Let’s start with the basics: no one can possibly prevent critics from reviewing shows if they want to do. Whether it’s requested or even imposed by theatre company, a venue, a rights holder, or an author, members of the press – just like the public – can always buy a ticket to a theatrical production and express what they think. To actively prevent members of the press from entering a theatre is at least foolhardy if not potentially discriminatory; to prevent anyone from writing or broadcasting their opinion is a denial of their rights to speech. Just so we’re all on the same page.

Ari Fliakos, Kate Valk and Scott Renderer in the Wooster Group production of Pinter’s The Room (Photo by Paula Court)

That’s why a recent press release from The Wooster Group and the Los Angeles venue REDCAT quickly stirred up a hornet’s nest. It stated that the license granted to The Wooster Group for the REDCAT run of the Group’s production of Harold Pinter’s The Room, beginning tomorrow, contained the admonition, “There may be absolutely No reviews of this production; e.g. newspaper, website posts etc.” It also appeared in a press release issued by The Wooster and REDCAT, after an opening paragraph which stated “Samuel French, Inc., which manages the United States rights for Harold Pinter’s work, restricts critics from reviewing the world premiere of the Group’s production of The Room at REDCAT.”

Very little angers and piques the interest of the press more than being told what they can’t do, so it’s no surprise that following the initial word of the issue coming from the website Bitter Lemons, both the Los Angeles Times and New York Times did features on the ostensible critical blackout. But there’s more to the story, which both Times recounted.

In short, The Wooster Group acquired a license for “advance” presentations of The Room last fall, at their home The Performing Garage in New York, where it played an extended run in October and November of 2015. At the time the Group announced that engagement, press releases issued by the company spoke of the planned “premiere” at REDCAT, a return run in New York, and plans to make The Room the first of a trilogy of Pinter productions (The Wooster Group has subsequently spoken of plans to take The Room to France).

However, Bruce Lazarus, executive director of Samuel French, which licenses Pinter’s work in the U.S. on behalf of the Pinter estate’s London agent, says that the announcement of any presentation beyond the original New York license caught the company by surprise. The Wooster Group has confirmed that they had not secured licenses for any of the subsequent engagements beyond November 2015, with their general manager Pamela Reichen writing in an e-mail, “Our plans to do further Pinter pieces besides The Room were preliminary and tentative, when we first announced performances of The Room in New York City.  We did not have specific dates for these further productions, and so had not yet made an application for rights to Samuel French.”

Both parties agree that they began discussions about future licenses immediately after French learned of the company’s plans, but the pace and substance of those negotiations and terms are in dispute. What is not in dispute is that by the time rights for the REDCAT engagement were completed, the prohibition against opening the production for review was in place.

When this first hit the press, Lazarus issued a statement that read in part:

Samuel French is licensing agent representing the wishes of the Harold Pinter estate. The Wooster Group announced the Los Angeles production of Pinter’s “The Room” before securing the rights.  Had The Wooster Group attempted to secure the rights to the play prior to announcing the production, the estate would have withheld the rights.

Lazarus maintains that the Pinter estate had not been prepared to grant any subsequent license, because the British agent had lined up a “first class” production in the UK, which had an option for a US transfer. Lazarus points out that French could have simply said no. He said that French persuaded the UK agent to allow the LA production, with restrictions. “We said yes because they begged, said Lazarus, “They said, ‘We’ll lose money’.” At first the license was written so as not to permit any promotion of the production, but that was scaled back to being a limitation on reviews.

Queried about the “no reviews” language, Lazarus says French, “made it clear what we meant: don’t invite the critics and don’t provide press tickets. We were under no illusion that the press couldn’t buy a ticket and that if they did so, it wasn’t a breach of contract. We weren’t denying freedom of speech.” That said, whatever the content of the conversations were, in stark black and white contract language, the suggestion of a press exclusion appeared much more blunt, and became even more so when deployed in a press release verbatim. Lazarus allowed that in the future, should such stipulations be made, the language will be more specific.

