman’s work, I wonder whether he either has asserted his authorial protections on productions, or desires to protect his own plays, or whether he welcomes the reworking of racial representation in the stories he seeks to tell.

There’s another key takeaway here, regarding academic productions, and that is that universities are not immune from the protections afforded by copyright law, and licensing agreements. While a scene may be tackled in a classroom setting in ways that may not fully comport with the text, when work is presented before an audience, the rules apply to everyone. I have heard tales of college productions, directed by faculty and by students, that flout the stipulation of works under copyright, and while the Kent State Mountaintop managed to get its six performances in before anyone with authority over the work, or in the broader theatrical community, caught on, academic theatre is a huge market and playwrights don’t want to see their work distorted there anymore than they would in a professional production. That’s not to say that directors with new ideas shouldn’t pitch them. But they have to be prepared to stick with the letter and spirit of the original text if approval isn’t forthcoming, or move on to a work where they can gain that approval, or which has entered the public domain, in which case they can do anything they like.

A final observation, based solely on seeing the two pieces I’ve referred to online. I find it curious that the Akron newspaper’s two photos both include the white actor playing Dr. King, Robert Branch (one which includes Cristal Christian, the black actress playing Camae, the housekeeper), but that there’s no photo of the black actor. The same situation crops up in the interview on the Kent State site – Oatman is interviewed, as are Branch and Christian. Again, no mention of the alternate Dr. King. Indeed, he’s not even named. The same holds true for an article on the site KentWired.com.

Is it possible that whoever the black actor was happened to be unavailable to be interviewed or photographed? Did these media outlets choose to excise him from their coverage? Was this accident, or strategy? Or did the double casting concept get abandoned at some point in the process, since it is only described in an August feature?

As this story becomes more widely known, I imagine members of the creative community will be reaching out to Michael Oatman to better understand the rationale behind his approach, and perhaps to share their views on this concept for The Mountaintop. Hall has posted on Facebook in regards to posts about this production that “an article,” presumably by her, is forthcoming; I await it eagerly. For those upset that this approach was ever taken, the Kent State production can now be the source for worthwhile conversations about representations of race on stage and how much latitude a director has with any script, ethically and legally, when staging copyrighted works.

We’re not going to see a repeat of this particular case unless Katori Hall says it’s OK. And maybe we’ll see much more specific character descriptions in scripts in the wake of this incident – but hopefully we’ll also see playwrights making clear when they not only allow, but encourage, racially diverse casts, as a signal to directors that diversity and indeed variety is desirable.

Update, November 9, 3 pm: Earlier today, the website The Root published Katori Hall’s own account of learning about the Kent State production, her conversation with the director and her response to what took place. It is essential reading.

Update, November 16, 5 pm: In a report in the Akron Beacon Journal, it was revealed that no black actor appeared in Kent State production of The Mountaintop. Click here for more details, including Katori Hall’s reaction.

Thanks to David Dubov-Flinn who first brought the Kent State production to my attention.

Howard Sherman is director of the Arts Integrity Initiative at The New School for Performing Arts School of Drama and interim director of the Alliance for Inclusion in the Arts.

People are dumbfounded. People are incredulous. People are angry.

Robert Branch and Camila Christian in The Mountaintop at Kent State University

In the past few hours, a month-old story began circulating on social media about a production of Katori Hall’s widely produced The Mountaintop, specifically a story from the Akron Beacon-Journal about a production of the play at Kent State University in late September and early October. What has everyone so riled up? The two photos from the production of Hall’s two-character play about Dr. Martin Luther King’s imagined encounter with a motel housekeeper on the night before his assassination show a white male in both photos. And it’s not an error by the paper.

For his production, under the auspices of the African Community Theatre at Kent State, Michael Oatman who is the company creative director this year, said that he had double cast the role of Dr. King, with a black actor performing for three shows and a white actor performing for three shows. In an interview on the university website, Oatman explained his concept:

While Oatman understands that the piece may stir some controversy he also hopes that it stirs discussion about America’s original sin: race. “I truly wanted to explore the issue of racial ownership and authenticity.  I didn’t want this to be a stunt, but a true exploration of King’s wish that we all be judged by the content of our character and not the color of our skin,” said Oatman about his non-traditional cast.  “I wanted the contrast . . . I wanted to see how the words rang differently or indeed the same, coming from two different actors, with two different racial backgrounds.”

How was this allowed to happen? First off, no one apparently raised the issue during the two-weekend run. Despite appearing in a general circulation paper and online on both the paper’s site and the school’s site, it seems that there was not an immediate rush on anyone’s part to question this creative decision. Was this because Oatman is African-American and the African Community Theatre operates under the auspices of the school’s Department of Pan-African Studies, and so it was assumed that this approach was sanctioned?

Wasn’t the school in violation of the licensing agreement, in this case with Dramatists Play Service? Well, that depends upon how you interpret the contract and the play text. While the usual language about not making any changes was in place, it happens that the script doesn’t explicitly state that Dr. Martin Luther King is to be played by a black actor. Needless to say, most people would assume that to be implicit when hiring someone to play a civil rights leader who has been gone less than fifty years. But it was not absolutely specified. DPS informed me that as a result of the Kent State production, Mountaintop contracts going forward will carry language stating that both characters are to be played by black actors – unless permission to do otherwise is requested and granted.

Robert Branch as Dr. Martin Luther King in the Kent State University production of The Mountaintop

So with this production already in the rearview mirror, what are some of the takeaways from this? The first is that even when it seems obvious, if playwrights wish for certain roles to be played by actors of certain, ages, genders, race, ethnicity or disability, they need to make it very clear in their script and give clear instructions to their agents and their licensing house as well. Apparently you can’t be too careful.

While it is quite surprising to imagine Dr. King, or Malala Yousafzai, or Cesar Chavez played by white actors, let’s remember that we are now in the post-Hamilton era, which suggests to the narrowminded that roles meant for people of color can now be played by white actors if traditionally (or historically) white characters can be played by actors of color. I would, and frequently do, argue that this is a false equivalency.

Could such specificity lead to playwrights declaring that their characters can only be played by white actors? Yes, and whether we like it or not, that’s their right. For as long as work is under copyright, it is the decision of the author (or their estate) to decide what may be done with or to their work. Yes, that may seem to stifle creativity on the part of directors and limit opportunities for actors in some works, but in the theatre in the U.S. – as opposed to film or television – the authors own their plays and have the final word.

Michael Oatman

So it’s interesting to note that Michael Oatman, who directed the Kent State Mountaintop, is a playwright, and that his bio on the Kent State site doesn’t list directing credits, only writing credits. One has to wonder if in the wake of this production, Oatman had a playwright to playwright conversation with Hall, who now has explicit protection to prevent this situation from recurring – although not completely extinguishing the possibility of racial revision of the characters at some point in the future with her consent. Not knowing Oatman’s work, I wonder whether he either has asserted his authorial protections on productions, or desires to protect his own plays, or whether he welcomes the reworking of racial representation in the stories he seeks to tell.

There’s another key takeaway here, regarding academic productions, and that is that universities are not immune from the protections afforded by copyright law, and licensing agreements. While a scene may be tackled in a classroom setting in ways that may not fully comport with the text, when work is presented before an audience, the rules apply to everyone. I have heard tales of college productions, directed by faculty and by students, that flout the stipulation of works under copyright, and while the Kent State Mountaintop managed to get its six performances in before anyone with authority over the work, or in the broader theatrical community, caught on, academic theatre is a huge market and playwrights don’t want to see their work distorted there anymore than they would in a professional production. That’s not to say that directors with new ideas shouldn’t pitch them. But they have to be prepared to stick with the letter and spirit of the original text if approval isn’t forthcoming, or move on to a work where they can gain that approval, or which has entered the public domain, in which case they can do anything they like.

A final observation, based solely on seeing the two pieces I’ve referred to online. I find it curious that the Akron newspaper’s two photos both include the white actor playing Dr. King, Robert Branch (one which includes Cristal Christian, the black actress playing Camae, the housekeeper), but that there’s no photo of the black actor. The same situation crops up in the interview on the Kent State site – Oatman is interviewed, as are Branch and Christian. Again, no mention of the alternate Dr. King. Indeed, he’s not even named. The same holds true for an article on the site KentWired.com.

Is it possible that whoever the black actor was happened to be unavailable to be interviewed or photographed? Did these media outlets choose to excise him from their coverage? Was this accident, or strategy? Or did the double casting concept get abandoned at some point in the process, since it is only described in an August feature?

