If you’re under 50, you likely aren’t familiar with the work of comedian Bill Dana. His most famous creation, a character seen on an array of television shows in the 1960s – Jose Jimenez – has been largely forgotten, especially since Dana stopped playing the character (save for one exception) in 1970. But the Jimenez character was a comedy phenomenon, appearing on Dana’s comedy albums in addition to his many sitcom and variety show appearances. Fans of the movie The Right Stuff may remember one of the Mercury astronauts repeating his catchphrase – “My name Jose Jimenez” – while in the flight capsule, a detail straight out of Tom Wolfe’s non-fiction book, prompted by sketches in which Jimenez was a reluctant astronaut.
Dana stopped performing the character 47 years before he passed away in 2017, because of lobbying from Hispanic groups who found the slow-talking, slow-witted Jimenez to be a deeply offensive stereotype. Jose Jimenez would be joined in oblivion a year later by the commercial pitchman Frito Bandito, consigned to the same fate as Jimenez for the same reason: being a negative stereotype, in this case a rootin’-tootin’ shoot ‘em up villain with a taste for Frito-Lays’ corn chip snack and a theme song that included the refrain, “I love Frito Corn Chips, I love them I do/I love Frito Corn Chips I’ll get them from you”. The Frito Bandito was as genuinely threatening as the Hamburglar and as authentic as Eli Wallach’s character in The Magnificent Seven, which is to say not at all.
The now rarely seen or heard Speedy Gonzalez
It would take much longer, until 2002, but when the Cartoon Network acquired the rights to the Warner Brothers cartoon family, they withdrew the Speedy Gonzalez cartoons from TV for yet again the same reason, stereotyping. For trivia fans it’s worth noting that both Speedy and the Frito Bandito were voiced by the famed Mel Blanc. Speedy, for those unfamiliar with him, was regularly portrayed as an anomaly in his Latinx community, with the rest of the rodent characters portrayed as slow talking and slow moving.
So with the mass media relegating the afore-mentioned Latinx stereotypes to archives years ago, it’s disconcerting to learn that a small, family-operated theatre north of Salt Lake City, the Pickleville Playhouse, has been producing a series of original shows over the past decade featuring the leading character of “Juanito Bandito”, written and portrayed by the Caucasian actor TJ Davis, sporting a black wig, sketchy accent and absurd handlebar mustache. Among the shows featuring this character have been, in chronological order, The Hanging of El Bandito, Bandito Rides Again, Who Shot Juanito Bandito?, The Hanging of El Bandito Reimagined, Bandito Rides Again Reimagined, Who Shot Juanito Bandito Reimagined, Juanito Bandito in the One with the Monkey, Ready, Fire, Aim starring Juanito Bandito and Love & Death vs El Bandito. Oh, there’s also the seasonal favorite, Juanito Bandito’s Christmas Carol.
In the peculiar ways of the internet, word of Davis’s character has recently begun popping up in theatrical feeds, inevitably in conjunction with charges of stereotyping. The tweets were most likely prompted by a joint letter, originated by Diana Burbano, dated February 9, from some 40 theatre artists to The Grand Theatre in Salt Lake City, a large venue in Utah’s capital where one of the Bandito shows recently played. Davis initially responded in a sustained blog post, since withdrawn, in which he defended the character, saying it wasn’t a stereotype because the character’s accent is so poor. His shorter, revised post reads, in part:
Two days ago I wrote a post trying to explain some of my points of view regarding the Bandito character. I’ve chosen to take it down because even though I thought it might help those who had expressed concern (people who have never actually seen what we do), it seems now that a blog post is not the appropriate avenue.
I am absolutely interested in doing the right thing in every aspect of my life. I believe that racial stereotyping is a big problem in the entertainment industry today. I don’t want to be a part of that problem, and I do not believe that the Bandito productions are a part of that problem.
JB is not a stereotype of any race or culture. I do not darken my face with makeup nor have I ever done so in order to make him appear to be Latino. Bandito has been Spanish (from Spain) from the beginning.
In the post that remains, Davis seems to suggest that his character, who he claims is from Spain, isn’t making fun of Latinos. While the character’s iconography seems drawn from The Magnificent Seven and its ilk, he’s really splitting hairs. He may believe that he’s not making fun of Latinos, but even if we were to grant him that, he does appear to be making fun of Hispanics. Yes, there’s a distinction, but for the purpose of addressing stereotyping, it’s a fairly academic one. A feature story in the Herald Journal of Logan, Utah notes that the character had its origin when, “Davis, who had seen first-hand in Guatemala how non-native speakers ‘butcher’ Spanish decided to try something different. ‘I came in one day and said, ‘What if I do this with a Spanish accent?’”
TJ Davis as Juanito Bandito (screenshot via YouTube)
Davis notes that he doesn’t darken his skin, but seems unaware that one need not employ makeup to deploy brownface, blackface, yellowface and their ilk. His self-admittedly poor accent is more than enough of a tipoff as to which ethnic group he’s referencing; one of his Instagram posts includes the ad line, “We’re adding a chow. Jou’re welcome.” The open captioning on a video from one of the productions features the dialogue, “You chooted at him because he lunched at you?” Pure Jose Jimenez material.
He further protests that he is being criticized by people who have not seen what he does. While it’s probable that the rumble of unhappiness is coming predominantly from people who haven’t made it Utah to see the character in action, there’s plenty of video currently online to get a sense of what the portrayal is like. Though Davis’s earlier post indicated that he had Latino friends who told him the character was fine, that’s unlikely to be the prevailing opinion among those he doesn’t already know, as confirmation bias in his existing circle won’t be a factor.
Davis says he wants to do the right thing in every aspect of his life, writing, “Our mission in everything we do is to create fun, clean family entertainment to help our communities create lasting memories with those they love.” Let’s take him at his word, with the assumption that his communities include Latinx and Hispanic patrons, or potential patrons. Perhaps he’s unfamiliar with Gonzalez, Jimenez and the Frito spokes-cartoon, since they’ve been out of circulation for almost a half century.
Mr. Davis, the right thing is to not make a career of a character that is instantly recognizable as a stereotype, even if he is intentionally a badly drawn version of one. Utah may be a state that is largely Caucasian – as of 2016, per the US Census Bureau, the category of “White alone, not Hispanic or Latino” represented 79% of the Utah population, the next largest category is “Hispanic or Latino” at 14%. But that’s not an excuse for ignoring the minority for the amusement of the majority. In fact, it might argue for even greater sensitivity, since the families that attend the Pickleville shows surely don’t want to be teaching the lesson that it’s fine to laugh at people who are different than you, especially when they are in the minority and overmatched by the dominant ethnicity. Even when intended benignly, brownface is an offense. Your saying the character is not a stereotype doesn’t make it true.
Some might see it as unfair to impose this sensibility on a small family playhouse, but it seems that Juanito Bandito has been expanding his territory. Davis’s Instagram account promotes recent holiday shows featuring the character playing beyond his home of Garden City, with gigs at the Eccles Theatre in Logan and the Grand Theatre in Salt Lake City. There have also been student performances for elementary schools, indoctrinating children into the harmless good fun of ethnic ridicule at the earliest opportunity.
Sure, some Utahns may mourn the mothballing of an apparently beloved character, but there are those who miss Speedy and Jose as well. Letting go of the past is part of growth and progress, and it seems high time for the Pickleville Playhouse to advance past humor out of the 1960s, especially since such contemporary musical styles as rapping are already part of their performances. After all, if Davis is committed to not offending the Latinx community, in Utah and beyond, he probably doesn’t wan’t to upset the Hispanic community either.
As investigations into political tampering with the 2016 US election on Facebook have made headlines and perhaps spurred corporate introspection, one would hope that the company is in the process of tightening its ad controls. Given the huge importance of social media company in the world’s communications, we can ill afford to have false information circulating that undermines democracy – or that supports racist and hate-filled positions.
But even if Facebook is placing ads under more scrutiny, it’s still pretty difficult to understand what led them to ban ads for a production of Sondheim and Weidman’s musical Assassins, currently underway at NextStop Theatre in Virginia, a professional non-Equity company. In the behemoth of Facebook, a single ad may well just have gotten caught up in the gears, but for NextStop, it denies one of their primary advertising platforms, one of the very few where they can deploy video.
Here’s the spot in question:
Matthew Thompson, managing director of NextStop, said that when they first deployed the ad, it was on their event page for the production, distinct from their company page. They did pay for a sponsored post, and at that time Thompson said that, “There were no issues with it. It was posted and approved almost instantaneously.”
However, when the company posted a slightly revised version, simply to accommodate a different aspect ratio for the video and tighten up the length, they looked carefully at the advisories about ad content. Upon submission, the ad resulted in a response from Facebook that noted “ad sets that use targeting terms related to social, religious or political reviews may require additional review” and also saying that “it looks like your ad may be for housing, employment or credit opportunities.”
None of these factors really came into play with the Assassins ad, so NextStop opted to take Facebook up on their offer of a manual review, since that would show that they hadn’t run afoul of any of these concerns. But instead, that yielded the denial of approval, but on the grounds that, “Your ad can’t include images that depict a person’s body as ideal or undesirable.”
Facebook’s inconsistencies here are considerable. As it happens, the Assassins ad is composed entirely of still images – many of which have been posted to Facebook by the company without complaint. In fact, the video itself hasn’t been removed from Facebook – but the company isn’t permitted to boost it to a broader audience by using it as an ad, meaning it is only going to be seen if someone seeks it out on their page, or turn up in people’s feeds through organic reach, known to be fairly limiting for those with company pages that don’t advertise.
Does the Assassins ad have an attractive woman in it? Yes, Mackenzie Newbury, who plays The Proprietor. Is she idealized? That’s a judgment, but the ad doesn’t present her as a paragon of anything, except perhaps as a representation of America and Americana, with her red, white and blue outfit. There is a quick tight glimpse of her lips, a flash of thigh, but they’re not particularly salacious; some might rightly view this as objectification – and if that is being eradicated from Facebook then it must be applied consistently. But certainly Facebook runs more expensively and slickly produced ads with attractive women in them.
Arts Integrity has reached out to the press office at Facebook for an explanation of what has transpired with the NextStop ad, and received a response saying that the issue was being explored and they would respond as soon as possible. The best possible response would be for them to say that upon further review, the NextStop ad has been cleared.
Over the years, social media platforms have often taken the position that they are merely conduits, and not responsible for what is posted unless something is clearly illegal. But now that it has been shown how the services can be manipulated, it’s important that ad content is vetted and content complaints are investigated. But they also need to take care that in policing their house and addressing violations of their terms of service, they’re not preventing individuals and companies that rely on them for their livelihoods are getting caught up in nets meant to capture bad actors, and not good theatre companies.
Update, October 20, 4 pm: Three hours after Arts Integrity’s initial e-mail to Facebook’s press office, two hours after Arts Integrity was informed that the issue of the NextStop ad for Assassins would be looked into, and one hour after this post went live, NextStop was notified that their ad had been accepted and would begin to run.
There was no further response to Arts Integrity about the issues that led to the ad being blocked.
Update, October 21, 7 am: Last evening, shortly after 7 pm, NextStop was again notified by Facebook that its ad has been disapproved.
This follows a 6:30 pm e-mail from Facebook’s PR department to Arts Integrity noting that the ad had been approved, and that on Monday, the press contact could “explain what has happened here.”
Update, October 22, 2017 11 am: Following yesterday’s disapproval, Matthew Thompson discovered, on Facebook’s desktop interface, a more detailed explanation of why the ad had been denied. It read:
“Your ad wasn’t approved because ads should clearly reflect the product or service being advertised rather than focus on a body part (ex: teeth, abs, acne). Using images of zoomed-in body parts typically evokes a negative reaction from viewers. Learn more about our Advertising Policies.
How to fix: We suggest promoting your product or service without using a zoomed-in body image.
If you think your ad follows our Advertising Policies, you can appeal this disapproval.”
Thompson responded as follows, using the “Appeal Button”:
While the ad fleetingly (less than 3 seconds out of 30) uses stylized zooming to capture the actress’ engrossed facial expression and details of the sparkles on her costume, the focus of the ad is theatre seats and playing with a toy gun. This ad clearly reflects the product being advertised: a show about America set in a carnival shooting gallery.