Ari Fliakos in the Wooster Group production of Pinter’s The Room (Photo by Paula Court)

In the Wooster/REDCAT release, Mark Murphy, Executive Director of REDCAT, says that the review restrictions were “’highly unusual and puzzling,’ adding that, ‘This attempt to restrict critical discussion of such an important production in print and online is deeply troubling, with the potential for severe financial impact.’” In point of fact, review restrictions have become increasingly frequent, for any number of reasons. Just last summer, Connecticut critics were strongly urged not to review A.R. Gurney’s Love and Money at the Westport Country Playhouse because the show’s ‘true’ premiere was to take place immediately following its Connecticut run at New York’s Signature Theatre. Several years ago, national press was “uninvited” from the premiere of Tony Kushner’s The Intelligent Homosexual’s Guide at the Guthrie Theatre once a commercial producer optioned the piece. Major press was asked to skip The Bridges of Madison County when it was first seen at Williamstown Theatre Festival. I can think back almost 30 years to a time when I pleaded with a New York Times critic not to attend a production at Hartford Stage, even though local press had attended. And let’s not forget how long Spider-Man: Turn Off The Dark spent in preview before the press finally got fed up and covered it despite the stated preferences of the production. Whether or not one likes the practice of letting producers decide when reviews are or are not “permitted” (Jeremy Gerard of Deadline, previously of Bloomberg and Variety, stakes out his position in a recent column), whether one feels the press is honorable or complicit in how they handle these requests on a case by case basis, it’s hardly a rare practice.

In the case of how the press was handled in connection with The Wooster Group’s unreviewed advance showings of The Room in New York in the fall, Pamela Reichen, general manager of the company, who responded to e-mail questions, writes, “The New York performances were not open to the press. We develop our work over long periods of time that involve work-in-progress showings – like the October-November showings of The Room – at our home theater, The Performing Garage.  We only open a show for review in New York or elsewhere once development is complete. The decision not to invite press to the advance showings was our decision, not a stipulation from Samuel French.  It was our intention to open the show for review in Los Angeles.”

In a phone conversation about this situation, Jeremy Gerard of Deadline noted, “There’s no other kind of journalism where the journalist says, ‘Is it OK if I report this kind of story?’” That said, the allowance for theatrical productions to be developed and previewed in front of paying audiences has become generally standard practice and important to countless creative artists, the result of a détente between the natural instincts of the press and the creative process of artists.

It’s impossible not to wonder whether the license was actually being denied because of dissatisfaction with the advance presentation in New York by French or the estate. Lazarus says that’s not the case. “No,” he stated, “This is not a value judgment on the production.” That seems consistent with the account by Pamela Reichen, who writes, “We received an appreciative note from the representative of Samuel French who attended an advance showing performance. We have not received any other communication from the estate or Samuel French relating to the concept or execution of our production.”

Asked whether the current denial of right to perform The Room for the foreseeable future after the Los Angeles run would effect their exploration of other Pinter works, Reichen wrote, “Because the rights are not being made available to us, we have no plans to explore other Pinter works. No significant work had begun on them. But our inability to perform The Room in New York or on tour will cause The Wooster Group a significant financial loss. We are a not-for-profit organization, and we fund our own productions. We therefore must recoup our investment over time through long performance runs and touring fees.”

*   *   *

So let’s cull this down to the basics.

The Wooster Group entered into an agreement to premiere their production of The Room in Los Angeles without having secured the rights to do so, and predicated company finances on presentations of the work beyond the original advance shows in New York in the fall 2015. Whatever the circumstances of the negotiations for those rights, The Wooster Group moved forward with an additional engagement, and was planning for yet more, with no assurance that they could do the piece.

In ultimately granting the rights for the Los Angeles engagement, Samuel French, on behalf of the Pinter estate’s wishes, stipulated that the show at REDCAT should not be open for reviews, but with language that can be construed as a broadly sweeping admonition over any reviews appearing, as opposed to being merely that the venue not facilitate the attendance of critics. Could French and the Pinter estate have allowed the brief LA engagement to proceed with no restrictions, without materially affecting the fortunates of a UK first class production and avoiding the resulting fuss? Sure, but ultimately, it was their call.

In accepting the terms as set forth by French, The Wooster Group and REDCAT apparently still bridled at them, and so instead of asking critics not to attend, they issued a media release which implied an actual, but entirely unenforceable, press ban by French.