As this story becomes more widely known, I imagine members of the creative community will be reaching out to Michael Oatman to better understand the rationale behind his approach, and perhaps to share their views on this concept for The Mountaintop. Hall has posted on Facebook in regards to posts about this production that “an article,” presumably by her, is forthcoming; I await it eagerly. For those upset that this approach was ever taken, the Kent State production can now be the source for worthwhile conversations about representations of race on stage and how much latitude a director has with any script, ethically and legally, when staging copyrighted works.

We’re not going to see a repeat of this particular case unless Katori Hall says it’s OK. And maybe we’ll see much more specific character descriptions in scripts in the wake of this incident – but hopefully we’ll also see playwrights making clear when they not only allow, but encourage, racially diverse casts, as a signal to directors that diversity and indeed variety is desirable.

Update, November 9, 3 pm: Earlier today, the website The Root published Katori Hall’s own account of learning about the Kent State production, her conversation with the director and her response to what took place. It is essential reading.

Update, November 16, 5 pm: In a report in the Akron Beacon Journal, it was revealed that no black actor appeared in Kent State production of The Mountaintop. Click here for more details, including Katori Hall’s reaction.

Thanks to David Dubov-Flinn who first brought the Kent State production to my attention.

Howard Sherman is director of the Arts Integrity Initiative at The New School for Performing Arts School of Drama and interim director of the Alliance for Inclusion in the Arts.

Deborah Puette in Tommy Smith’s “Ghost Light” at Echo Theater Company

“This is a community art, built only on the goodwill between artists, and there isn’t enough money to bring in lawyers.”

If you ask me, that quote in The Los Angeles Times, from playwright Tommy Smith, is a rather contradictory one. Referring to the playwright’s current dispute with the Echo Theatre Company in Los Angeles, it suggests magnanimity, but then says that’s the chosen path only because legal recourse is too expensive. If it’s about good will, why is it in the press?

In the September 30 article by David Ng, Smith charges the company with, among other things, producing his play Ghost Light without a contract and willfully excluding the author from rehearsals. Performances date back to early August.

If Smith’s account is accurate, the behavior of the company is unconscionable, violating pretty much every tenet of the playwright-producer relationship and amounting to outright theft of creative material. It is exactly the sort of treatment that prompted playwrights to react to the call for submissions by Words Players Theatre, an amateur youth troupe in Minnesota, rising to a level of vehemence that may have undermined some of the completely legitimate arguments. Is this in part a similar scenario, but at a professional level, exactly the sort of behavior that many wanted to be sure Words Players wasn’t instilling in young writers and directors?

Here’s the problem with calling for equally passionate reaction to what’s happened at Echo Theater: the theatre claims it has a signed contract and that the playwright was paid for performances. And while David Ng’s article carries the headline, “Why a playwright is urging L.A. theatergoers to boycott his latest,” the article states that all future performances have been canceled, negating any need for a boycott at least. What we have here is a “he said/they said” situation.

Now it’s important to note that Ng attempted to contact Smith’s agent, which Smith’s website indicates is Jessica Amato at The Gersh Agency in New York. He received no response according to his article, and my own inquiry, via e-mail, 24 hours ago, also yielded no reply. I have written to Smith on Twitter to try to engage with him directly, but have as of yet been unsuccessful (though I should note that I’m writing from London, and an eight-hour time difference might be a factor). Ng also said Echo Theatre didn’t respond when he asked for more information about the contract they say they have.

If indeed Echo Theater proffered a contract that proposed to give Chris Fields, the company’s artistic director “complete authorial control over the production,” then the situation is shameful. If the play was proposed as a workshop and produced without a valid production agreement in place, it’s actionable. I would refer Smith and Amato to the Dramatists Legal Defense Fund, who I believe would vigorously pursue such a claim, including identifying an attorney who might take on the case pro bono. No matter the size of the company, the length of the play or the dollars at stake, the rights of artists to control their work must be defended.

The LA Times report as it stands is unsatisfying, and not quite the basis for a public campaign just yet. Now that it’s out in the open, someone beyond Smith needs to fully open up, whether it’s Echo Theater, by producing an executed copy of the contract in question to prove their claim (although if it includes language about ceding authorial rights the issue won’t stop there), or Smith’s agent, to corroborate the scenario he laid out.

There’s more to this story for sure. But whatever’s happened in Los Angeles, the dispute about Ghost Light can’t be allowed to become a phantom, because there’s too much at stake that’s vital to all playwrights to let it simply disappear, echoing as it evanesces.

PART II, October 6, 2015

At the end of my original post, I had asked the parties involved in the dispute over the production of Ghost Light at Echo Theater to speak up and shed more light on the situation. One responded, one demurred, and one stayed silent.

Jessica Amato of The Gersh Agency, who represents Tommy Smith, had not responded to my e-mail last week, but took my phone call yesterday. She said that in regards to inquiries about Ghost Light at Echo Theater, only the playwright could address questions regarding the play’s production. She confirmed that the e-mail address I had found for Smith, through a mutual acquaintance, was indeed the correct one, and said that if he wished to make any statement or speak with me, a response would be at his discretion.

Smith, however, has not responded to my inquiries, either on Twitter, as I had attempted last week, or via e-mail, despite two attempts yesterday, with more than 24 hours now passed. After sending notices to the Los Angeles press with his charges against Echo Theater’s production of Ghost Light last week, and speaking with the Los Angeles Times for the story that ran on September 30, Smith did not take the opportunity to discuss the issue any further, at least not with me.

I did hear from Chris Fields, the artistic director of Echo Theater, first via e-mail and then in two phone calls, a brief conversation on Sunday and a longer interview yesterday. In between those two calls, Fields sent me a copy of the theatre’s June agreement with Tommy Smith for the production of 12 performances (not described as a workshop) of Ghost Light, as well as a canceled check in payment of an author’s fee for those performances. It was exceedingly brief, amounting to a single paragraph in a three paragraph letter. One other paragraph had been redacted, which Fields explained as pertaining to a separate production of a play by Smith; the payment amount was also redacted on the check, however the agreement’s first paragraph indicated that the subsequent paragraphs were terms for two purposes, only one being Ghost Light. Provided the redacted paragraph was as described by Fields, what I saw appears to corroborate the statement Fields made to David Ng at the Los Angeles Times last week and contradict Smith’s account of Ghost Light being produced without an agreement.

In our conversation, Fields spoke highly of Smith’s work and recounted Echo’s production history with his plays, including the successful August debut of Ghost Light. When asked about the discrepancy between the theatre’s position and Smith’s assertions, Fields indicated that it stemmed from conversations about a new author’s agreement that was being negotiated in early September, in response to Smith’s request for an increased author’s fee. He denied any effort to alter the play or its title without Smith’s consent, or asking for any form of authorial control.

“He asked for more money,” said Fields. “I forgot I’d contracted for 12 performances.” But saying that even once he realized that he was not averse to an increase, Fields prepared a revised agreement that he described as “acknowledging that earlier agreement is void and authorizing additional performances.”

According to Fields, Smith said that the new agreement was not sufficient and that his agent would not accept it, and they agreed that Smith would send revisions. Among other points raised in the Smith draft, Fields said, “He sent agreement with language insisting on meeting with marketing and publicity director. It was moot because marketing already existed and the image we used came from him.” Fields said there was also standard language about authorial approval and consultation, but that in this case the agreement pertained to an existing production, which had already opened and been reviewed, so there was some disagreement regarding reasonable approvals language. There were communications between Fields, Smith and Smith’s agent, but Fields said that conversations over the new agreement lapsed on September 9; the next performance of the play was to be September 26.

Without an updated agreement, the June agreement was still in force, and Echo gave its scheduled performance on September 26. In communications the next day between Fields and Smith, in which Smith expressed his displeasure with the performance going forward the night before, Fields said he ultimately informed Smith that the remaining two scheduled performances would be canceled. It seems that Smith began his efforts to contact the media the next day.

So what can we take from this falling out between a playwright and theatre company that had worked together several times previously?

First, this is an object lesson on the benefit of representation. It appears that the original agreement, which as I noted was quite brief, was executed directly between Smith and the theatre. With an agent or attorney negotiating it, or if it fully followed Dramatists Guild guidelines, Smith would have perhaps had the fee and protections that he apparently sought to address with a revised agreement, negating the need for another contract.

Second, while contracts can be superseded and negated with new agreements, old agreements don’t lapse as a result of negotiation, but only upon execution of the new agreement encompassing those terms. While the situation may not have been ideal for Echo to proceed with more performances after communications broke down in early September, it appears they were within their rights in giving more performances of the existing production.