After a short time, he was once again notified that the ad was approved.
On Sunday morning, October 22, Thompson heard from Facebook once again, to reaffirm the approval of the ad, as follows:
Thank you for notifying us about your ad disapproval. We’ve reviewed your ad again and have determined it complies with our policies. Your ad is now approved. Your ad is now active and will start delivering soon. You can track your results in Facebook Ads Manager. Have a great day!
Given the carnival atmosphere of the ad in question, one might wish to simply chalk this up as a comedy of errors. But it is a microcosm of the challenges of having information consolidated within the control of too few hands, especially when the ability to communicate is arbitrarily or erratically denied. While this instance pertains to arts marketing, across the massive universe of Facebook, it’s impossible to know what else might be getting censored, and how such situations are – or are not – being resolved.
This summer, when an attorney for actor James Franco sent New York’s People’s Improv Theatre a cease and desist letter regarding the venue’s planned presentation of the play James Franco and Me, PIT’s response was to cancel the booking. At the time, Kevin Broccoli, author and performer of JF and Me had no legal representation, and so the stories that emerged were that Franco had successfully shut down the production, as highlighted in numerous media outlets, including The New York Times and Rolling Stone.
Among the organizations that stepped in to assist Broccoli were the Arts Integrity Initiative and the Dramatists Legal Defense Fund, and in August, DLDF secured the pro bono services of the law firm Davis Wright Tremaine to represent Broccoli in an effort to insure his play could be seen. Yesterday, DWT responded in writing to Thomas Collier, the attorney at Sloane, Offer, Weber and Stern, who had sent the original cease and desist, asserting that it was without foundation and that Broccoli may present the play and companies may produce it under the protections offered by the First Amendment.
In a statement to Arts Integrity, Broccoli said, “I’m truly amazed at the amount of support my play has received since July when this story broke. I’m very grateful to Davis Wright Tremaine, especially Nicolas Jampol and Kathleen Cullinan, who have been working tirelessly, and to Dramatists Legal Defense, who helped connect me with them. Right now it appears that there’s an opportunity to do the play at several theaters across the county, including New York, and that’s really been my goal from the beginning.”
Jampol’s letter to Collier asks for a response within two weeks. The full text, with all legal citations and footnotes, appears below. It makes for fascinating reading and important information for playwrights.
* * *
We represent playwright Kevin Broccoli in connection with your client James Franco’s attempt to pressure theatrical venues into cancelling performances of Mr. Broccoli’s play James Franco and Me (the “Play”). In particular, we write in response to your July 7, 2017 cease-and- desist letter to the People’s Improv Theater, which resulted in the cancellation of several performances of the Play.
For the reasons explained below, we are confident that your client does not have any valid claim in connection with the Play. Contrary to the assertions in your letter, the First Amendment provides playwrights and other creators of expressive works – including both your client and Mr. Broccoli – with robust protection against the claims you threatened. Put simply, Mr. Broccoli does not need Mr. Franco’s permission to perform the Play, and will perform the Play as he desires. Mr. Broccoli also reserves the right to take legal action if your client continues to interfere with his contractual relationships with theatrical venues.
The Play
In the Play, a character named Kevin – which is based upon, and typically played by, Mr. Broccoli – sits in a hospital waiting room while his father is dying. The “James Franco” character stays with Kevin during the agony and tedium of awaiting a loved one’s fate in a lonely and impersonal waiting room. Their wide-ranging discussion tackles numerous topics like art, passion, sexual identity, and death, while engaging in a critical exploration of Mr. Franco’s films and television projects, including 127 Hours, Spring Breakers, Pineapple Express, Rise of the Planet of the Apes, General Hospital, Spiderman, Oz the Great and Powerful, and This Is the End, among others.
In addition to exploring Mr. Franco’s works, the Play parodies the public perception of Mr. Franco as a passionate, eccentric actor and artist who fully invests himself in his work. In one scene, for example, the “James Franco” character describes how he emotionally cut off his arm in preparation for his role as Aron Ralston in 127 Hours. In other scenes, the character vehemently disclaims any interest in money, highlighting Mr. Franco’s perception as someone who is not simply interested in pursuing projects for maximum financial gain – he believes in the art, and strives for something more than wealth creation.
Apart from examining Mr. Franco’s career and public perception, the Play also uses the “James Franco” character as a vehicle to explore Mr. Broccoli’s own feelings about life, death, his career, and his relationship with his father against the looming sense of mortality in the hospital waiting room. As one review explained, “this play becomes a kind of meta commentary on life, celebrity, loss, failure and friendship.”1
While not relevant to whether Mr. Franco could establish a valid claim against Mr. Broccoli in connection with the Play, the fact is that Mr. Broccoli is a long-time admirer of Mr. Franco and his work, and the portrayal is overwhelmingly positive. The Play specifically refers to Mr. Franco as “one of the most spontaneous and unique performers of his generation,” and explains that if Mr. Franco “stands for anything, it’s artistic simplicity.”
Mr. Franco Has No Viable Right-of-Publicity Claim
The First Amendment protects Mr. Broccoli from any right-of-publicity or misappropriation claim in connection with the “James Franco” character in the Play. Under well-established law, celebrities simply do not enjoy absolute control over the use of their name and likeness, particularly in an expressive context, such as a play.2 Mr. Franco has benefited from this principle in numerous of his works with characters that were based on, or inspired by, real people and events.
In Sarver v. Chartier, 813 F.3d 891, 896 (9th Cir. 2016), for example, an Army sergeant brought right-of-publicity claims against the producers of the film The Hurt Locker, which featured a fictional character that the plaintiff contended was based on him. In affirming the dismissal of the claims, the court explained that “The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.” Id. at 905. Almost four decades earlier, in Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 862 (1979), Rudolph Valentino’s nephew sued over a television movie titled Legend of Valentino: A Romantic Fiction, a fictionalized version of his uncle’s life. In rejecting the claim, Chief Justice Bird wrote for the majority of the court in a now-widely-cited concurrence3 explaining that the First Amendment protected the film against plaintiff’s cause of action for misappropriation of Valentino’s name and likeness:
Contemporary events, symbols and people are regularly used in fictional works. Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality. The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment. Surely, the range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction. Id. at 869.4
Without these critical protections, content creators would be required to obtain approval from any real person – or such person’s estate – depicted in a television series, motion picture, or theatrical production, which would allow them to veto controversial or unflattering portrayals. This would place a significant restriction on the marketplace of ideas and would have prevented the production of acclaimed films such as Spotlight, The Social Network, and Selma. As mentioned above, Mr. Franco himself is no stranger to depicting real individuals, including in Milk, Lovelace, and Spring Breakers, among many others.
Mr. Broccoli uses the “James Franco” character to comment on Mr. Franco’s career and public perception, while using it as a vehicle to explore Mr. Broccoli’s feelings about his own life and work, among other topics. In other words, in addition to dealing with a matter in the public interest – Mr. Franco and his career – the Play uses the character to enable Mr. Broccoli to “more persuasively, or more accurately, express [himself].” Guglielmi, 24 Cal. 3d at 869. See also Comedy III Productions, 25 Cal. 4th at 397 (explaining that “because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression”). As a result, the Play enjoys broad protection under the First Amendment and against any potential right-of-publicity claim that Mr. Franco might assert.5
Mr. Franco Has No Viable Trademark-Infringement Claim
The Lanham Act and state trademark law do not exist to imbue trademark owners and celebrities with the unrestricted power to prevent the unauthorized use of their marks or names in expressive works. Instead, trademark law is “is intended to protect the ability of consumers to distinguish among competing producers, not to prevent all unauthorized uses” of a mark. Utah Lighthouse Ministry v. Found. for Apologetic Info., 527 F.3d 1045, 1052 (10th Cir. 2008). Based on the Play, no reasonable viewer would be confused into thinking that Mr. Franco had sponsored or approved the Play – in fact, the Play makes clear that the “James Franco” character is a fictionalized version of Mr. Franco, and there is absolutely nothing in the Play that suggests or implies that Mr. Franco himself had any involvement in the Play. The implausibility of consumer confusion would bar any trademark-infringement claim here.
Even if Mr. Franco could somehow establish the elements of a Lanham Act claim, it would still fail because the Play is an expressive work entitled to full First Amendment protection. When a Lanham Act claim targets the unauthorized use of a mark in an expressive work, the traditional likelihood-of-confusion test does not apply because it “fails to account for the full weight of the public’s interest in free expression.” Mattel v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002). Instead, such claims must pass the Rogers test, which bars any Lanham Act claim arising from an expressive work unless the use of the mark “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). The Rogers test is highly protective of expression, and has since become the constitutional threshold for Lanham Act claims arising from the unauthorized use of marks within expressive works.6
The first prong of the Rogers test is satisfied if the alleged mark as any artistic relevance to the underlying work. See Rogers, 875 F.2d at 999. Courts have interpreted this requirement to mean that “the level of artistic relevance of the trademark or other identifying material to the work merely must be above zero.” Brown v. Electronic Arts, Inc., 724 F.3d 1235, 1243 (9th Cir. 2013) (brackets omitted). The second prong of the Rogers test is satisfied unless the defendant’s work makes an “overt claim” or “explicit indication” that the plaintiff endorsed or was directly involved with the work. Rogers, 875 F.2d at 1001 (“The title ‘Ginger and Fred’ contains no explicit indication that Rogers endorsed the film or had a role in producing it”). This requirement of an “overt claim” applies even where consumers mistakenly believe there is some connection between the mark owner and the expressive work. See, e.g., ETW, 332 F.3d at 937 n.19 (finding that a painting of Tiger Woods did not expressly mislead consumers despite survey evidence that sixty-two percent of respondents believed the golfer had “an affiliation or connection” with the painting “or that he has given his approval or has sponsored it”).7
Because the Play is an expressive work entitled to full First Amendment protection, the Rogers test would apply to any trademark claim Mr. Franco might bring. It is beyond dispute that Mr. Franco’s name is artistically relevant to a play that examines his career and public persona. Moreover, the Play does not make any explicit claim that Mr. Franco endorsed or was affiliated with the Play. To the contrary, Mr. Broccoli made clear in press interviews that the “James Franco” role would be played by different actors – not Mr. Franco8 – and never made any statement or suggestion that Mr. Franco sponsored or was otherwise involved with the Play. Accordingly, because the Rogers test is easily satisfied, the First Amendment bars any trademark-infringement claim by Mr. Franco.9
Mr. Franco Must Cease Interfering with the Exhibition of the Play
We request that Mr. Franco stop interfering with Mr. Broccoli’s right to exhibit the Play, and Mr. Broccoli expressly reserves his right to pursue a claim for such interference. Despite the fact that he can rightfully exhibit the Play without Mr. Franco’s permission, Mr. Broccoli is still an admirer of Mr. Franco, and is willing to engage in dialogue with him or his representatives regarding any specific objections he has to the Play or whether any particular disclaimer would alleviate Mr. Franco’s concerns. Like Mr. Franco, Mr. Broccoli is dedicated to his artistic craft, and despite his legal right to exhibit the Play without Mr. Franco’s permission, he would prefer to focus his time and energy on the Play, and not this dispute.
2 As one court explained in affirming the dismissal of a right-of-publicity claim arising from a film, “[t]he industry custom of obtaining ‘clearance’ establishes nothing, other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.” Polydoros v. Twentieth Century Fox, 67 Cal. App. 4th 318, 326 (1997).
3See Comedy III Productions v. Gary Saderup, 25 Cal. 4th 387, 396 n.7 (2001) (recognizing that Chief Justice Bird’s concurrence “commanded the support of the majority of the court”).
4 Chief Justice Bird also explained that it would be “illogical” if the First Amendment allowed the defendants to exhibit the film, but prohibit them from using Valentino’s name in advertising for the film. Id. at 873. See also Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 325 (1997) (holding that the use of the plaintiff’s name and likeness in a film was not an actionable violation of the right of publicity, and thus “the use of his identity in advertisements for the film is similarly not actionable”).
5 The transformative-use defense would provide another layer of constitutional protection against a right-of-publicity claim because Mr. Franco’s likeness is “one of the ‘raw materials’ from which an original work is synthesized,” and his “likeness is so transformed that it has become primarily the defendant’s own expression.” See Winter v. DC Comics, 30 Cal. 4th 881, 888 (2003).
6See, e.g., Cliffs Notes v. Bantam Doubleday Dell, 886 F.2d 490, 495 (2d Cir. 1989) (holding that “the Rogers balancing approach is generally applicable to Lanham Act claims against works of artistic expression”); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 n.11 (6th Cir. 2003) (explaining that the Rogers test is “generally applicable to all cases involving literary or artistic works where the defendant has articulated a colorable claim that the use of a celebrity’s identity is protected by the First Amendment”); E.S.S. Entm’t 2000 v. Rock Star Videos, 547 F.3d 1095, 1099 (9th Cir. 2008) (“Although [the Rogers test] traditionally applies to uses of a trademark in the title of an artistic work, there is no principled reason why it ought not also apply to the use of a trademark in the body of the work.”); Univ. of Alabama v. New Life Art, 683 F.3d 1266, 1278 (11th Circ. 2012) (expressing “no hesitation in joining our sister courts by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark,” and applying Rogers to “paintings, prints, and calendars”).
7 Similarly, the Rogers court found that the defendants did not expressly mislead despite evidence that “some members of the public would draw the incorrect inference that Rogers had some involvement with the film.” 875 F.2d at 1001. The court explained that any “risk of misunderstanding, not engendered by any overt claim in the title, is so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.” Id.
9 Any unfair-competition claim would fail for the same reasons as a right-of-publicity or trademark-infringement claim. See, e.g., Kirby v. Sega of America, 144 Cal. App. 4th 47, 61-62 (2006) (where First Amendment barred plaintiff’s misappropriation and Lanham Act claims, it also barred her unfair-competition claim).
It’s a bit hard to follow the thinking of Bill Hanney, the owner and producer at North Shore Music Theatre in Beverly, Massachusetts. Initially, it was hard because Hanney was silent, not responding to complaints – initiated by Lauren Villegas of Project Am I Right? – over the lack of Latinx casting in the company’s production Evita, which has no Latinx performers in principal roles and seemingly few in the entire cast.
The theatre’s first response came on the personal Facebook page of Kevin P. Hill, producing artistic director at North Shore, who wrote, in part:
North Shore Music Theatre understands that there has been concern expressed over the casting of our production of Evita. As the recipient of the Rosetta LeNoire Award for non-traditional casting, NSMT has always encouraged performers of all ethnicities to audition for our productions. The cast process for Evita was no different. We made extensive efforts to see as many diverse performers as possible and contracts were offered to many performers of diverse ethnicities, including Latino. Some contract offers were accepted, and others were not. Our talented cast and crew of Evita include professionals from diverse backgrounds – a reflection of NSMT’s vision.
In attempting a defense, Hill brandished an award from Actors Equity with which the theatre was honored in 2003 – under entirely different management. In fact, since NSMT had gone bankrupt in 2009, and Hanney’s ownership began only in 2010, Hill’s citing of an award received by a prior regime, one which carries the outdated terminology of “non-traditional” casting, was a weak public relations move.
Subsequently, in a Boston Globe feature on Constantine Maroulis, who was cast in the role of Che, we got some of the American Idol runner-up’s thoughts on race and ethnicity in casting. Maroulis declared that as part of a Greek American family, he had experienced racial bias, saying, “Even in the late ’70s, moving to an incredibly white suburb and affluent area, we were treated like terrorists at first . . . so I’m not exactly a loaf of Wonder Bread, either.” He went on to declare his thoughts on race in casting, saying, “I don’t think it’s an issue; I think people are trying to make it an issue.”
People were trying to make it an issue because of the long-standing exclusionary patterns when it comes to opportunities for people of color in theatre, film and television. People were making it an issue because while the original Evita in New York, 38 years ago, cast an Italian and a Jew in the roles of Latin Argentinians, the most recent revival featured Latinx actors in the two principal roles, demonstrating that the world has moved forward. North Shore’s casting of the production demonstrates that there’s still a way to go.
“I do colorblind casting,’’ said Hanney. “You have to be able to sing, dance, and act. That’s the criteria.’’
“If a Latino person came in and they were the best, they’d be in my show,’’ he asserted. “We found the right people. Our focus was not to find a Latino. It was to find the right Eva, Che, Peron, etc.”
Of course if the casting was, to use another phrase no longer in favor, truly color blind, then why didn’t Hanney manage to cast any actors of color in the few leading roles Evita offers. Shouldn’t the law of averages have managed to yield even one? Is it possible that not a single talented person who is Black, Asian, Middle Eastern, Native or Latinx could possibly measure up to the white actors Hanney favored?
“I don’t even — I never even thought about that — that type of casting.”
Unless a show calls for a specific ethnicity as in “Miss Saigon” or “Dreamgirls,” Hanney says, he doesn’t consider ethnicity at all.
“If it’s a dance show, which ‘Evita’ is, they have to dance it, they have to sing it, they act it. Those are the three most important things,” he says.
Well, despite its earliest casting, Evita does call for specific ethnicity. While Argentina’s current population is heavily influenced by Europeans who immigrated there a century ago, mixing with the indigenous population, Argentina is a Latinx country. So why wasn’t that taken into consideration? Some color conscious casting seemed called for – by the setting and text, even if it is a show created by two Englishmen who knew little of the actual locale of their show.
Hanney told Playbill that ethnicity in Evita is, as far as he is concerned, irrelevant. “There is no part of the story that speaks to events happening to her or not happening to her because of her race, nor are her actions motivated by her race.”
With the caveat that race and ethnicity aren’t possible to fully assess based solely on names, professional bios and images, a review of NSMT shows reveals that of 320 performers, including children, it appears that just 21 roles were played by people of color. That’s a total of 6.5% of all actors hired this year and last, a number that would drop by more than half were it not for West Side Story and Evita.
Compare this with the demographics of the area in which North Shore produces. According to data from the Boston Redevelopment Authority, the city of Boston itself has a population that is 47% White, 22% Black, 18% Latinx, 9% Asian, 2% Mixed Race and 2% Other. Expand out to the greater Boston metro area, as defined by The Boston Foundation, and the population is 77% White, 10.1% Latinx, 8.3% Black and 7.2% Asian. Zoom in on Beverly itself, the community where NSMT is located – per City-Data.com, it is 90% White, 3.7% Latinx, 2% Asian, 1.3% Black, 1.3% Mixed Race, and less than 1% Other.
So no matter what yardstick one uses, North Shore Music Theatre only manages to achieve only slightly better than half of the racial mix in its overwhelmingly white town, let alone represent the greater Boston area from which it draws its audience. If NSMT was indeed blind to color, then it would at least match its own community, since presumably talent is distributed equally throughout all racial and ethnic communities. But North Shore, while it does do local casting, also casts out of New York, where there is no shortage of racially and ethnically diverse talent. So are their numbers a result of bias on the part of the theatre or an utter failure of their casting mechanisms? That’s a question with which one hopes they’re willing to grapple. But the only explanation for the failure to match up to their color blind rhetoric lies in there somewhere.
If North Shore were a not-for-profit, the pressures of granting bodies – foundations, corporations and government agencies – might force their hand. But presumably so long as they’re selling sufficient tickets to operate, owner and producer Bill Hanney only answers to the box office. Consequently, he might do well to look at the some of the demographic studies linked earlier, because they show the same story that’s happening in metropolitan areas around the country: whites do not represent the majority of most major cities and soon will not represent the majority of the population of America overall. If he hides behind vague commitments to colorblind casting which aren’t even borne out in his actual casting, then perhaps he’ll gain his awakening on a wholly economic basis. After all, in order to sustain a theatregoing audience for his venue he needs to demonstrate that his seats are open and welcoming to all by proving it through the artists he puts on stage.
Note: because of the limited information on the North Shore website, fuller information on their casting during the Hanney era may yield different results. If North Shore wishes to share that information, data will be recalculated and this post will be revised accordingly.
It is unlikely that many people in the theatre are unaware of the controversy that arose in mid-May, when a small Portland, Oregon theatre company proposed a production of Edward Albee’s Who’s Afraid of Virginia Woolf? with a black actor in the role of Nick. Outcry built swiftly after Michael Streeter of the Shoebox Theatre posted the following message to Facebook:
“I am furious and dumbfounded. The Edward Albee Estate needs to join the 21st Century. I cast a black actor in Who’s Afraid of Virginia Woolf? The Albee Estate called and said I need to fire the black actor and replace him with a white one. I refused, of course. They have withheld the rights.”
This touched off a tidal wave of conversation, debate and anger over the actions of the Albee estate, with many decrying the late playwright, who had been well known to exert significant control over all productions of his plays during his lifetime, as racist. That charge was leveled at the representatives of the estate as well, since they were sustaining what were understood to be Albee’s wishes.
So it was rather surprising when, just a couple of weeks ago, the Pulse Theatre Chicago opened their own production of Virginia Woolf, with black actors as George and Martha and white actors as Nick and Honey. This seemed to contradict the prevailing takeaway from the Shoebox controversy.
Upon learning of the production via a review by Kerry Reid in The Chicago Tribune, Arts Integrity contacted Sam Rudy, the spokesman for the Albee estate, to ask about how this production had been allowed to go forward when the Shoebox production had not been able to, unless they had recast with a white actor as Nick.
In response, Rudy shared a statement from Jonathan Lomma of WME, Albee’s agent and now agent for the estate. It read:
“Regarding your inquiry, the Albee Estate gave Chicago’s Pulse Theatre Edward’s own script edits that the playwright thought could be useful when George and Martha are portrayed by actors of color, as they are in the current Chicago production.
Those approved edits by Edward himself were used in an all African-American production of Woolf at Howard University several years ago.
While it has been established that non-Caucasian actors in different combinations have played all the roles in the play at various times with Edward’s approval, he was consistently wary of directors attempting to use his work to provide their own commentary by, for instance, casting only Nick as non-white, which essentially transforms George and Martha into older white racists, which is not what Edward’s play is about.”
The edits suggested by Albee primarily consist of a word or short phrase, 13 in all, mostly adjusting references to hair and eye color. The most significant change is a brief section in the Act 2 “begin and water” monologue.
In conversation, Lomma drew attention to a particular speech of George’s, which Albee felt was completely transformed, in a profoundly negative way, were it to be spoken by an older white man to a younger black man:
“All imbalances will be corrected, sifted out… We will have a race of men…test-tube bred…incubator born…superb and sublime… Everyone will tend to be rather the same… Alike. Everyone…and I’m sure I’m not wrong here…will tend to look like this young man here… I suspect we will not have much music, much painting, but we will have a civilization of men, smooth, blond and right at the light-heavyweight limit… diversity will no longer be the goal. Cultures and races will eventually vanish…the ants will take over the world…. And I am, naturally, rather opposed to all this.”
The Zachary Scott Theatre Center production of Edward Albee’s “Who’s Afraid of Virginia Woolf?”
The Howard University Virginia Woolf
As Lomma noted, there had been productions of Virginia Woolf cast with black actors during Albee’s lifetime. When the Shoebox controversy arose, many people pointed to a production at the Oregon Shakespeare Festival in 2002 in which Andrea Frye, a black actress, played Martha with white actors in the others role. Less noted was a 2003 production at the Zachary Scott Theatre Center in Austin, again with a black actress, Franchelle Stewart Dorn, as Martha in an otherwise white ensemble.
While in May the estate was not able to provide much detail about these productions, a college production at Howard University, while mentioned in passing at the time and cited in Lomma’s statement, is evidence that Albee was not doctrinaire about race in the play.
Vera Katz, the first white theatre professor at the historically black Howard University, planned a production of Virginia Woolf as her final show before retiring in 2001. She reached out to Albee and he visited the show while it was in rehearsals, and offered suggested changes to the text that would make minor changes appropriate for an all-black production.
In June of this year, Michon Boston wrote on her Eclectique 916 site about the Howard University production, which she said was the first time she had seen the play staged. She reached out to Vera Katz to ask about Katz’s experience of producing the play, given the controversy that had just flared.