Third, playing out a dispute in the media is very tricky. While Smith got very high profile press for his charges via the LA Times, and indeed benefited from a headline which even the story didn’t support, a careful reading of the article suggested that the situation was more complex than was portrayed in the piece. Echo Theater might have helped itself in the situation if they had released the canceled check and brief contract immediately to David Ng, to bolster their position. Recalling an edict from the Bill Clinton campaign, repeated charges not challenged become facts.

It’s clear that a previously fruitful relationship between Tommy Smith and the Echo Theater has gone sour in a dispute over the revision of contractual terms. However, in the absence of any statement or explanation from Smith or his agent beyond his initial claim, it seems that the original agreement was still in force and Echo Theater was producing the show under a valid agreement for which payment had been made and accepted months before.

Update, October 7, 9 pm: Reporting further on the dispute between Tommy Smith and the Echo Theater Company, David Ng’s follow-up story included a new statement from Smith:

“After taking the time to consult with legal representation, I am profusely apologizing for and retracting my statements about Echo Theater Company and its project Ghost Light,” he said.

Smith said he consulted with the Dramatists Guild, the New York-based professional association of playwrights, on the matter.

“I thank Echo for allowing me the time to fully understand my situation and consider this difficult admission,” the playwright said. “I am sorry that the public had to be involved at all.”

 

Howard Sherman is the director of the Arts Integrity Initiative at The New School for Performing Arts.

It is, without question, the feel-good theatre and pop culture copyright story of the day.

“Taylor Swift comes to rescue of Sydney’s Belvoir Street Theatre over use of hit song Shake It Off.” “‘Permission granted’: Taylor Swift’s 11th-hour rescue for Sydney theatre show.” “Taylor Swift says yes to Belvoir Street SOS, theatre set to Shake It Off.” And so on.

The fast story is this: Belvoir Street Theatre, a well-known and respected Australian theatre company is producing a play, Seventeen, in which a group of elderly (and acclaimed) actors play 17 year olds. The director of the show wanted to use “Shake It Off” as a choreographed number at the show’s climax. But going through normal channels, the music publisher had denied the company the rights, for reasons unknown.

Five days before opening, all conventional efforts exhausted, the company resorted to trying to reach Swift on social media and in what may be a first, she granted the rights via Twitter just hours ago. While I suspect there are some contractual details to be worked out beyond “Permission granted,” presumably the tweet from Swift gives Belvoir Street enough comfort that they can proceed. While news reports indicate that alternate music and staging was being prepared, now everything can continue according to the theatre’s and the production’s original plans.

It is, as I say, a happy ending, and having the reigning queen of pop music as your deus ex machina is quite the capper. But I would caution others who want to try this approach not to count on a recurrence: music licensing (or the licensing of any copyrighted material) via social media is not, in my estimation, going to become the new normal.

The fact is, Belvoir Street got lucky. To be sure, they waged a heck of a campaign, with people like Tim Minchin tweeting support and online pleas like “Please ‪@taylorswift13 help these seventy-year-olds Shake It Off!” making the case on emotion, rather than business grounds. And, of course, Swift seems to be very personally involved in every single aspect of her career, including her social media feeds, so she and her team actually saw and considered the request, having undoubtedly known nothing of the original denial.

Just don’t try this at home with your show, whether it’s a fringe production or at a resident company like Belvoir Street. There are lots of artists who have people paid to monitor their social media (as I’m sure Swift does as well), but they’re not necessarily as shrewd or as generous as Taylor. They also have people paid to monitor unauthorized use of their words and music. Proceeding deep into rehearsals with material you don’t have rights to can easily bring heartache, and while that might merely be more song fodder for Swift, it can be unsettling to a production and possibly even expensive for a company when last minute changes need to be made.

There’s no question that pop music added to plays can enhance a production, without turning it into a jukebox musical. I vividly recall the Steppenwolf production of Balm in Gilead which interpolated now-vintage Bruce Springsteen recordings so brilliantly, and Trinity Rep’s All The King’s Men which made Randy Newman’s songs from his Good Old Boys album seem as if they’d been written expressly for the show. I can’t say whether the music was properly licensed in either of those cases – both are over 25 years old and my Playbills are in storage – but even if they weren’t then, I can’t imagine these shows getting away without the rights agreements now.

So the story here is not so much that Belvoir Street dodged a bullet, but that Taylor Swift deflected it. While she may seem to be omnipresent these days, she can’t actually be everywhere, and other artists and songwriters may not be quite as magnanimous. So when it comes to using existing songs, it may be like you’ve got this music in your mind, saying it’s gonna be alright, but that’s not necessarily the case. When it comes to copyright, you just can’t shake it off.

Howard Sherman is the director of the Arts Integrity Initiative at the New School for Drama.

It is, without question, the feel-good theatre and pop culture copyright story of the day.

“Taylor Swift comes to rescue of Sydney’s Belvoir Street Theatre over use of hit song Shake It Off.” “‘Permission granted’: Taylor Swift’s 11th-hour rescue for Sydney theatre show.” “Taylor Swift says yes to Belvoir Street SOS, theatre set to Shake It Off.” And so on.

The fast story is this: Belvoir Street Theatre, a well-known and respected Australian theatre company is producing a play, Seventeen, in which a group of elderly (and acclaimed) actors play 17 year olds. The director of the show wanted to use “Shake It Off” as a choreographed number at the show’s climax. But going through normal channels, the music publisher had denied the company the rights, for reasons unknown.

Five days before opening, all conventional efforts exhausted, the company resorted to trying to reach Swift on social media and in what may be a first, she granted the rights via Twitter just hours ago. While I suspect there are some contractual details to be worked out beyond “Permission granted,” presumably the tweet from Swift gives Belvoir Street enough comfort that they can proceed. While news reports indicate that alternate music and staging was being prepared, now everything can continue according to the theatre’s and the production’s original plans.

It is, as I say, a happy ending, and having the reigning queen of pop music as your deus ex machina is quite the capper. But I would caution others who want to try this approach not to count on a recurrence: music licensing (or the licensing of any copyrighted material) via social media is not, in my estimation, going to become the new normal.

The fact is, Belvoir Street got lucky. To be sure, they waged a heck of a campaign, with people like Tim Minchin tweeting support and online pleas like “Please ‪@taylorswift13 help these seventy-year-olds Shake It Off!” making the case on emotion, rather than business grounds. And, of course, Swift seems to be very personally involved in every single aspect of her career, including her social media feeds, so she and her team actually saw and considered the request, having undoubtedly known nothing of the original denial.

Just don’t try this at home with your show, whether it’s a fringe production or at a resident company like Belvoir Street. There are lots of artists who have people paid to monitor their social media (as I’m sure Swift does as well), but they’re not necessarily as shrewd or as generous as Taylor. They also have people paid to monitor unauthorized use of their words and music. Proceeding deep into rehearsals with material you don’t have rights to can easily bring heartache, and while that might merely be more song fodder for Swift, it can be unsettling to a production and possibly even expensive for a company when last minute changes need to be made.

There’s no question that pop music added to plays can enhance a production, without turning it into a jukebox musical. I vividly recall the Steppenwolf production of Balm in Gilead which interpolated now-vintage Bruce Springsteen recordings so brilliantly, and Trinity Rep’s All The King’s Men which made Randy Newman’s songs from his Good Old Boys album seem as if they’d been written expressly for the show. I can’t say whether the music was properly licensed in either of those cases – both are over 25 years old and my Playbills are in storage – but even if they weren’t then, I can’t imagine these shows getting away without the rights agreements now.

So the story here is not so much that Belvoir Street dodged a bullet, but that Taylor Swift deflected it. While she may seem to be omnipresent these days, she can’t actually be everywhere, and other artists and songwriters may not be quite as magnanimous. So when it comes to using existing songs, it may be like you’ve got this music in your mind, saying it’s gonna be alright, but that’s not necessarily the case. When it comes to copyright, you just can’t shake it off.

Howard Sherman is the director of the Arts Integrity Initiative at the New School for Drama.

I should say right up front that, until about two hours before I began writing, I didn’t know anything about the Words Players Theatre of Rochester, Minnesota or its parent organization, Northland Words. I only learned about them because the company had raised the online ire of people in the creative community. In particular, what caught my eye was a blog post by playwright Donna Hoke, “Dissecting The Most Disgusting Call For Plays I’ve Ever Seen,” in which she does exactly what she says she’s going to do in her title, line by line, word by word. I share her concern, but I’d like to take a macro view of the message that the company appears to be sending.