She received the following response from Katz, which Boston said Katz specifically asked her to share:
“My delay to responding to this debate is because my husband is critically ill.
In 2001, I had the audacity to contact Mr. Albee by writing him a letter in long hand and sending it through his agent. What I asked Mr. Albee in the letter was to adjust two specific changes to his play, “Who’s Afraid of Virginia Woolf” for a performance by an African American student cast at Howard University.
These changes were:
1) The mysterious baby we never see referred to as a “blond blue-eyed child”;
2) The university names in which George has lectured and taught.
My husband said “You’ll never hear from him.”
To my surprise, Edward Albee responded by calling me. He immediately agreed to discuss the changes asking me to get my script and reviewed them with me over the phone. The “blue-eyed” child became “the dark dusky child”, and the university names became HBCUs – Howard, Fisk, Wilberforce, etc.
Mr. Albee expressed his desire to visit Howard and talk with the young actors. When he arrived he insisted on shaking every actor’s hand and gave a brilliant lecture about the play.
He was extremely interested in a tour of the campus. During the tour he was very knowledgeable of persons the dormitories and buildings were named for — Mary McLeod Bethune, Dr. Charles Drew, Frederick Douglass, Harriet Tubman, and Ira Aldridge. For me, he seemed to want to expand his awareness of the Black experience during this visit.
Albee stood for a long time in front of a portrait of Ira Aldridge (actor). He talked about the importance of Ira Aldridge to the theater.
Mr. Albee said he was unable to attend the performance of “Who’s Afraid of Virginia Woolf” because his play “The Goat or Who Is Sylvia?” was in production.
We thanked him by mentioning his visit in the program at Howard and sent him a copy (of the program).
Boston concluded her post by noting that Katz was working on a book in which she would go into more detail about her interactions with Albee and the Howard University Virginia Woolf.
Kate Robison and Adam Zaininger as Nick and Honey in Edward Albee’s “Who’s Afraid of Virginia Woolf?” at Pulse Theatre Chicago (photo by Joe Mazza)
Professional vs. Non-Professional Productions
Following a phone conversation earlier this week with Arts Integrity, Chris Jackson, Producing Artistic Director of the Pulse Theatre Chicago and director of their Virginia Woolf, shared a statement explaining how they secured the rights for the show, having already explained that the company had no difficulty with its plans. He wrote:
“Pulse Theatre Chicago is a 501 (c)(3) non for profit, non-equity professional theatre company. We rent spaces across the city when we decide to mount each production. We do not have an artistic home and we work on a very low budget, mostly out of pocket. All of our artists are paid a small stipend after the run of the show. Because of those factors, Dramatist [Dramatists Play Service] informed us that we only qualify to the non-professional rights to the production, which in regards to casting, only requires that the gender of the characters may not be changed from the intended.
“To my knowledge, the estate only had an issue with the interracial casting of the couple of Nick and Honey, which is understandable because in my opinion that casting choice disrupts the central theme of The American Dream being unachievable. I don’t think the estate is complete restrictive of actors of color being cast in Albee plays. If they were, we wouldn’t be talking! As far as I know, the estate approved our production. The only communication I have received from the estate about this production specifically came from them through Dramatist. They sent, opening night, the revisions that Albee made for the Howard University production of the show.”
In conversation, Jackson noted that he had secured rights to Virginia Woolf more than a year ago, while Albee was still alive.
As it happens, the licensing rights for Virginia Woolf are slightly complicated, compared to many plays. Dramatists Play Service handles the non-professional rights, while Samuel French handles professional rights, resulting in part from the fact the DPS didn’t begin handling professional rights until the early 1980s. Lomma continues to handle “first class rights,” which include Broadway, national tours and the West End.
So while Pulse is a professional non-Equity company, for the definitions that exist between DPS and French, their production was deemed non-professional. While Shoebox is comparably small, they appear to have been defined as professional for the purposes of licensing.
Following a conversation with Arts Integrity, and responding to questions about the process of licensing Albee’s work, Peter Hagan, President of DPS, sent the following e-mail:
“Our Albee nonprofessional licenses essentially mirror our boilerplate licenses for our other plays. The language simply says – as our other licenses do – that the play must be performed as written by the author, with no changes, etc. As you know, Mr. Albee was very specific about how casting changes could affect the authenticity of what he had written. Our license form for the Albee plays is actually quite old – so old, in fact, that it includes Albee’s prohibition against performing the play before a segregated audience!
As I told you, we do not represent the professional rights to some of the Albee plays, including Who’s Afraid of Virginia Woolf? For all of those Albee plays for which we do represent the professional rights, there is a stipulation that the director, actors, set, costumes and rehearsal schedule must be approved by the Estate of Edward Albee before a license is granted, as was the case when Mr. Albee was alive. As you know, he took a very hands-on approach to the professional productions of all of his plays.
As for our distinction between what is considered a professional production and what is considered nonprofessional, when actors are paid $150 per week or more for their work, we consider that a professional production, whether it is Equity or non-Equity. Samuel French has a different policy, so you should check with them about that.”
Asked about how Samuel French handles the stipulations on Albee plays that French represents, the company’s executive director Bruce Lazarus said that, for all shows they license, “On professional productions, if requested by an author, we submit any information that is requested to the author’s agent. We support a playwright’s right to approve casting to be sure it reflects their authorial intent.”
Albee famously denied all requests to allow for productions of Virginia Woolf with entirely male casts.
* * *
Sophie Okonedo and Damian Lewis in the 2017 West End production of Edward Albee’s The Goat, or Who is Sylvia? (photo by Johann Persson)
In the wave of controversy over the Shoebox production that never was, a debate flourished over the rights of authors, and subsequently their estates, to exert control over the way in which plays are produced, beyond even the specific of Edward Albee’s requirements. It extended to the question of how long copyright protection runs and whether estates, by following the express wishes of an author too slavishly following their death, may be sustaining outdated thinking, be it in how texts are examined or how society has evolved since the play debuted.
Arts Integrity has written many times in the past in support of artists rights and the right of their estates, based in the legal protections afforded to authors in the theatre, which differs from film and television (and cases where a play may be sold for adaptation into those media). Arts Integrity also advocates for inclusive casting, and opening traditionally, and in some cases roles that were explicitly thought of as, white to performers of color.
It bears noting that Edward Albee passed away less than a year ago. While many chafed against the degree to which he controlled his works during his lifetime, and indeed may disagree with his feelings about the casting of Nick in relation to the rest of the company, it is not necessarily realistic to expect the people to whom he entrusted his estate to immediately abandon his wishes within months of his passing. That said, it is not unrealistic to imagine that the estate’s thinking will evolve, especially as current trustees of the estate will eventually give way to successors in future years, given the term of copyright.
For now, the creative elements of Albee’s plays in professional production, including directors and casts, will continue to be reviewed and approved by the agent for the estate, Lomma, and trustees of the estate, as submitted to them by DPS and French. However Lomma indicated that, save specifically for Nick in Virginia Woolf being cast as black with the others characters as white, there is no hard and fast proscription against artists of color taking on roles in the plays. Sophie Okonedo’s role in a recent West End production of The Goat, a role played on Broadway by Mercedes Ruehl and then Sally Field, is evidence that’s the case.
However, all parties represented in this article made the point of saying that the sooner producers engage in conversation about their interest in Albee’s plays, and their plans for them, the less likely it is that issues will arise.
In contrast to the impression left in May, Jonathan Lomma said, on behalf of the estate, “In Edward’s almost 30 plays, virtually all of the roles can and should be done in a diverse, color conscious fashion.”
Those who have followed the career of James Franco, and at times it has almost been hard to avoid, are aware that the actor had a period where he was a perpetual student, described in 2008 in Vanity Fair as displaying a “pan disciplinary omnivorousness.” He has a bachelor’s degree in English from UCLA, did graduate studies at Columbia, NYU Tisch, Yale and Brooklyn College, and has lectured at the UCLA School of Film, Television and Theater. Since English, writing and other creative endeavors were part of his studies, presumably along the way he might have learned a few things about the First Amendment, copyright law and the fair use provisions.
But whether this was a gap in all of Franco’s study, or whether it occurred while he was allegedly asleep in class (Franco denies that charge, on the basis of it being a bonus lecture), the creative dynamo and education addict seems to have had no qualms about shutting down a Cranston RI-born show, James Franco and Me, when it dared to book a short August run in New York at the People’s Improv Theatre (PIT). Multiple media outlets, attuned to covering Franco in his many ventures, briefly reported the creative censorship in July, including Salon and The New York Times.
Some reports at the time suggested that the play, by and starring Kevin Broccoli, was about Franco. Broccoli disputes that claims, saying, “In the show, it is stated that he’s fictional. It’s even suggested he might be an imaginary friend. Nothing that he says in the show is a direct quote of his. There are no quotes from any of his movies. As far as I know, nothing that ‘he’ talks about in the show actually happened in real life.”
Kevin Broccoli
“But the show is highly autobiographical on my end. So the really bizarre thing about this, for me, is it really does feel like someone’s not allowing me to tell my own story, because they want to prevent me from just using some celebrity’s name in something.”
It is well established that parodies of people are permitting under the fair use provisions of copyright law, though to be accurate Broccoli wasn’t parodying a written work, but rather playing with the persona of a public figure. Whether or not the show was funny or serious is irrelevant, since parody need not serve only comic purposes. Broccoli asserts that he has taken nothing specific from the public record of Franco’s life, only the idea of James Franco, public figure.
The cease and desist letter, from attorney Thomas B. Collier of Sloane, Offer, Weber and Stern was sent not to Broccoli, but rather to PIT, prompting them to cancel the James Franco and Me booking out of concern of being subjected to legal action. It claims, in part, Franco’s right of publicity, as well as asserting trademark violation and unfair business practice according to California Business and Professions Code Section 17200 and California Civil Code Section 3344, which the letter quotes as follows:
“Any person who knowingly uses another’s name, voice, signature, photograph or likeness on or in products, merchandise or goods for the purposes of advertising or selling or soliciting purchases of products… shall be liable for any damages sustained by the person or persons injured as a result thereof.”
The New York statutes regarding right of publicity can be found here.
But Epic Theatre Company, Broccoli’s Rhode Island based troupe, never employed Franco’s voice, signature, or likeness (a local publication created an image juxtaposing Franco and Broccoli’s faces), and even if it did use his name, it wasn’t to sell a commercial product as meant by the statutes invoked. Artistic use falls within the First Amendment, which Mr. Collier omits, presumably to frighten PIT and through them, Broccoli and Epic. The letter, incidentally, concludes by asserting that it is itself a copyrighted legal communication, and therefore can’t be published in whole or part. More scare tactics.
With the threat of such action hanging over the show, Broccoli said he has been unable, to date, to secure an alternate venue. In fact, even when he remounts the show for a single performance this Saturday back in Rhode Island, he is excising Franco and calling the show __________and Me, because he can’t afford to defend himself from actions by Franco and his attorneys. He likens the show he’ll now perform, as a benefit for the ACLU, it to the internet parody “Garfield Without Garfield.”
What has taken place here is that James Franco and Me has been shut down because Kevin Broccoli and his company don’t have the financial wherewithal to battle a celebrity with considerably greater resources. His first amendment rights have been trampled because he isn’t wealthy enough to fight back, and so his play, at least in its original form, is silenced.
The situation recalls that faced by David Adjmi’s 3C, a dark parody of the television series Three’s Company, which was kept out of production following its premiere at Rattlestick Theatre by a specious claim from the rights holders to the original series, who claimed that, among other things, it would damage their opportunities for commercial exploitation of the then-35 year old sitcom in the live theatrical marketplace. In that case, Adjmi could not afford to fight the case alone, but was supported by the law firm of Davis Wright Tremaine and by the Dramatists Guild and Dramatists Legal Defense Fund. The court ultimately ruled in favor of Adjmi and the play, which is now receiving productions – including, coincidentally, one last month at Epic Theatre.
Arts Integrity contacted Bruce E.H. Johnson, a partner at Davis Wright Tremaine to ask his thoughts about the cease and desist letter sent to the PIT in regards to James Franco and Me.