Throughout their call for plays for Words Players 2015 Original Short Play Festival, the company’s director Daved Driscoll says several things worthy of admiration: there’s a commitment to young performers, as well as a desire to find work which he feels will appeal to his local community. I don’t think anyone would argue with those goals.

But where his message gets into trouble is, first, in the margins, so to speak. “Our emphasis is perhaps less on the artist-centered goal of producing ‘great art’,” he writes; elsewhere he notes “our desire to give writers and directors first-hand experience of the vagaries of ‘marketability’ as much as the more arcane goals of ‘art’.” If Words Players’ primary goal is to sell tickets, that’s perfectly fine, but that intimates that their efforts are more commercial than not-for-profit, and Northland Words is a 501(c)(3) tax-exempt organization. Yet plenty of not-for-profits are accused of chasing sales over creative pursuits, so they’re not alone, but it’s awfully dissonant to be asking for plays from artists while dissing art itself. Why not focus affirmatively on what’s sought, rather than what’s not wanted? Instead, Words Players notes, “We prefer most of all plays that are significant and interesting, without off-putting superciliousness.”

Secondly, Driscoll states that, “We largely ignore considerations of age, race and gender in our casting decisions.” While that would be jarring in a professional setting, it’s perhaps somewhat less troubling in a company that’s focused on youth. After all, Lin-Manuel Miranda has noted that he doesn’t mind when schools without Latino students perform In The Heights, because once kids hit college, they’re going to be typed and should have a certain freedom to play any role while very young, though he does ask that they give respect to the culture they portray, and neither paint their skin nor adopt bad accents in doing so. However, Miranda doesn’t condone willfully altering the characters themselves, let alone the story, and neither do I. That choice should be the playwright’s, not the director’s or the artistic director’s.

I’d also suggest that in pointing out his youth emphasis, Driscoll could do better than, “The audience invariably includes a large percentage of young people.  We will prefer scripts that appeal to them as well as to old, non-young people.” I believe most old, non-young people like myself wouldn’t mind at all that the work is for and by the young, were our decrepit state not reinforced redundantly. Honestly, young people play adults all the time in school theatre and community theatre where casts are young, so it’s not really an issue.

But what moves beyond poor communications and into the realm of unacceptable is how Driscoll speaks of how the theatre will handle the work of the very writers he’s soliciting. “Our production of the play is our only ‘compensation’ for its use,” he writes, later emphasizing the point by saying, “We don’t pay for the scripts.” Now if there are youthful writers in the local community who are the peers of the performers, who wish to write and be part of the program, that seems fair, provided no one else is getting paid either. But in a call for submissions that has clearly reached beyond the confines of Words Players and even Rochester. Minnesota, the idea that playwrights should give the company their scripts gratis devalues the work of writers – and if the youthful acting company knows of this, it suggests to them that writers’ words have no value.

Compounding this perspective, Driscoll writes, “While authors are welcome to confer with the directors, such conference is at the discretion of each director.  Student directors will develop their autonomous interpretation and will maintain independent control of each production.  They will in all probability modify settings and dialogue to fit our production situation and their own visions of the shows.  Directors will, in particular, strive to make each play ‘entertaining’ to our audiences and may modify the scripts, accordingly.” This is the behavior of Hollywood studios towards writers, and they pay huge piles of money for that right; in the theatre, while a work is under copyright, the playwright has the final say about what words are spoken, unless they’re inveigled into giving away that right.

Finally, there’s a mission statement at the bottom of the call for plays which reads, in part, as follows: “Merely preserving ‘the way it was done’ is for mummies and pottery shards, not performance art.” I agree, but there’s a difference between fresh interpretations and wholesale vandalism, especially when a play is new and in no way trapped in amber.

Every theatre can set its play selection guidelines as it sees fit, but Words Players seems to be emphasizing the players over the words, and insulting playwrights in the process. The guidelines bother me for the same reason it bothers me when school administrators and professional directors and many others mess with copyrighted texts without permission: because not only is it in most cases legally and always ethically wrong (at least in the U.S.), it’s setting such a disastrous example for the young people who witness this disregard, bordering on contempt, for the writer’s art.

It’s unclear how many plays will be in the Words Players festival, how many people will attend and what they might be charged. But when it comes to compensation, royalties for amateur productions of short works are often little more than the price of a couple of movie tickets and a bag of popcorn, so they’re hardly onerous for any company. But no payment gives a licensee the right to have its way unilaterally with the text in theatre, unless the playwright inexplicably chooses to grant it.

Online, people wrote that they saw this same call last year and spoke out about it, but that it’s unchanged – they were ignored. Facebook and Twitter posts suggest that Words Players response has been, essentially, “if you don’t like it, then don’t submit.” They’ve been removing dissent from their social media. They’re trying to hide the efforts of those that might inform their community of reasonable standards and guide them towards more appropriate behavior.

I’m not writing just on behalf the playwrights – I’m writing on behalf of every single kid in that program. If those kids admire theatre and the arts, then regardless of whether they become professional artists or simply audience members in the future, any adults giving them training need to distinguish between creative rights and wrongs for them now, because they are the path to our future and to the health of the theatre.

In the call for plays by Words Players, Mr. Driscoll is teaching bad lessons (Donna Hoke has made some strong points on that as well). Either he should choose the plays he wants and treat them with respect, or he should write them himself and let the directors and performers have at them if he likes. The latter choice is his right if he is the author. But no one should be asking for plays if they’re not going to produce them with professional conduct and ethical standards, even for only one or two performances with a cast of young people in Rochester, Minnesota. Every play has meaning, as does every production, and Words Players will best serve its community by altering its practices to set the right example.

Update, August 5, 3:30 pm: Yesterday, Doug Wright, president of The Dramatists Guild, sent a letter to Daved Driscoll of Words Players outlining the reasons why playwrights and the Guild were so troubled by the theatre’s play submission guidelines. This morning, Driscoll responded in writing to the Guild, and subsequently did an interview with Playbill discussing their desire to conform to professional and ethical standards. Conversations between those parties will be ongoing, and if welcome, I hope to participate in them as well.

Update, August 7, 2 pm: The conversations online and offline surrounding this topic have, in some cases, metastasized far beyond my intent and perhaps the intent of others who drew attention to this situation. I hope you’ll read my followup post as well, “Writing A Different Script About Respect for Playwrights.”

Note: an earlier version of this post contained two photos of prior productions in the Words Players Original Short Plays Festival. While the photos were made available for download without restriction on the company’s website, I have removed them at the suggestion of several commenters.

Howard Sherman is director of the Arts Integrity Initiative at The New School for Drama.

Students watching The Last Days of Judas Iscariot outside at the Florida Thespian Festival

A theatre scene performed al fresco on a spring Florida evening sounds idyllic. But when Tomas Roldan and Matthew Ferro, juniors at New World School of the Arts High School, took their award-winning scene from Stephen Adly Guirgis’s The Last Days of Judas Iscariot to a plaza outside the Florida State Thespian Festival in Tampa on March 28, they weren’t doing so seeking charm or fresh air. They made the performance choice as a third option after being given two official choices by festival leadership: alter Guirgis’s words or don’t perform at all.

*   *   *

The Florida State Thespian Festival is the largest such gathering in the country. Over a long weekend, high school students gather for talks, workshops and competitions all focused on theatre; in Florida, there are more than 7,000 people in attendance from the large state’s 16 designated districts. This year’s festival included full productions of, among others, Ragtime, The Great Gatsby, Night of the Living Dead, The Threepenny Opera, Violet, Pippin, and Seascape; there was even a concert by The Skivvies, the musical theatre duo known for their talent, their wit and their commitment to performing in their underwear.

Woven throughout the festival are the competitions, where students from schools across the state perform short scenes from a wide range of shows, assembled into groups of competitors so that one set of adjudicators can make decisions on those competing in that defined grouping; the festival is simply too large, and too brief, to allow for an American Idol-type winnowing to a single champion, so each group produces its own winners. Ferro and Roldan received a Critic’s Choice honor for their scene between Jesus and Judas from Guirgis’s play, which Roldan said had been their goal from the time he and Ferro started working on their scene, nearly a year earlier.