“In my opinion, this claim is bogus,” wrote Johnson, in response to e-mailed questions, which included inquiries as to whether “right of publicity” laws come into play in this case. “The right of publicity applies only to advertising and commercial use; it does not apply to a play, which is absolutely protected by the First Amendment.”
Johnson continued, “Any advertisements for a First Amendment product, like a play, are also protected by the same First Amendment principles. From Steven G. Brody and Bruce E.H. Johnson, Advertising and Commercial Speech: A First Amendment Guide at 2-30 (2d ed. 2017): ‘The courts normally afford full First Amendment protection to advertising promoting speech in books, movies, and other fully protected media.’ And the fact that ‘tickets are being sold’ to the play doesn’t make it a commercial product. This First Amendment principle was affirmed by the US Supreme Court in New York Times v. Sullivan (1964), finding absolute First Amendment protection: ‘That The Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold’.”
In Johnson’s assessment, “I can’t think of any situation where a celebrity sued for a fictional portrayal in a play. Given the absolute First Amendment protection here, such a lawsuit would be immediately tossed out.” Broccoli notes that the New York Musical Festival was advertising a show entitled Matthew McConaughey and The Devil as part of their 2017 season. Woody Harrelson is also a character in the show.
It is particularly worth noting that James Franco and Me is not even the first theatrical piece to prominently invoke Franco. In Chicago, The Gift Theatre presented Under The Gun Theater’s Dear James Franco, an improvised evening of reading celebrity letters in 201, which was reviewed in Chicago outlets, including The Reader. Promotional copy in the Goldstar website read, in part, “Though the night is being called Dear James Franco, the letters are not necessarily written by or to the Pineapple Express actor, but judging by the hilarity of previously published open letters to Franco (as seen in Slate, Gawker and more), it sure wouldn’t hurt.”
But in the meantime, without the means to defend himself or his play, Kevin Broccoli is being – because he’s taking a creative approach in response to censorship he’s not equipped to fight – partially silenced. Perhaps someone or some firm with the legal resources and expertise will step up to challenge Franco, Collier, and his firm, because every time a groundless cease and desist is allowed to curtail the creativity of artists, the whole field suffers.
Of course, Mr. Franco is even a fan of performance art, and given his proclivity for perpetual learning, perhaps he can get a quick law degree and defend Kevin Broccoli from James Franco. That would be justice indeed.
If you happen to be going to see the current production Stephen Adly Guirgis’s The Last Days of Judas Iscariot at the Shelton Theater in San Francisco the next ten days, you’ll find an insert in the program that declares, “The play you are seeing tonight has been improperly and extensively cut & edited. These edits were made without permission, against the wishes of the playwright, and in violation of Federal Copyright Law.” There’s a red, stencil-like image, similar to an old rubber stamp, declaring “WARNING” across the text.
You might think this is some sort of joke, some meta-theatrical twist, but it’s not. At least the message about copyright violations isn’t.
Director Richard Ciccarone, in a director’s note, talks about his rationale in approaching the play:
“For me, a play is a living document that should transform from production to production. It is something the author bestows upon the public as a gift to be shared and theatre remains the greatest interpretive art the human race has developed. I say this because it is my fervent belief that as a director, an actor, a designer, a producer, a stage manager, a board operator, and an audience member, we are all taking the work of one artist and reinterpreting it into our own separate experiences. The play may not be what the author intended in his original vision, but as a work of art. I believe it is our duty to interpret and not simply repeat, to participate, not just transmit, and by doing so become a collaborators [sic] in the work.”
What this statement doesn’t admit is that he has done something more than approaching the play in a way that is something other than the author’s original vision, which may be open to certain interpretation. He has cut the text, taking a two hour play down to about 80 minutes. This was done without the author’s permission or the knowledge of the licensing house, Dramatists Play Service (DPS). It is a violation of the authors copyright, and Guirgis had every right to shut the show down.
Remarkably, he did not, showing the same desire to not be punitive to a small company and for actors to not lose work that prompted him to allow a production of The Motherfucker With The Hat to continue at Theatreworks in Hartford, Connecticut in 2011. In that case, key Latinx roles had been cast with white actors, with no auditions held for those roles.
Informed of the Shelton Theater situation by DPS, Guirgis sent a letter to Matt Shelton, the theatre’s founder, listed as Actor/Director/Producer on the company’s website, and Richard Ciccarone, about the situation. It read, in part:
“I do not wish to shut you down. And yet – it is not acceptable what you have done. You guys are not students. Matt, you have been producing theater for 25 years – and you know DAMN WELL cutting my script in half violates Federal copyright laws…”
He then asks them to create inserts with the language that appears in the first paragraph, closing with:
“Put in the inserts. Or close the play. Your choice. Either way – please send my love and thanks to the rest of the cast. And my thanks to both of you as well.
Hail Caesar, baby!”
As the situation became widely public on Facebook, Guirgis wrote more about it in a playwrights group there, and he is quoted here with permission:
“But now I see they put a stupid WARNING thing over the statement i asked them include — and it looks more like marketing (oh, warning! something “taboo”) — rather than an admission of fault on their part. THANK YOU for sharing this photo. I’ve written to them again. Te [sic] truth is the guy who runs the theater seems like an asshole. And he was unapologetic about doing what they did. I don’t like the idea of shutting down artists, but, if they don’t get rid of that stupid warning, then i will….
Lastly – people fuck with the words and alter our scripts all the time and it should never happen. And the excuse they gave me for cutting the script was NOT for creative reasons, but because of time & budget constraints, and that’s no excuse for either. Anyway, thank you for your attention to this matter. It sucks. For all of us.
Guirgis told Arts Integrity that the theatre has stopped responding to his calls, and he has resorted to sending them messages via Facebook, with no response. He also pointed out an image for the show that he found on Ciccarone’s Facebook, which may be fan art but includes dates and prices, but which failed to even credit him as the author.
He further wrote to Arts Integrity, when approving use of his Facebook statements, “You know, LAB was a small theatre (and is again). I got no heart to shut the SF people down, but if I have to, I will.”
“The fact is,” Guirgis continued, “this happens all the time. Lack of respect for the written word in plays starts in schools where teachers regularly ask students to cut monologues or scenes, or they direct plays with students in them and the cut at will. So we are taught that the actual text is not sacrosanct. And that’s fucked, ya know?”
This situation with the play has become known only a week and a half prior to the production’s closing, and it began performances in late June. So audiences who have seen the production prior to the program insert’s appearance may think they have seen Guirgis’s play, but they haven’t. They have seen a chopped up summary of the play, created according the whims of Richard Ciccarone, Matt Shelton and the Shelton Theatre. Those audiences have been lied to. Illegally.
As of now, if the “warning stamp,” that Guirgis sees as sarcasm in response to his instructions, isn’t quickly removed, it’s possible that the last days of Judas Iscariot at the Shelton may come even sooner than planned. The theatre’s lack of response to Guirgis – there has also been no response to Arts Integrity’s own e-mail inquiry, with the theatre’s voicemail message box full and not accepting messages – doesn’t bode well. Guirgis has offered the production a lifeline, but in their scofflaw arrogance, they are once again doing it their way, not according the author’s wishes. They may soon learn an expensive lesson, and it will be interesting to learn how quickly they’ll be able to license any plays in the future if this is how they choose to treat playwrights and texts.
Update, August 5, 2017, 11 am: Matt Shelton responded, via Facebook, to Stephen Adly Guirgis at approximately 2 am eastern time (11 pm San Francisco time) regarding the nature of how the program insert has been handled and other questions that have been raised by so many about the Shelton Theater production. It reads:
“Please understand that I’m not on Facebook and don’t have a feed only phone and such. I’m just now getting wind of all this. I did apologize sincerely to your agent and to our Dramatists Play Service representative. I really appreciated your letter and felt it was as sincere as I was. The insert was changed appropriately. I’m not sure why everyone has their pitch forks out. But I did apologize for adapting your Play and am sincerely regretful that it has hurt you and others and I am sorry for this. Please contact me via e-mail and/or phone. I am happy to fly out and discuss this with you as gentleman [sic].”
Guirgis also shared one of Shelton’s original e-mail communications to Dramatists Play Service, after questions were raised about the production, which read, in total:
We actually couldn’t open until the 29th of June. We’ve done 15 shows. We hope to close August 12th for a total of 21 shows. This produciton [sic] though low attendance has been very well received. We have been producing theater for 25 years as a small independent theater and took liberties with the play for the reasons stated in the directors attached letter. No harm was intended to anyone or any community. We continue to try to bring beauty to the world and appreciate your efforts in allowing us this opportunity.
Additionally, Guirgis shared Richard Ciccarone’s letter to him, which over three pages detailed every change and edit. The introductory portion of the letter read, in part:
I am writing today first to apologize for any harm I may have committed in the production of your work The Last Days of Judas Iscariot, and second, to explain my reasons as requested in your letter….
As far as my methods to bring this work to light, I am guilty of reducing the script so that, for economic reasons only, we could present it to our audience. We are a small theater, seating 74 people, which often depends on programming two shows an evening in order to break even. We also did not have the resources to fully cast this production within our budget. These were the foremost reasons that I had to make the cuts that I did, as difficult as that was….
The decisions that I made were not the result of artistic solipsism, but so that our theater could present a work of true genius within our limitations. I hope and beg that you let us present the balance of our run with the understanding that we will never do anything like this again.
Shelton Theater has, as of this update, still not responded to Arts Integrity’s request for an interview.
“The Last Days of Judas Iscariot” at the Shelton Theater.
Update, August 5, 8:30 pm: Stephen Adly Guirgis has informed Arts Integrity that, on the advice of multiple counselors, he has authorized Dramatists Play Service to send a cease and desist letter to the Shelton Theater requiring them to suspend any further performances by the company of their production of The Last Days of Judas Iscariot, as a result of their violation of copyright law and the licensing agreement. The company has already removed all mention of the show from their Facebook page and website.
Update, August 5, 9:30 pm: Stephen Adly Guirgis posted the following message to Facebook at 9:10 pm: “We are shutting down the Shelton Theater production of Judas. They’ve been served a Cease & Desist order. I really wish it didn’t have to be this way. But they did it to themselves. Don’t violate federal copyright law. And if you get caught — don’t be glib. There are no winners here. My apologies to the actors. And THANK YOU to all for the support.”
Update, August 5, 11:30 pm: Stephen Adly Guirgis has made one final Facebook post on this situation. It reads:
LAST JUDAS UPDATE: Matt Shelton & I have corresponded. I have no hard feelings. Neither does he. The show has been closed & we move forward with respect. No enemies. No bad guys. Shit happens. We are all theater people here. Many freaks — but one tribe. Room to grow. Room to learn. Room to forgive. If you’re in San Fran — support the Shelton Theater. The fight’s over — so no need to choose sides. Forgive them. Forgive me. THANK YOU.
Update, August 22, 7 pm: In response to an editorial, offered as a report, by John Wilkins on KQED, Dramatists Guild executive director for business affairs Ralph Sevush wrote an extended response regarding copyright. It read, in part:
“You describe all the wonderful ways theater companies have, or might have, reinterpreted the work of Arthur Miller, Albee and Guirgis, and have decided they are necessary to “loosen things up.” And that “fidelity is a wan virtue.” Again, you offer assumptions and opinions dressed up as facts. Regardless of your metaphysical views on the nature of fidelity, the fact is that many authors do agree that their work should be freely reinterpreted and they give theaters great latitude in revising their work. I’ve seen recent productions of Mr. Miller’s plays on Broadway that would probably set Arthur’s hair on fire, but the estate does give latitude to new interpretations. On the other hand, some authors and estates do not. Are they wrong for keeping their works “musty”? Perhaps, but they are allowed to be “wrong and foolish”… or is that a right you only reserve to producers and directors? In any event, authors do not get to hold the reigns tightly forever… just ask Bill Shakespeare.”