The winners of Critic’s Choice in each group are invited to perform in the Critic’s Choice Showcase on the final evening of the festival. Given the number of winners, it is held in segments (or acts) throughout Saturday night in the largest venue used by the festival, the Straz Center’s main hall, seating nearly 3,000. The audience is made up of students, teachers, parents and family. Because competitions are happening on a rolling basis throughout the weekend, the run of the evening is still coming together even as the first performers come to the stage at 6 pm.

*   *   *

It is the policy of the Educational Theatre Association, which runs the International Thespian Society, not to censor the work of writers. The director of the Florida chapter, Linday M. Warfield Painter, echoed that sentiment, saying, “I don’t condone the changing of a playwright’s language any more than the next person.”

In Florida, students competing with scenes that may have potentially controversial or even offensive content are asked to “asterisk” their scenes, noting what some might find problematic. This doesn’t preclude their competing, but serves as notice for those attending the competitive rounds that if they wish to avoid such material, they should step out before the scene is performed. Roldan and Ferro’s scene was duly asterisked for its language – the scene contains iterations of the word “fuck” some dozen times – and for its contemporary portrayal of religious figures Jesus and Judas. The Florida guidelines also require that school principals sign off on the choice of scenes to be performed by their students – except for schools in Miami-Dade County, where a teacher’s approval is sufficient. New World School of the Arts High School is part of the New World School of the Arts, an arts university in Miami affiliated with Miami-Dade College and the University of Florida.

The asterisk system, implemented less than a decade ago partly in response to consternation at the state capitol over content seen at the festival, apparently works well enough in the many small competition rooms, but it becomes problematic, and even irrelevant, at the critics choice showcase. Given the size of the theatre and the numerous brief scenes being performed, the policy is that the audience cannot come and go as they please, so there isn’t a steady attrition of audience once the students they come to see have completed their scenes. If an audience member exits at any point during one of the acts, there is no readmission. So it’s not feasible to offer the audience the opportunity to leave if a scene might offend them, leaving the asterisk process in the dust.

As a result, after winning in their group, the winners have to perform one more time, for adjudicators who will determine whether the scene is appropriate for the large audience. That’s where Roldan and Ferro said they were surprised.

“They knew our piece was asterisked for religious content and for language,” recalls Roldan. “They asked us how severe the language was and we said we drop, we have a few f-bombs in there. Then they told us OK – well we’ll listen to it and tell you what we can do about the language. So we performed the scene again and they told us, ‘Wow, that’s a really great scene, except you guys curse way too much and there’s too many f-bombs in the piece. So you guys have to fully, completely clean it up or you wouldn’t be able to perform it’.”

Ferro, interviewed separately, described the process similarly, saying, “We performed it for the two people who were running the show, the Critics Choice show. And it was almost right then and there that they were like ‘We love the piece, we really do. But the language is an issue.’ From the get go, those two people, Ed and I think it was Amy, said ‘We’re going to fight for you. We want you guys to perform this, but we have to find a way.’ So originally they gave us options like changing the language; then it was how about we perform at the very end and we’re going to caution people about our content. Then it was like, ‘We’re going to roll the dice and we’re going to ask our bosses what they think we can do’.”

Both Ferro and Roldan say they were urged to get dinner while the issue was explored, which they did. “When we came back,” continued Ferro, “they had already spoken with their bosses, the person who was running the whole thing and they told me and Tomas that we could not perform with the language. We had to change it or just go on stage and tell them that we couldn’t.”

In response to an inquiry about what transpired, Painter said, “I wasn’t in the screening room for this event. I had entrusted other volunteers within the organization to do that for me and they had asked, ‘We’ve got 12 f-bombs dropped in the piece.’ I can see why the two teachers screening it said, ‘Guys, can we clean that up a little bit just for this one moment [the showcase].’ I don’t think that has been – I’m positive that’s not the first time that’s happened, that they’ve been asked to clean up language. As far as whether or not a piece – they weren’t asked not to perform. They were given the option, so it wasn’t like, ‘No, you have bad language, you may not perform.’ The option was there.”

Asked to clarify who is in attendance at the showcase, Painter explained that it is not a public event per se. “We have a mixed crowd as far as different communities from across the state,” she said. “We have Christian schools, we have private schools, we have different schools that are from more conservative communities across the state that are all packed into the 2800 people house. That’s really the reason that we do any kind of screening. And the screening is just, that’s all they’re looking for, if it is an asterisked piece, what is it asterisked for? If it’s something that it’s a simple matter of staging that we could restage really quickly without compromising the integrity of the acting and all that. This piece was probably, had I known ahead of time, that the judges did not give us an alternate, I probably would have suggested it not even necessarily be – just to save them the heartache of having to go through that moment. It’s just because of the content, there’s so much of the language issue with it.

“I can tell you that my community I’ve gotten away with all sorts of shows at my school, I’ve done Rent and Threepenny Opera and Cabaret, even my community wouldn’t be OK with a bunch of f-bombs being dropped on stage. It’s a tough one.” At another point, she said, “For that general audience, they were asked to remove at least a few of the f-bombs to take it down from a “rated R” to at least as PG or PG-13 for the general audience. And they refused to do so, which is their prerogative and their right as artists. I respect that, but we couldn’t out it on our stage in front of a general audience.”

Recalling the scene backstage, as she argued on behalf of the students, one of Ferro and Roldan’s teachers, Annie McAdams, recalls one of the adjudicators for the Showcase saying to her, “’Look, it’s just the word “fucking,” we can’t have “fucking” on this stage, it’s too big a house.’ I said, ‘That doesn’t make sense, how come we have asterisks? What if they say we can let the lights up and everyone can leave if they don’t like it?’ And they said, ‘No, we can’t do it. It’s OK in the little rooms, but it’s not OK in this big room.’ Oh, and they also said that the adjudicators know that and they are not supposed to advance material that will be offensive, they are not supposed to do this. Then I said, ‘Well why do we have that policy if it doesn’t matter? Why do we say that they can do this material if in fact they’re not going to get advanced, they’re not going to be considered?’ So how many other students haven’t been considered? And they never knew.”

*   *   *

Michael Higgins was the director of the Florida State Thespians for approximately 17 years (he didn’t recall exactly); his tenure concluded in 2010 and Lindsay Painter’s began in 2013. Last week, he spoke of what was happening with the language in competing scenes when he first took on his role. He had not attended the 2015 Festival.

“At the time it was not regulated as far as any kind of censorship issue,” said Higgins. “Then, as all things do, it became more and more of an issue as students were choosing that adult material and more than that it was getting inordinate positive response by the judges. My feeling at the time was since you were trying to get a monologue performed in two minutes, oddly enough the shock words gave you more punch and power in those two minutes and got you more notice than perhaps a much better written monologue, but it didn’t have such immediate punch that you could get in 90 seconds or two minutes. So unfortunately it moved a tide toward more adult language and away from what was much better material without that.”

After a staffer in the lieutenant governor’s office attended a showcase some 15 or so years ago and voiced language and content concerns to Higgins, as did some letters he received, he said the state board of the Thespians moved to address the issue.

Higgins explained, “At the state level we were told that we could not edit these Miami-Dade kids at all or offer any roadblock to their performing because if we did, that county, which was the biggest participator of the state festival would pull out. Then we thought we needed a merger of these ideas here, how could we accommodate what at that time was a quite liberal south Florida from what’s always been a quite conservative north Florida, especially northwest Florida.

“We weren’t going to get into that game of saying one word’s bad or another situation’s bad. What we were going to do was create an asterisk, essentially putting the responsibility back on the artists, saying, ‘Artist, you want to do something that may offend some people for whatever reason. You have a responsibility before your piece to inform your audience that there is something that maybe some would consider objectionable, give a very brief synopsis of what that may be and then allow time for anybody who chooses not to be part of that to get up and leave the space before you do your material,’ putting the onus on the actual performer.

“That worked well for many, many years. It became a bit of an issue when at big events like closing ceremonies, Critic’s Choice when all the winners were showcased and we were doing these in big theatres, 1,000 seats theatres and then on practical terms when Susie got up to do her monologue and said before it, ‘it contains objectionable material’ that the audience was in no way going to be able to make a choice to leave or stay. So we had to address that concern now. Do you only select Critic’s Choice pieces that are suitable for the quite conservative or do you say to heck with everybody and allow every piece to go and just field the complaints of those who are troubled by it?