This week, Stephen Sondheim and John Weidman’s 1990 musical Assassins will have its first major New York performances since the 2004 Roundabout Theatre Company production*, in a concert version as part of City Center Encores!’s Off-Center series. Given the controversy sparked last month by The Public Theater’s Julius Caesar, in which Caesar and his wife were portrayed as analogues of Donald and Melania Trump, prompting the withdrawal of sponsors, sparking disruptions of performances and precipitating threats against the production, the theatre, the artists and the staff, it seemed an appropriate moment to speak with Weidman about how Assassins has been perceived over the past 26 years and how the newest incarnation might be received. Weidman, a former president of The Dramatists Guild, currently serves as president of the Dramatists Legal Defense Fund, founded to, according to the organization’s website, “advocate, educate and provide a new resource in defense of the First Amendment.” This interview has been edited and condensed for clarity.
Howard Sherman: Given the state of discourse about public expression, given what happened with Julius Caesar in Central Park, it seems that putting up this show at this moment carries not necessarily more weight than other times, but that people may bring some other baggage to it in a different way they might have at other times. Back in 1991, it did not move to Broadway, the reason given being it wasn’t the right time, it was the first Gulf War, etc. Then there was the first planned Roundabout production, coming right after 9/11, when you and Steve and others felt it was not the right time to do the show. So is there ever a right time or ever a wrong time to do Assassins?
Stephen Sondheim and John Weidman
John Weidman: I don’t think there’s ever a wrong time to do it. I think the reception of the first production was honestly more a function of the fact that people did not know what to expect when they came into to theater. They were not prepared for the shock value of the opening number, which was a deliberate choice on our part to kind of knock the audience off balance. I think that, 25 years ago, even though there had been many adventurous musicals that had been done, some people simply assumed that the musical theater was not an appropriate place in which to tackle material that was this fundamentally serious. I think we’re well past that assumption at this point, given the kind of musicals that have been written in the last 25 years.
When the show was scheduled to be done at the Roundabout, and when we decided to delay the production after 9/11, that wasn’t a good time to do Assassins. But it wasn’t because we thought people would find the show problematic, that they would resent a show about presidential assassins in that sudden new political moment. In order to engage an audience, given the way the show’s designed and the way it’s written, it requires an audience which is, frankly, prepared to laugh in certain places, to take the humor on board. That’s part of the roller coaster ride of the show. We all felt that at that time, it was unfair to ask an audience which was grieving to come into a theater and to engage this kind of material in a way that was intermittently humorous. The show in that context simply wouldn’t work. And If it wasn’t going to work, it made sense to delay the production.
As far as now goes? When the show first opened, we had a conservative Republican in the White House, and then for eight years we had a centrist Democrat in the White House, and then for eight years we had a conservative Republican in the White House, and then we had a centrist Democrat who was black, and now we’ve got this guy. The show’s been performed continuously over the course of those 25 years in all kinds of different political and socioeconomic contexts. This is just a different one.
That said, people will obviously come into the theater from a different place, because the world outside the theater is a different place. Which will affect the way in which the members of the audience take the show on board.
But I don’t think it makes it a particularly good or bad time to do Assassins. Personally, I think it’s always a good time to do the show, because the show is meant to be provocative, and hopefully people will walk out of the theater talking about it, that it will provoke the kinds of conversations that Steve and I hoped it would provoke when we wrote it. That should happen now the way it’s happened with previous productions. They may be different conversations, but that’s what I would hope would happen.
Sherman: Have you and Steve made any changes in the show since it was last seen in New York, since the 2004 Roundabout production?
Weidman: No. The text of the show that’s going to be performed at City Center is exactly the same as the text which was performed at the Roundabout. And the text at the Roundabout was exactly the same as the text that was performed at Playwrights Horizons with the exception of “Something Just Broke,” the song which we added in London. The show’s really been what it’s been since it was first performed 25 years ago.
The 2017 Yale Repertory Theatre production of “Assassins” (photo by Carol Rosegg)
Sherman: Assassins was performed this spring at Yale Rep. Was there a difference in response to the show than for previous productions?
Weidman: You know, I was curious to see if there would be a difference in the way in which the show was received after the last election, and Yale was the first significant production that was available to me. I didn’t feel, sitting in the audience, as if there was any kind of shift that I was aware of in terms of the way in which the audience was connecting to the material.
Sherman: Speaking to you both as an author of the piece, and also in your role with the Dramatists Legal Defense Fund, it’s fair to say that there was some very heightened conversation, and actions around the Julius Caesar, admittedly by people who didn’t see it, didn’t take the time to understand it or understand its context. In the wake of that, are you concerned at all about how, not even the audience, but how people external to the audience might choose to speak about this piece?
Weidman: The word you used was concerned. I’m not in any way worried about it. At the same time, I’m sensitive to the possibility that in this current political climate, there will be people who will react to the idea of a musical about the people who tried to attack the President, that they will react to that in a way which is similar to the way in which some people reacted to the show in 1991, when they hadn’t seen it and weren’t going to see it. They simply knew what the show was about, and they had a problem with that. That happened then and that could conceivably happen now.
I do think that we’ve had 25 years in which this show’s been performed a lot everywhere, and so people have a better idea of what the show’s ambitions are and what its intentions are. I’ve got Google alerts set on my computer to Assassins, because I’m always curious to see how the show’s being received. The reviews tend to be really good, which is always nice, but the main thing is people writing about the show all over the country, in a variety of different kinds of publications, seem to understand what Steve and I were intending. That’s really reassuring. People get the show. They can like any show, they can like it a lot or not like it a lot. But they seem to understand what we were doing, and I assume that that will be the case this time around as well.
Sherman: In reading some of the press about the prior productions and some of the commentary, one of the ways in which the show is described is that it’s about, and I’m not quoting here, I’m paraphrasing, it’s about an America that causes people who feel they have no voice to take extreme actions. As we look at politics today, there are those who say that where we are is about people who felt they were disenfranchised from the political system, and that has brought us to the real polarization that we’re at now. Might that affect people’s perceptions?
Weidman: As Steve and I started to talk about this material 25 years ago, I realized at a certain point very early on that what drew me to the material was an attempt to explain something to myself which I had not understood since I was 17 years old when Kennedy was shot. The Kennedy assassination was my first real experience of loss and it was devastating to me. Two of my friends and I got together and we went down to D.C. and stood on the sidewalk as the funeral cortege went by, and all the subsequent attempts to try make sense of what happened — conspiracy theories. Was it the Cubans, was it the CIA, the FBI? It all seemed like, on some level, a waste of time to me. The fundamental question was: how could so much grief and pain be caused by one angry little man in a t-shirt with a rifle in Texas?
When Steve and I started to talk about these other personalities who had articulated a variety of wildly different motives for attacking the President, we said, ‘Well if we gather them together and look at them as a group’ – something which had not been done much, even by academics – ‘would some common grievance, some common complaint beyond what they articulated begin to emerge? And if it did, that would be a useful thing to write about.’ That is at the heart of what the piece explores. The people who, with one or two exceptions, picked up guns did tend to be, when you look at them as a group, people who were operating on the margins, the fringes of what we would consider a mainstream American experience.
In the last election, a lot of people who you and I would have identified as operating on the margins of a mainstream middle-class American experience, cast their votes in a particular way and elected a particular guy President. That does seem to suggest a different way of looking at the characters on stage in the show. I’m not quite sure what the change is. I’m not quite sure what it means in terms of how one observes their behavior and listens to what they have to say. But we are in a different political moment, and that moment will undoubtedly have an impact on how the audience responds to the piece.
I do think it will probably make for conversations on the way out of the theater which will be different from the conversations people might have had five years ago or ten years ago. I’m not sure if any of that’s clear. If it’s not, it’s because it’s something I’m still working through in my own head.
The 2004 Roundabout Theatre Company production of “Assassins” (photo by Joan Marcus)
Sherman: Given that the run is sold out, if there is conversation about why this show at this time, and if people choose to try to politicize it, is there something you would like them to know beyond the simplistic plot descriptions of a marketing brochure or a PR release about the show?
Weidman: I have always felt that that it’s essential with this show that it be allowed to speak for itself. It obviously can only speak to the audience that’s in the building, but that’s true of any theater piece. You know, somebody can describe to you what Hamlet means, but if that’s all it took to appreciate Hamlet, then you wouldn’t have to waste time listening to Shakespeare’s language for three and a half hours. I think you need to experience the piece itself, and I think that’s true of this piece. That said, Assassins is an exploration of where these vicious acts came from, in an attempt to get a better handle on how to prevent them from happening again in the future.
Sherman: Speaking to your role with the Dramatists Legal Defense Fund: is there any sense that there has been a change in people wanting to assert their own prerogative over what happens on stage? Has that changed in the past six to eight months? Does DLDF have more concerns now than in the past, or is it just consistent with the kinds of challenges that you’ve faced?
Weidman: I’m not aware of any kind of seismic shift, in terms of what people are either attempting to repress or ways in which people are self-censoring, although it would be hard to know about the second one. It may be the decisions at the high school level, it may the decisions at the amateur level, but also at the stock level, that people are making more cautious decisions in terms of what they think a school board or parent body or a subscriber base is going to be comfortable with. It’s entirely possible that they are shying away from things which they think are likely to be controversial. I would obviously hope not, because this seems to me a period when it’s important for controversial material to be produced and to become part of the national conversation.
When DLDF gave an award last year to Jeffrey Seller, and Lin-Manuel Miranda, and Thomas Kail, and the cast of Hamilton for the speech that was made from the stage when Mike Pence was in the audience, I wrote the citation and I handed the award to Jeffrey. The point I wanted to make most forcefully was that Mike Pence apparently had stood there and listened and that was fine, but the President-elect the next morning had not only castigated the cast for being rude, but he had instructed them to apologize. I said if censors tell artists what they’re not allowed to say – here we have someone going beyond that, instructing artists what they’re required to say. The latter is a genuinely frightening prospect, and I wouldn’t have thought five years ago that it was something we had to be concerned about, but I think we all feel like we’re living in a new world where anything is possible and nothing is surprising.
* There was a one-night reunion concert of the 2012 cast, held as a benefit for Roundabout.
Does anyone remember last summer’s TheTaming of the Shrew in Central Park? It opened with an entirely non-Shakespearean beauty pageant and talent show, led by a buffoonish figure costumed to look very much like a billionaire presidential candidate who has owned, and exploited, beauty pageants of his own. Coming in a production in which the entire cast was women, in a play that is widely considered to be misogynist in our era, it was a broad parody, a buffoonish portrayal of a political figure who had yet to consolidate his electoral power. But there was no mistaking that this was meant to be Donald J. Trump.
Now Trump is president and, by all accounts, he is once again on stage at The Public Theater’s Delacorte Theater—or rather Julius Caesar is on stage costumed to evoke the now-president, complete with a fashionable spouse who reportedly speaks in an Eastern European accent. Because Caesar is – as we all know – killed, the layering of present day politics in America over a 400-year old play (set even centuries) earlier is being said by some to have crossed a line. Lumped together with Kathy Griffin’s less classically oriented gory political theatre in which she posed with a bloody head, strongly implied to be that of the president, The Public’s Caesar quickly became a target for such media outlets as Breitbart and Fox News, even drawing a certain Donald Jr. into Twitter commentary.
“I wonder how much of this ‘art’ is funded by taxpayers?,” tweeted the presidential scion. “Serious question, when does ‘art’ become political speech & does that change things?” A Fox News tweet, headlined “NYC Play Appears to Depict Assassination of @POTUS,” was appended.
The tweet itself, for those inclined to look at such things analytically, undermined itself with its intellectual flabbiness. There is no hard line between art and politics, no absolute moment when one becomes the other. The Public Theater is hardly a stranger to melding the two, with shows ranging from Hair in the 1960s to Hamilton in 2015. It staged David Hare’s Stuff Happens and Tony Kushner’s The Intelligent Homosexual’s Guide. Always socially minded, it is at least as outspoken as ever under the leadership of Oskar Eustis, the proud and vocal product of a left-wing youth. Indeed, there has been very little at The Public during Eustis’s tenure that hasn’t been easy to examine through a political prism.