“The solution that was found at that time was that I as state director took the responsibility on myself as head honcho and I would watch all of the pieces and I would let the piece know ‘this does contain some objectionable material.’ Do you want to edit out these couple of words or option two, not perform it but still get your notice, awards, prizes and mentions at the festival? But now you as the artists have got to understand that you have an audience that is mixed in their liberal/conservativeness, they do not have the option to exercise their right to exit and not participate in theatre, so in order to preserve the festival there is something greater than your free choice at this adolescent age and you must work for the greater good. That worked for quite a while with some groups deciding I don’t want to be censored, so they didn’t perform yet won all of their awards and bells and whistles, and others saying, ‘oh sure, if it’s a matter of getting rid of the word fuck twice I can say that is not really a big deal to me and I understand that the audience has changed from what happened in a small room of 30 people to an audience now that has 10,000 people with young children and families and all kinds of people.’ The switch is for the audience, just like good old theatre.”

*   *   *

The Guirgis scene was suggested to Ferro and Roldan by one of their teachers, Elena Maria Garcia, an adjunct at New World School with 14 years experience.

Stephen Adly Guirgis

“I love [Guirgis’s] work,” said Garcia, “and I said to the boys, ‘If there’s anybody in this class who will really understand this piece, and just be able to play it, not for the shouting or any of that stuff, because it’s really easy to do that, but for the compassion and the struggle – really what that scene is about between Judas and Jesus. I said you guys can pull this off.’ They struggled a lot but they finally got it and it was just glorious. It was just one of those moments that you go ‘Wow, this is why I teach. This is why I sit in traffic ever day.’ When you see moments like that you go, ‘Damn’.”

Annie McAdams, a faculty member at NWSA, was new to the school and the world of Thespian competition at the start of the current school year. Asked whether she had any initial concerns about the scene being in competition, given the language, she said, “I was not worried about the content of their scene. I wondered if the Thespians would like the content of their scene, and it occurred to me that it might be a hard piece to win a festival with because of the content. Not only that it had profanity but also the subject matter – that it’s Jesus and Judas arguing. I moved to Florida from New Jersey which is a blue state. Everyone feels that Florida is liberal, but I’ll tell you, it’s not as liberal as the northeast. So yes, it occurred to me that they might not win with it, but I knew that they could compete.”

When asked about their awareness of any guidelines about content or performance, both Garcia and McAdams cited the asterisk rule. McAdams said she didn’t know of more, while Garcia said she knew there were some for the state festival, but deferred to McAdams as the official head of the troupe.

Asked about this, Painter cited the following guidance on the Florida Thespian website:

The board wishes to restate its position that the sponsor and student should choose material that they would feel comfortable sharing in front of their peers and their school.  The material chosen should match the community standards of your school district and your town!  There should NEVER be an attempt to choose material for competition that you would “never be able to do on your own stage.”   There is no shortage of prize-winning, world-class drama that would be acceptable in any high school in the state!

To this end, you will find the following statement in the registration for state.  Both you, the sponsor, and the principal* or his/her designee are asked to sign the following:

The board requests that you verify that each piece which will be performed representing your school has been screened by the sponsor and endorsed by the principal or his/her designee.  We ask you to certify that each piece meets your community standards and the standards set by your school and your school board. We also understand this caveat will not guarantee that all material presented will fit the guidelines of all schools. To that end, we will continue to use the asterisk as a further means of denoting material which might be considered sensitive for some viewers. 

*NOTE: In Dade County the teacher, not the principal will be asked to certify that the piece meets community standards.

Set off separately, the statement continues:

Florida State Thespians does not pre-approve the material which is presented at this conference. The individual director is the ultimate judge of what is suitable for his/her students to perform for their home school audience. They are also responsible for placing the asterisk on any of their entries which might be questionable in nature. All material performed at this conference has been approved by the principal of the originating school. That approval indicates that he/she attests that the pieces submitted from that school would be suitable for general audience presentation at the school from which it came.

Even with these warnings and precautions, we realize that some of the more mature material may trouble some of our audience.  We have endeavored to forewarn by the use of the asterisk and, at the Closing Ceremony, by identifying edgy material prior to its presentation. Should any member of our audience be offended by any performance, we encourage them to voice their concern to the State Director who has been directed by the State Thespian Board to forward those letters of complaint to the administrator involved. The administrator who approved the material in the first place is the person who should be able to defend his/her choice.

We cherish the right to free expression, but we also understand that, as educators, we have a responsibility to use that freedom wisely.  We have tried to differentiate between words which might offend and ideas which might make the audience uncomfortable. Theatre, at its highest, may create dissension and make people examine their beliefs. Blasphemy and blatant sexual references are not suited to this conference. We have encouraged everyone to be sensitive to them starting at the district level. Discussion of contemporary issues and problems are the stuff of real theatre and deserve a place on our stages. Community standards differ widely in our state and this is a thorny issue we do not take lightly. As theatre educators, we cannot solve the problems of society by refusing to give a platform where those problems can be examined in an intelligent and forthright manner. We feel giving audience members the opportunity to challenge some of the choices local administrators make will give a greater voice to everyone in our large and extremely diversified audience.

Julie Cohen Woffington, executive director of the Educational Theatre Association said that there are no such restrictions on the national festival. As for guidelines for each state group, she wrote, “We have suggested guidelines for the individual events program that are available online, but they do not refer to choice of material or language.” Asked about any policy regarding the alteration of texts for competition or performance at the national festival, Woffington replied, “We have a statement on Freedom of Expression on our website. We also have information in the individual events guidelines that require securing performance rights.”

*   *   *

Returning to the night of the showcase, Roldan describes his reaction at the Sophie’s Choice he and Ferro had been given: remove the language or forego performing.

“At that moment, I was kind of disappointed,” Roldan said. “I was pretty sad. It was heartbreaking to hear that we would have to clean it up or not perform. The thing is, we always thought that the words were put in there for a purpose and they do have a meaning in the piece. So you might be able to change a few but even if you do the piece might lose some of its importance and some of its value.”

Asked if they had given any thought to changing the piece, Ferro said, “I was considering it. Tomas was calling Garcia – we were both shocked a little bit. So he called Garcia and I was thinking maybe we should change it. I just wanted to perform it. It was Tomas, who after he hung up with Garcia, who turned to me and said I guess we can’t perform it. He had already kind of made the decision. That’s how me and Tomas work, we kind of take turns making big things like that and I agreed with him completely. I don’t even know what I was thinking. You’re right, we shouldn’t perform it.”

McAdams recalls asking the students, “Are you sure you don’t want to just change the language? So that you can perform? I knew they were so proud, and I knew they had worked so hard, and honestly I didn’t think they had a chance of winning really because of Jesus and Judas, more than the profanity.  So I really wanted them to have that experience of performing in front of their peers on that big stage. They said absolutely not.”

With McAdams’s help, Roldan and Ferro crafted a brief statement, which they read from the stage during the Showcase instead of performing their scene. It said:

Today we will not be performing a duet scene from The Last Days of Judas Iscariot by Stephen Adly Guirgis. We were thrilled to be awarded the Critic’s Choice for our category. We chose a scene we love by an artist we respect. The scene is asterisked for language and content. Tonight Florida State Thespians is asking us to alter our scene by removing the offensive language. We feel as young artists that this language is an integral part of the author’s intention in the scene. Rather than censor our scene, we have chosen to perform our piece outside. In 15 minutes we will be outside by the steps to perform. Please join us to support Art.”

*   *   *

I’d like to make some observations about what transpired in Florida two weeks ago.

It is clear that the state organization does have guidelines for performances at the showcase which differ from the guidelines that apply to competing works. It is certainly unfortunate that Garcia and McAdams were either unaware or not fully aware of them. While Lindsay Painter admitted to me that, “I don’t think it’s terribly easy to find and obviously after this conversation and this issue this year, we will make sure that’s easier to locate,” the way events unfolded for Roldan and Ferro might have been anticipated had they seen that language or been advised of it. That said, it’s worth noting that according to the young men, at no point in the adjudication process, either at their district level (where they did not receive an award and so were not eligible to perform) or the state level did anyone affiliated with the competitions make Roldan and Ferro aware of the potential restrictions on their performance until after they’d won and were at the final screening.

But perhaps it’s a good thing that things fell this way, because it reveals the strain of censorship that does affect the public performances at the Festival. Deploying language about “blasphemy and blatant sexual references” in performance, it is clear that the Florida festival is exercising judgment over what is permissible and what isn’t, and doing so rather late in the game to boot. There is no way of deciding definitively what is or is not blasphemy or blatant sexuality, even if you’re willing to grant that such a restriction is appropriate; it’s always going to be a judgement call. It’s worth noting that while a synonym for “blasphemy” is “obscenity,” “blasphemy” in its primary usage refers to “impiety” and in some cases irreverent behavior towards anything held sacred, not simple cursing. In the scene from Guirgis’s play, the word “fuck” or “fucking” is used as an interjection or adjective; at no time does it refer to a sexual act.