Yesterday, when pressure from Breitbart, from Fox, from the Trump family, reached a point when it may have seemed to them politically, corporately, and publicly untenable from a perceptual angle to underwrite (with many others) the production, Delta Airlines disavowed The Public, pulling their support from the theatre entirely. Bank of America followed suit, but somewhat more guardedly, only pulling their support of Caesar itself. In doing so, they gave the production – for which tickets are free – vastly more attention than it had already received. Even as theatre die-hards were focused on The Tony Awards, the story of the Trump-like Caesar exploded in the media.
In statements and tweets, Delta stuck to a singular sentiment:
No matter what your political stance may be, the graphic staging of Julius Caesar at this summer’s Free Shakespeare in the Park does not reflect Delta Air Lines’ values. Their artistic and creative direction crossed the line on the standards of good taste. We have notified them of our decision to end our sponsorship as the official airline of The Public Theater effective immediately.
Bank of America stated:
Bank of America supports arts programs worldwide, including an 11-year partnership with The Public Theater and Shakespeare in the Park. The Public Theater chose to present Julius Caesar in such a way that was intended to provoke and offend. Had this intention been made known to us, we would have decided not to sponsor it. We are withdrawing our funding for this production.
In a report for Deadline, Jeremy Gerard noted that the airline’s support fell in the $100,000 to $499,000 category of sponsorship; airline arts support typically takes the form of vouchers for flights or a bank of so much value that can be used to acquire tickets, though it’s possible that there was cash involved. Certainly, that’s the likely case with Bank of America, which like many corporations has philanthropic arms, though in recent years corporate philanthropy has become inextricably linked with marketing and public relations.
Does The Public have the absolute right to stage the works it chooses and in the manner it sees fit? Yes, it certainly does. It is an independent not-for-profit organization, and what it chooses to produce, to share with audiences, is entirely the responsibility of the staff and, by extension, the board of directors. Does it have an absolute right to sponsorship or donations from any particular organizations? No. That is the result of fundraising, of a cost benefit analysis on the part of any potential sponsor or donor. If they like the work, the mission, the initiatives, of The Public – or any arts organization – individuals, government sources, foundations and corporations may choose to support it.
But there’s no mistaking the actions of Delta and Bank of America as anything but political acts as well, cloaked in the guise of corporate sensitivity. While they have not said exactly what line has been crossed by Caesar, it doesn’t seem that it’s about blood or even gore. Shakespeare is filled with violence and its results, though typically in service of a larger message. But with their decision to publicly pull funding, and even sever a long relationship in the case of Delta, these corporations are saying to those who take offense at an obviously fictional portrayal of Julius Caesar as a Trump stand-in that they don’t countenance such things, that they are shocked, shocked to find politics on stage at The Public, even a mock assassination, and don’t want to be a part of it.
As a number of sources online have noted, Delta’s outrage seems rather selective. In 2012, The Guthrie Theatre and The Acting Company staged and toured a Julius Caesar with a slim black actor being “murdered” in the Senate as Caesar, midway through the Obama presidency. Some critics remarked on the parallel to the then-president, but Delta’s sponsorship there was unruffled. Why was the death of one presidential doppelganger OK while another crossed a line? I suspect the corporate PR department of Delta is unlikely to answer that question.
By pulling their support, have Delta and Bank of America censored Caesar and The Public? Are any First Amendment rights being trampled? On an absolute level – no. Media commentary cuts both ways. The participation of a member of the governing family, however, which has blended the personal and the political in countless ways, is the kernel of official censorship. Yet the show goes on (although it ends its brief run this week) and, so far as any reports have indicated, neither company attempted to get the production altered to make it more palatable to their tastes. Indeed, it’s unclear whether either company has had any representatives see Caesar in the park, or have made their decision, cloaked behind corporate statement, based solely on the media coverage.
Will there be a backlash to the actions of these companies? Will those who support The Public and free expression in the arts now make their feelings known to these companies, and others that might jump on the bandwagon? It’s very likely. It’s also possible that those who support these decisions will affirm it as well. People will refuse to fly Delta and keep their money with Bank of America, even as others will opt in to the carrier and the financial institution. Beyond merely expressing support and dissent, the era of dueling boycotts is probably upon us. Delta and B of A may find they have become the preferred outlets for the right and even the alt-right. By making this choice in their support, and withholding of support, of the arts, they have become politically-tinged corporations, aligned with a certain point of view.
The true danger here is that supporters of the arts will begin to interrogate possible beneficiaries of their intent for each and every undertaking, keeping funds from organizations and initiatives that might be aligning themselves politically by making any comment, right or left, Republican or Democrat, liberal or conservative. After all B of A judges that the production set out to “provoke and offend.” No doubt Eustis wanted to provoke, that’s his stock in trade. But offend? That’s less clear.
Will the fear of media backlash force organizations to choose between commenting in any manner through their work on what the prevailing issues of the day may be and gaining public or private funds to do their work? Could this be the harbinger of a forced conservatism in the arts, because so many companies cannot survive without the infusion of donated funds?
It’s worth noting that the National Endowment for the Arts felt it necessary to make clear it had not supported The Public’s Julius Caesar:
The National Endowment for the Arts makes grants to nonprofit organizations for specific projects. In the past, the New York Shakespeare Festival has received project-based NEA grants to support performances of Shakespeare in the Park by the Public Theater. However, no NEA funds have been awarded to support this summer’s Shakespeare in the Park production of Julius Caesar and there are no NEA funds supporting the New York State Council on the Arts’ grant to Public Theater or its performances.
The issue evolving with Caesar in Central Park is the canary in the coal mine, and an emblem of the potentially Faustian bargain one strikes when asking for major donations. Fortunately, The Public can sustain itself even with hundreds of thousands of dollars of lost support, but they are among the largest of theatres in the country. Indeed, they may take a page from the political playbook and raise new funds off of this action against their work. But smaller companies might not be so well positioned, resulting in a flight to safer work to avoid what has just happened. Strangely enough, it is the commercial theatre, which relies solely on ticket sales for revenue, which may be in the safer position to make political statements, as was the case with the cast of Hamilton sharing thoughts with Mike Pence. Their contract is directly with the audience, and if the work finds partisans for partisan messages, then the shows will run.
Vastly more people will hear about the Trumpian Caesar than can possibly see it. They will form opinions based on media accounts, and they can and will debate whether it’s right or wrong, proper or improper, wise or foolish to stage a show in which a presidential stand-in in killed, even in the context of a classic work, taught in many high schools, where few will be surprised by the emperor’s untimely end. But the actions of Delta and B of A, especially at a time when the administration in Washington has expressed a desire to shutter both the National Endowments for the Arts and Humanities, risk being the first steps in a new cultural McCarthyism. That serves no one who believes in free expression, whatever they have to say, no matter how ugly or difficult what they have to express may be to hear, no matter what their politics may be. Everyone should be concerned.
UPDATE: June 12, 2017, 5:30 pm: The Public Theater released a statement this afternoon in response to the controversy surrounding Julius Caesar. It reads, in full:
We stand completely behind our production of Julius Caesar. We recognize that our interpretation of the play has provoked heated discussion; audiences, sponsors and supporters have expressed varying viewpoints and opinions. Such discussion is exactly the goal of our civically-engaged theater; this discourse is the basis of a healthy democracy. Our production of Julius Caesar in no way advocates violence towards anyone. Shakespeare’s play, and our production, make the opposite point: those who attempt to defend democracy by undemocratic means pay a terrible price and destroy the very thing they are fighting to save. For over 400 years, Shakespeare’s play has told this story and we are proud to be telling it again in Central Park.
UPDATE: June 12, 2017, 7:00 pm: The Dramatists Legal Defense Fund has issued a statement of support for The Public Theater. It reads, in part:
Good taste is a matter of opinion and an “intention to provoke” may be an integral part of a play’s mission. The works of Shakespeare are replete with representations of regicide, and potentially objectionable and graphic violence of all sorts, but Delta doesn’t appear to have had a problem with the “values” or “taste” of such depictions before. The fact is that, for hundreds of years, this particular play has been understood to be a critique of political violence, not an endorsement of it. As director Oskar Eustis explained, “Julius Caesar can be read as a warning parable to those who try to fight for democracy by undemocratic means. To fight the tyrant does not mean imitating him.” So those criticizing this production for endorsing violence against President Trump seem to be willfully misinterpreting it, for their own political ends.
UPDATE: June 13, 2017, 8 am: From Oskar Eustis’s remarks before the opening night performance of Julius Caesar on June 12:
Julius Caesar warns about what happens when you try to preserve democracy by non-democratic means and again, spoiler alert, it doesn’t end up too good. But at the same time, one of the dangers that is unleashed by that is the danger of a large crowd of people manipulated by their emotions, taken over by leaders who urge them to do things that not only are against their interest, but destroy the very institutions that are there to serve and protect them. This warning is a warning that is in this show and we’re really happy to be playing that story for you tonight.
What I also want to say, and in this I speak, I am proud to say for The Public Theater past, present and I hope future, for the staff of The Public Theater, for the crews at The Public Theater, for the board of directors of the Public Theater, for Patrick Willingham and myself, when I say that we are here to uphold the Public’s mission, and The Public’s mission is to say that the culture belongs to everybody, needs to belong to everybody, to say that art has something to say about the great civic issues of our time and to say that like drama, democracy depends on the conflict of different points of view. Nobody owns the truth. We all own the culture.
The headlines were spurred by internal disputes between the board and staff of BCT regarding the nudity in the production. Executive artistic director Burgess Clark informed the press that he is on layoff at the moment, as an alternative to his resigning, in the face of what he sees as board meddling in his artistic prerogatives. He characterized what took place to Don Aucoin of the Globe as attempted censorship by two “overreactionary ninnies” on the company’s board.
* * *
Scene from One Flew Over The Cuckoo’s Nest, as seen in The Boston Globe
The fuller situation, as pieced together from e-mail correspondence with Clark and BCT executive director Toby Schine, a phone conversation with BCT board member Henry Lukas, and the press accounts, is as follows.
The not-for-profit BCT, through its program for young people aged 14 to 19, has been producing shows in the past few years geared towards more mature youths, including Rent, Spring Awakening and Reflections of a Rock Lobster. Cuckoo’s Nest was part of that progression of work. Clark says that he has done the full texts of those shows, not student editions.
When Cuckoo’s Nest was announced for production, there was no public notice that nudity would be part of the production, nor was the board apprised of it. Clark, in an e-mail, said that the nudity (one male actor, aged 21, enacted during an exchange that covers less than one page of the acting edition script) was not pre-planned, but, per Clark, originated at the actor’s suggestion at the first rehearsal. “I asked him if he had ever appeared nude onstage before and he said no,” wrote Clark, “but that he was willing. I thought it was a brave risk for a young actor to offer. I told him we would attempt it if it seemed organic. Five weeks later when we were in tech, we tried it and it played beautifully. The cast had become so comfortable with one another by that point that it was pretty casual and had just the right tone.”
Asked when he learned of the nudity, Schine, the executive director, wrote, “Burgess mentioned it to me two weeks in to the rehearsal process. He had considered it for the scene in the pre-production, but thought it better not to take the risk, given that we likely wouldn’t have an actor who was comfortable with the idea. On the first day of rehearsal, the actor playing McMurphy, Sam Mulcahy, asked if the scene would be played with him nude for a few moments – Burgess then reconsidered. He finally said he wanted to move ahead with it two weeks before we opened.”
For student performances, the actor wore boxer shorts, and for the first two general public performances (there were ten general audience shows in total), he wore them as well. The nudity was introduced at the third public performance and was in place for the remainder of the run.
“We had agreed to try it both ways—so we did it without the nude scene the first two performances and did on the next two,” wrote Clark. “The scene as we had rehearsed it (nude) worked much better with our audiences.” In light of that decision, Schine wrote, “We contacted the parents involved in the scene and had discussions with them, [and] had Sam Mulcahy sign a nudity waiver based on AEA’s for his protection and for the theatres.”
During the second week of the three-week run, following the introduction of the nude scene, all parties agree that two board members contacted Schine to discuss the nudity; one audience member also called the company with concerns. What is unclear is the exact nature of the board members’ communications, which has been described variously as “demands from the board members to cut the nude scene” to “a concern about process.” Arts Integrity has asked Schine for clarification, since he was on the calls, and none of the complaints went directly from board members to Clark; as of the morning of May 9, Schine’s e-mail has an auto-respond message saying he is out of the office for two days.