If in fact scenes that aren’t “appropriate” for the final showcase are being scored poorly to avoid the sort of conflict that arose over the scene from Judas Iscariot, that’s a black mark on the entire adjudication process. Not only did McAdams say that she had been told this was the case, but let’s also recall Painter’s slightly ambiguous, halting, “This piece was probably, had I known ahead of time, that the judges did not give us an alternate, I probably would have suggested it not even necessarily be – just to save them the heartache of having to go through that moment.” That can be construed to corroborate what McAdams heard about judging, although it stops short of being explicit.  [Updated: please see addendum below with Lindsay Painter’s clarification of position on the issue of instructions and process for adjudication.]

I should note that late in our conversation, Painter introduced the idea that the reason Ferro and Roldan were not permitted to perform was because of how they behaved when given their choice, suggesting they had “started harassing other troupes and other humans.” I suspect that teenagers hearing such news for the first time may well have acted out in some way, though Ferro denied it and McAdams said she saw no such behavior and was told of no such behavior when she arrived backstage. I was surprised when Painter raised it 22 minutes into a 29 minute conversation; if it was central to the decision, it seems it should have been brought up as a factor much sooner.

Because of the Festival’s policy of placing the responsibility for the scenes chosen on school officials, with Miami-Dade having a different policy than the other districts, there has always been the potential for crossing some invisible line as Ferro and Roldan did. But by actively urging them to alter the author’s language, the festival applies censorship pressure as a prerequisite for performing some winning “asterisked” work, and based on the accounts from both Painter and Higgins, this is common practice. That is a poor example to set for students, teachers or parents – the work of authors cannot and should not be altered to meet the perceived need of an audience. That the festival has codified such actions in order to defend the festival against those who would dictate content to all is troubling, to say the least.

I will acknowledge that the State Festival organizers have challenges, not least the huge scale and popularity of their successful event. More importantly, they grapple with the reality that few states or even individual towns have unanimity about what is blasphemous, blatantly sexual, or obscene, and they’re trying to maintain an event statewide. But I think it’s fair to say that even the most liberal school has a sense of what is appropriate for their students, and by leaving the content, and quite explicitly any blame for that content, to the schools, the Florida festival must find a better solution to its current practice of altering content and staging to suit a homogeneous audience in an effort to minimize complaints. Perhaps “asterisked” scenes should be adjudicated together and have a defined portion of the showcase evening, while the self-identified inoffensive material is gathered separately at all stages. In that way, students whose schools permit them more latitude will be assured of both fair judging and the opportunity to perform. But altering a playwright’s words violates copyright law, and doing so in order to placate sensibilities remains censorship, no matter how it is rationalized.

I have written before that I believe that school theatre is first and foremost for the students – not for their parents, their siblings or the general public. Students should have the opportunity to take on challenging work, contemporary as well as classic work. If that work contains “strong” language but is within the education parameters of their school, so be it. “Protecting” the students, or an audience, from words or ideas should not drive education or school-related activities.

*   *   *

Ferro and Roldan both cite the idea of performing their scene outside as having come from one of the same adjudicators who gave them the “censor or don’t perform” ultimatum, saying he seemed genuinely sympathetic to the decision they faced. I asked them both how the impromptu performance went.

Roldan said, “Well at that point we were all adrenaline, I would say, especially Matthew. He really got on board and once he got on board he was completely on the bull and he was just going at it. We just performed it, a whole lot of people came and it was a great experience. The scene itself, I felt that while we did it outside, it wasn’t the best we did it, because at that point we were doing it now out of frustration and we had all those emotions inside of us, so I felt that maybe made us deviate from the scene. It still came out great, but not as good as it came out when we showed the piece for the first time in the competition.”

Ferro also felt the scene lost something. “I gotta be honest, it wasn’t the same,” he said. “For myself, I wish it hadn’t gone down that way because I feel like the whole point was kind of lost, the whole point of just doing the scene, the beautiful scene, was lost. I wouldn’t say it was because of Tomas. I kind of blame myself because I was so amped up on trying to get the crowd to listen to me and I was very energetic, I don’t think I was able to calm down and perform the piece like we’d rehearsed a thousand times. I don’t know. For me, it’s sad that the piece wasn’t as good as we had done it a million times before.”

Garcia viewed it very differently. “I’m thinking, OK, because there’s a massive dance where these teens go to right afterwards to celebrate the end, I said to them, I think you might get a few [people to watch]. I don’t think you’ll get that many kids because they’ll want to go to the dance. How wrong was I? There were over 200 kids standing on the lawn in their beautiful gowns and high heels going into the soil. They didn’t care, they were all there in silence watching these boys do their piece. It was right out of a movie. I was like, I can’t believe, they will never forget this. This is such a wonderful moment right now. I just thought Guirgis would be, ‘My god, they’re still hearing my work.’ These kids are anti-censorship and they kept hugging the boys and saying, ‘Thank you so much for doing the right thing. This is what its about – we’re artists and we shouldn’t have to change our work.’ It was beautiful.”

Though the young men refused their achievement prizes that night, McAdams brought them home, suspecting they’d ultimately want them, and both Ferro and Roldan expressed regret that they hadn’t ultimately accepted the recognition that evening, that they hadn’t respected the Festival more even at a moment of crisis.

When asked whether she might recommend different material for students in the future as a result of what transpired, McAdams said, “I guess there would be a discussion I would have with the kids: ‘Look, if you want to win, here are the parameters you need to be in.’ But as a teacher, I would say, ‘Pick material you respond to, pick material that you are passionate about. Pick writing that’s good’.”

Ferro, asked if he had known all that was going to happen, would he have chosen a different scene, said simply, “No, I really wouldn’t have.”

I’m pleased that Ferro and Roldan are juniors, not only because they will have the opportunity to compete and perhaps win one more time (Garcia says she’s pointed them towards True West) but because it gives the Florida Thespian Festival the opportunity to right a wrong – and I believe it is a wrong, regardless of the forewarning on their website. Roldan and Ferro should be given the opportunity to perform their scene from The Last Days of Judas Iscariot on the main festival stage next year, all “fucks” intact.

And, of course, they still have a shot at the National Festival in June. I’m rooting for them.

*   *   *

Addendum, April 15, 3:50 pm: Upon reading this post, Lindsay Painter asked me to include the following information regarding the adjudication process.

The judges are not encouraged or told to be concerned about the asterisks when providing a score and feedback. In fact, when I meet with them each morning of the festival, it is one of my main points I make. The students of Florida should be receiving honest non-bias feedback from the professionals we hire to adjudicate. To suggest otherwise, in regards to how our organization has been handling the showcase is faulty. The judges have nothing to do with the showcase. They give us their picks for who the best in the room was, (all regards to content aside) and that makes-up the list for showcase. But, they have nothing to do with our asterisks system or the system we’ve had in place for preparing the showcase presentations.

Painter further requested that the following distinction be made, and because I write in the interest of constructive dialogue on these issues, I share it as well:

This is a Theatre Festival, not a competition. There is no prize, no winner. Each performance is provided an assessment. We showcase one piece from each room as a way to celebrate the work the students of Florida have brought to the festival. It’s not a thing to win or not win. And if they are not able to perform, an alternate does. This is the spirit of the festival. There is no placing or winning of the Florida State Thespian Festival. Only of presenting, receiving valuable feedback, and celebrating the work of the student artists. These students were not impacted in any way in the feedback or rating they received by the judges. They were given their superior. That is the highest honor they, or any student at the festival, can hope to achieve.

Correction, April 15 3:45 pm: This post originally stated that Michael Higgins was Lindsay Painter’s direct predecessor. That was incorrect, and is now accurately reflected above.

Correction, April 16, 11:30 pm: This post has been corrected to reflect that New World School of the Arts is affiliated with the University of Florida, not Florida State University, as previously stated.

Full disclosure: I delivered a keynote and conducted a workshop on the subject of school theatre censorship last summer at the Educational Theatre Association’s annual teacher’s conference. EdTA paid me an honorarium and provided me with round-trip travel to Cincinnati and accommodations while there.

Howard Sherman is director of the Arts Integrity Initiative at The New School for the Arts.

Hannah Cabell and Anna Chlumsky in David Adjmi’s 3C at Rattlestick Theatre (Photo: Joan Marcus)

After nearly three years during which playwright David Adjmi was prevented from authorizing any productions of, or the publication of, his play 3C, a dark parody of Three’s Company, he has emerged as the victor in his legal battle with DLT Entertainment, which sought to silence the play, charging copyright infringement. Adjmi’s assertion of fair use was confirmed in the judgment.

Quoting from the ruling by Judge Loretta A. Preska, Chief United States District Court Judge in the Southern District of New York:

“Adjmi wishes to authorize publication of 3C and licensing of the play for further production and therefore brings this action seeking a declaration that 3C does not infringe DLT’s copyright in Three’s Company. Adjmi’s motion is GRANTED…”

The 56-page ruling goes on to summarize the play in detail, and then moves to discussion of the ruling, including:

“There is no question that 3C copies the plot premise, characters, sets and certain scenes from Three’s Company. But it is well recognized that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s. . .imagination.” Campbell, 510 U.S. at 581. The “purpose and character” analysis assumes that the alleged parody will take from the original; the pertinent inquiry is how the alleged parody uses that original material.

“Despite the many similarities between the two, 3C is clearly a transformative use of Three’s Company. 3C conjures up Three’s Company by way of familiar character elements, settings, and plot themes, and uses them to turn Three’s Company’s sunny 1970s Santa Monica into an upside-down, dark version of itself. DLT may not like that transformation, but it is transformation nonetheless.”

In conclusion, the judge wrote:

“The play is a highly transformative parody of the television series that, although it appropriates a substantial amount of Three’s Company, is a drastic departure from the original that poses little risk to the market for the original. The most important consideration under the Section 107 analysis is the distinct nature of the works, which is patently obvious from the Court’s viewing of Three’s Company and review of the 3C screenplay-materials properly within the scope of information considered by the Court in deciding this motion on the pleadings. Equating the two to each other as a thematic or stylistic matter is untenable; 3C is a fair use “sheep,” not an “infringing goat.” See Campbell, 510 U.S. at 586.

“This finding under the statutory factors is confirmed and bolstered by taking into account aims of copyright, as the Court has done throughout.”

Congratulations to Adjmi, to his attorney Bruce E.H. Johnson of Davis Wright Tremaine, to the Dramatists Guild and the Dramatists Legal Defense Fund for their amicus curiae brief in support of Adjmi, and everyone who participated in this fight for authors’ rights and creative freedom.

So, now my question is, what company will be the first to produce 3C now that they’re allowed to at long last, and when can I come and see it?

Howard Sherman is director of the Arts Integrity Initiative at the New School for Drama.

Hannah Cabell and Anna Chlumsky in David Adjmi’s 3C at Rattlestick Playwrights Theater (Photo: Joan Marcus)

Seen any good productions of David Adjmi’s play 3C lately?

Sorry, that’s a trick question with a self-evident answer: of course you haven’t. That’s because in the two and a half years since it premiered at New York’s Rattlestick Playwrights Theater, no one has seen a production of 3C because no one is allowed to produce it, or publish it. Why, you ask? Because a company called DLT Entertainment doesn’t want you to.

3C is an alternate universe look at the 1970s sitcom Three’s Company, one of the prime examples of “jiggle television” from that era, which ran for years based off of the premise that in order to share an apartment with two unmarried women, an unmarried man had to pretend he was gay, to meet with the approval of the landlord. It was a huge hit in its day, and while it was the focus of criticism for its sexual liberality (and constant double entendres), it was viewed as lightweight entertainment with little on its mind but farce and sex (within network constraints), sex that never seemed to actually happen.

Looking at it with today’s eyes, it is a retrograde embarrassment, saved only, perhaps, by the charm and comedy chops of the late John Ritter. The constant jokes about Ritter’s sexual façade, the sexless marriage of the leering landlord and his wife, the macho posturings of the swinging single men, the airheadedness of the women – all have little place in our (hopefully) more enlightened society and the series has pretty much faded from view, save for the occasional resurrection in the wee hours of Nick at Night.

In 3C, Adjmi used the hopelessly out of date sitcom as the template for a despairing look at what life in Apartment 3C might have been had Ritter’s character actually been gay, had the landlord been genuinely predatory and so on. It did what many good parodies do: take a known work and turn it on its ear, making comment not simply on the work itself, but the period and attitudes in which it was first seen.

Enter DLT, which holds the rights to Three’s Company. They sent a cease and desist letter to Adjmi back in 2012 claiming that the show violated their copyright; Adjmi said he couldn’t afford to fight it. Numerous well-known playwrights wrote a letter in support of Adjmi and the controversy generated its first wave of press, including pieces in The New York Times and Wall Street Journal. Over time, there have been assorted legal filings by both parties, with another wave of press appearing last year just about this time, when Adjmi sued for the right to reclaim his play for production, with commensurate press coverage once again from the Times and Studio 360, among others.

Why do I dredge this all up now? Because the bottom line is that DLT is doing its level best to prevent a playwright from earning a living, and throwing everything they can into a specious argument to do so. They say, both in public comments and in their filings, that 3C might confuse audiences and reduce or eliminate the market for their own stage version (citing one they commissioned and one for which they granted permission to James Franco). They cite negative reviews of 3C as damaging to their property. And so on.

But while I’m no lawyer (though I’ve read all of the pertinent briefs on the subject), I can make perfect sense out of the following language from the U.S. Copyright Office, regarding Fair Use exception to copyright (boldface added for emphasis):

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

As someone who has gone out on a limb at times defending copyright and author’s rights, I’d be the first person to cry foul if I thought DLT had the slightest case here. But 3C (which I’ve read, as it’s part of the legal filings on the case) is so obviously a parody that DLT’s actions seem to be preposterously obstructionist, designed not to protect their property from confusion, but to shield it from the inevitable criticisms that any straightforward presentation of the material would now surely generate.

Rather than just blather on about the motivations of DLT in preventing Adjmi from having his play produced and published, let me demonstrate that their argument is specious. To do so, I offer the following exhibit from Mad Magazine:

What’s fascinating here is that Mad, a formative influence for countless youths in the 60s and 70s especially, parodied Three’s Company while it was still on the air, seemed to already be aware of the show’s obviously puerile humor, was read in those days by millions of kids – and wasn’t sued for doing so. That was and is a major feature of Mad, deflating everything that comes around in pop culture through parody. The fact is, Adjmi’s script is far more pointed and insightful than any episode of Three’s Company and may well work without deep knowledge of the original show, just like the Mad version.

The most recent filing in the Adjmi-DLT situation comes from the Dramatists Legal Defense Fund, an offshoot of The Dramatists Guild. Like all of the filings in this case, it’s very informative about copyright in general and parody in particular, and it spells out the numerous precedents where the use of a prior work was permitted under fair use, with particular attention to the idea that when the new work is transformative – which 3C surely is – it is permitted (read the complete amicus curiae brief here). In addition to their many examples, I would add from my own misspent youth such works as Bored of the Rings, a 1969 book-length parody of Tolkien by some of the people who would go on to create the National Lampoon, where incidentally, DLDF president John Weidman exercised his own comic skills) and Airplane!, which took its plotline (and punctuation mark) of a poisoned airline crew directly, uncredited, from the 1957 film Zero Hour! More recently, the endlessly touring Potted Potter has successfully run without authorization, though clearly derived from the works of J.K. Rowling and prior to any authorized stage interpretation.

It’s been months since there have been filings for summary judgment in the case (August 2014, to be precise), and according to Bruce Johnson, the attorney at Davis Wright Tremaine in Seattle who is leading the fight on Adjmi’s behalf, there is no precise date by which there will be a ruling. Some might say that I’m essentially rehashing old news here, but I think it’s important that the case remains prominent in people’s minds, because it demonstrates the means by which a corporation is twisting a provision of copyright law to prevent an artist from having his work seen – and that’s censorship with a veneer of respectability conferred by legal filings under the umbrella of commerce. There may be others out there facing this situation, or contemplating work along the same lines, and this case may be suppressing their work or, depending upon the ultimate decision, putting them at risk as well.

We don’t all get to vote on this, unfortunately. But even armchair lawyers like me can see through DLT’s strategy. I just hope that the judge considering this case used to read humor magazines in his youth, which should provide plenty of precedent above and beyond what’s in the filings. 3C may take a comedy and make it bleak, but there’s humor to be found in DLT’s protestations, which are (IMHO) a joke.

P.S. I don’t hold the copyright to any of the images on this page. I’m reproducing them under Fair Use. Just FYI.