In response to the initial expressions of concern, heated or not, Clark writes, “Toby called Hank [Miller, the board president] back and Hank said, ‘This is an artistic decision and I have to trust you to make the right one. You have my support.’” Lukas, the board member interviewed, confirms that Miller gave his support and makes clear that the board never met or discussed the issue until after the production had closed, and that at no time did the board ask for the production to be altered. Clark acknowledges that the two board members were acting independently.
Clark has said that from the time the concerns were raised, he felt uncertain from day to day as to whether the show would go on. He characterizes the subsequent events as, “After daily harassment from these board members, who were acting completely without authority, I made my plan to resign. My board president and my executive producer collectively offered the alternative of being temporarily laid off rather than have me resign, until they could present a united front from the board. That has yet to take place.”
Subsequent to this, one of the two board members who took issue with the nudity resigned. The board met on Monday May 8, following which Lukas said, of the more advanced work Burgess has done with the older participants, “Burgess has done a great job.” He went on to say, “We’re hoping that we can sit down with Burgess, clarify the issues and have him back. Asked whether there have been any other organizational changes coming out of the meeting, Lukas responded, “Not that we’ve finalized, no.”
News accounts report that the staff has gone on “strike” in support of Clark, and BCT classes were canceled this past weekend. Asked about the strike, Schine responded, “I did not strike – I felt it was most advantageous for our process as an organization to stay on staff and work aggressively to move conversations forward between our Board President, Burgess and the Staff. As of this moment, I’m hopeful that we will be able to move past this challenge towards a very invigorated Boston Children’s Theatre. We’ve had very, very challenging conversations, and we have learned a lot as an organization about how we need to re-align our organizational spine.”
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Scene from One Flew Over The Cuckoo’s Nest at Boston Children’s Theatre (BCT publicity photo)
There are numerous issues bound up in the situation at Boston Children’s Theatre – censorship, public nudity, content for children’s theatre, not-for-profit leadership and governance among them – and they bear consideration, separately and together.
Taking censorship first, it is clear from all accounts that the board of trustees Boston Children’s Theatre did not attempt to censor Burgess Clark’s production of One Flew Over The Cuckoo’s Nest. While two board members independently did express concern – what they sought, how strongly, how often and at what volume is in dispute – they were not acting on behalf of the board. The board never met to discuss the issue while the show was running, and the board president was supportive of the company’s staff leadership in making the decision that they thought best under the circumstances.
In a letter to the BCT board, dated May 8, the National Coalition Against Censorship’s Director of Programs, Svetlana Mintcheva wrote, in part:
“Adults, possibly shamed about their own thoughts and fantasies, may occasionally be embarrassed, but if anyone can look at a nude and not see an issue, it is a child. Nevertheless, there are frequent calls to censor artwork containing nudity so as to “protect children” from what some claim is “indecent,” or simply to avoid controversy.
However, the U.S. Supreme Court has stated multiple times that simple nudity (i.e., representations of the nude body in a non-sexualized manner) is constitutionally protected expression. Schad v. Mount Ephraim (1981), Jenkins v. Georgia (1974), Osborne v. Ohio (1990).”
One Flew Over The Cuckoo’s Nest was originally seen as a three-act play on Broadway in 1963 for a short run and subsequently revised into a two act for an Off-Broadway revival in 1971. The Off-Broadway script is the one that is available for production through Samuel French. It carries a message from playwright Dale Wasserman saying:
“There is profanity and strong language in the play. Particularly as concerns educational institutions and community theatre, you may feel free to modify or delete language which may give offense in your community without, however, altering the basic text.”
What it does not have is any stage direction indicating nudity. Indeed, in the scene in question, the script notes that the character of McMurphy, when told to remove a towel around his waist, reveals silk boxers covered in white whales, saying:
“Ain’t they some shit? They was a present from a co-ed at Oregon State. She said I was some kind of symbol.”
Commenting on the addition of nudity in his production, Clark wrote, “When it was written, I doubt that would have even been an option.” At a separate point in the correspondence, he wrote, responding to a question about the dialogue about the boxers, “The dialogue was the same with and without the boxer shorts. The particular line ‘Ain’t they some shit?’ (which now referenced his manhood on display) got quite a laugh as I recall.”
In a phone call with Samuel French, the company’s executive director Bruce Lazarus said that BCT had not sought any permission to alter any of the show’s text. Stage directions and costuming, however, are not the same as text in some cases, and not always followed in staging shows unless the action is essential to the plot or the author’s clear intent.
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The issue of nudity on stage is a complicated one when working with professional actors, let alone young ones. Professional practice generally requires that any role requiring nudity be stated as such in a casting notice, and that the actor agree to it in writing at the time of contracting. In university theatres, many schools have guidelines that require nudity to be discussed prior to the start of production with a department chair, and state that no student should be required to perform nude or appear in a production with nudity if they do not wish to do so, among other protections (including prohibitions on photography and video recording of any nude scenes). The advance notices and stipulations are designed to insure that, in the power dynamic between a director (who also may be an employer or teacher) and their cast, no one is expected or pressured to participate in a process that makes them uncomfortable, or seen to be opposing the wishes of the majority opinion on such matters. Such guidelines have been increasingly implemented over the past few decades as protection for all concerned.
While the actor who appeared nude reportedly suggested the idea himself, and the other actors who appeared on stage in the scene who were under 18 received parental approval to participate, the process for nudity in a children’s theatre production could have been more thorough, consistent with professional or educational practice. Burgess professed to being surprised that the nudity had become “such an electric issue.” Separately, he wrote, “The nude scene is organic to the story, and I was proud to again be the first children’s’ theatre in the country to be staging full male nudity by a 21-year old actor.”
This also begs the question of whether it was appropriate to make the audience aware of the nudity, especially in the context of production by a youth theatre program that’s part of a children’s theatre company. “We gave ample warning of the nudity, language and adult themes,” Clark wrote. Schine wrote, “The audience was warned on signs upon entering the theatre, the website, during a curtain speech and in the playbill. During the tech process, we invited parents, theatre staff (those not working on the show already) and solicited opinions.”
However, while notice may have been given at the theatre, BCT’s website speaks only of “strong language and adult themes,” and notes that, “No one under 14 will be admitted without a guardian’s permission.” Unless there was a pop-up box in the ordering process, now disabled, there is not specificity about nudity in the online advisories. With the nudity only added to the show following the first two performances, the question of whether ticket buyers should have been or were advised about the nudity in advance of arriving at the performance, and how and when, remains unclear.
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Regardless of one’s moral, ethical or even legal perspective on the issues surrounding Cuckoo’s Nest at BCT, the problems that emerged would seem to stem in particular from a failure of communications within the totality of the organization. While board members certainly have the right to share their thoughts with the company’s leadership, if individual board members did in fact demand that the show be altered, they were placing the executive director in an untenable situation, since artistic and managerial leaders typically report jointly to the board, not to individual board members or factions within the board. If that was their demand, as characterized by Clark, then they should have asked for an emergency board meeting to address such an action, since artistic leaders are indeed empowered to make creative decisions for the organization, but are ultimately accountable to a board. If they were asking only for conversation, as characterized by Lukas, then Schine’s account of the conversations may have precipitated the kind of brinksmanship that arose, as Clark was relying upon what he was told by Schine, having never spoken directly to the complainants. The circumstances remain unclear.
While at professional organizations, or for that matter any not-for -profit, the danger of a board trying to micromanage, let alone dictate appropriate artistic content, is always a concern. Strong artsboards have grappled with the issues of governance and put in place procedures for communication and oversight of staff. However, when an artistic director has no direct communications with any of the board in a time of crisis, that is only bound to exacerbate issues. Additionally, when an organization is anticipating potentially controversial issues, not apprising the board in advance, or as soon as possible when such circumstances arise, is foolhardy, since the board’s support and guidance can help to protect against any blowback.
It’s impossible to say how this will all resolve, since the situation seems fluid. There appears to be a great deal more communication needed, ideally with all pertinent parties in the same room at the same time. As for the efforts of BCT to serve older youths beyond the nomenclature of “children’s theatre”? That seems a worthy goal, provided the company follows best practices, hewing to, as the vision statement on their website includes, “maintaining and understanding artistic discipline,” with “professionalism and professional standards play[ing] a key role.” That process calls for – and in light of the specific controversy you should pardon the expression – getting everything out into the open. Everyone in leadership, staff and board, at BCT, needs to be on the same page, on the same team, and acting in the very best interests of the young people they are there to train and serve.
Addendum: As this post was to be published, Don Aucoin at The Boston Globe published a commentary piece which also sought opinions from other youth theatre companies in the Boston area. You can read it here. It concludes with a paragraph that seems counterproductive to a positive theatergoing experience. It reads:
“Reassuring words, but it’s still probably wise for parents to be ready to clap their hands over the eyes or ears of their little ones when they take them to any theater, anywhere. Just in case.”
That seems an awful state of mind for parents to be in when taking their children to the theatre. If they have any concerns, they should call the theatre company and inquire as to specifics of content. Sitting poised for alarm seems no way for anyone to attend the theatre, and to do so seems a certain way of spoiling the show for both parents and children.
Update, May 11, 7 am: The Boston Globe reports that Burgess Clark and the Boston Children’s Theatre staff have returned to work at the company. A total of three board members, specifically board president Hank Miller as well as the two trustees who registered complaints about the nudity in Cuckoo’s Nest, have resigned. The company’s annual benefit, which generates roughly 10% of its income, has been postponed from next week until the autumn. A series of steps are being put into place to address longstanding financial instabilities which have come to light, as well as the company’s failure to compete mandatory tax filings since 2014.
Update, May 12, 8 am: Contrary to their account from one day earlier, The Boston Globe now reports that there is again a rift a Boston Children’s Theatre. Next steps seem to be uncertain following the seeming detente of the prior 24 hours.
This post will be updated as circumstances warrant.
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Note: in the interest of full disclosure, I acknowledge that I attended high school and was friends with BCT board member Lori Correale. While I was aware of her son’s participation in the company, I did not know she was a board member until I began researching this article, at which point I determined that I couldn’t interview her, in order to avoid any real or perceived conflict of interest. I did ask her for help with contact information for board members who might be willing to speak with me.
If you’re under 50, you likely aren’t familiar with the work of comedian Bill Dana. His most famous creation, a character seen on an array of television shows in the 1960s – Jose Jimenez – has been largely forgotten, especially since Dana stopped playing the character (save for one exception) in 1970. But the Jimenez character was a comedy phenomenon, appearing on Dana’s comedy albums in addition to his many sitcom and variety show appearances. Fans of the movie The Right Stuff may remember one of the Mercury astronauts repeating his catchphrase – “My name Jose Jimenez” – while in the flight capsule, a detail straight out of Tom Wolfe’s non-fiction book, prompted by sketches in which Jimenez was a reluctant astronaut.
Dana stopped performing the character 47 years before he passed away in 2017, because of lobbying from Hispanic groups who found the slow-talking, slow-witted Jimenez to be a deeply offensive stereotype. Jose Jimenez would be joined in oblivion a year later by the commercial pitchman Frito Bandito, consigned to the same fate as Jimenez for the same reason: being a negative stereotype, in this case a rootin’-tootin’ shoot ‘em up villain with a taste for Frito-Lays’ corn chip snack and a theme song that included the refrain, “I love Frito Corn Chips, I love them I do/I love Frito Corn Chips I’ll get them from you”. The Frito Bandito was as genuinely threatening as the Hamburglar and as authentic as Eli Wallach’s character in The Magnificent Seven, which is to say not at all.
Some might see it as unfair to impose this sensibility on a small family playhouse, but it seems that Juanito Bandito has been expanding his territory. Davis’s Instagram account promotes recent holiday shows featuring the character playing beyond his home of Garden City, with gigs at the Eccles Theatre in Logan and the Grand Theatre in Salt Lake City. There have also been student performances for elementary schools, indoctrinating children into the harmless good fun of ethnic ridicule at the earliest opportunity.