I would suggest that The Wooster Group and REDCAT, instead of acquiescing to their agreement and abiding by its spirit, issued the press release they did precisely to incite the press to greater interest in covering The Room, and it worked like a charm. It resulted in more national press than a 10-day run in Los Angeles might have otherwise received, and it prompted the American Theatre Critics Association to issue a statement in support of the right of the arts press to cover work as they see fit. Editors are reportedly debating whether or not to honor – is it a ban or is it a request – the position that the Los Angeles production isn’t officially open for review, even when it’s perfectly clear that they can do as they wish and always could.

Ultimately, The Wooster Group and REDCAT may have won the battle, but they’ve lost the war, since there won’t be any further Pinter work by the company at this time. But they did successfully turn the press account of the situation away from their inability to secure rights on terms they found acceptable into one of press freedom. However, the impact of heightened alertness by the press to requests that work be protected from review in some cases or for some period of time may prove detrimental to other companies and productions in the wake of this scenario. I have always supported the right of artists and companies to explore their work in front of audiences for a reasonable period of time before critics weigh in, and will continue to do so, but in all cases, the press will have the final word. I’m not sure this situation was ultimately beneficial to the arts community because it puts a longstanding, unwritten mutual agreement under the glare of scrutiny that one day may have far-reaching implications.

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

Let’s start with the basics: no one can possibly prevent critics from reviewing shows if they want to do. Whether it’s requested or even imposed by theatre company, a venue, a rights holder, or an author, members of the press – just like the public – can always buy a ticket to a theatrical production and express what they think. To actively prevent members of the press from entering a theatre is at least foolhardy if not potentially discriminatory; to prevent anyone from writing or broadcasting their opinion is a denial of their rights to speech. Just so we’re all on the same page.

Ari Fliakos, Kate Valk, and Scott Renderer in The Wooster Group’s production of Pinter’s The Room (photo by Paula Court)

That’s why a recent press release from The Wooster Group and the Los Angeles venue REDCAT quickly stirred up a hornet’s nest. It stated that the license granted to The Wooster Group for the REDCAT run of the Group’s production of Harold Pinter’s The Room, beginning tomorrow, contained the admonition, “There may be absolutely No reviews of this production; e.g. newspaper, website posts etc.” It also appeared in a press release issued by The Wooster and REDCAT, after an opening paragraph which stated “Samuel French, Inc., which manages the United States rights for Harold Pinter’s work, restricts critics from reviewing the world premiere of the Group’s production of The Room at REDCAT.”

Very little angers and piques the interest of the press more than being told what they can’t do, so it’s no surprise that following the initial word of the issue coming from the website Bitter Lemons, both the Los Angeles Times and New York Times did features on the ostensible critical blackout. But there’s more to the story, which both Times recounted.

In short, The Wooster Group acquired a license for “advance” presentations of The Room last fall, at their home The Performing Garage in New York, where it played an extended run in October and November of 2015. At the time the Group announced that engagement, press releases issued by the company spoke of the planned “premiere” at REDCAT, a return run in New York, and plans to make The Room the first of a trilogy of Pinter productions (The Wooster Group has subsequently spoken of plans to take The Room to France).

However, Bruce Lazarus, executive director of Samuel French, which licenses Pinter’s work in the U.S. on behalf of the Pinter estate’s London agent, says that the announcement of any presentation beyond the original New York license caught the company by surprise. The Wooster Group has confirmed that they had not secured licenses for any of the subsequent engagements beyond November 2015, with their general manager Pamela Reichen writing in an e-mail, “Our plans to do further Pinter pieces besides The Room were preliminary and tentative, when we first announced performances of The Room in New York City.  We did not have specific dates for these further productions, and so had not yet made an application for rights to Samuel French.”

Both parties agree that they began discussions about future licenses immediately after French learned of the company’s plans, but the pace and substance of those negotiations and terms are in dispute. What is not in dispute is that by the time rights for the REDCAT engagement were completed, the prohibition against opening the production for review was in place.

When this first hit the press, Lazarus issued a statement that read in part:

Samuel French is licensing agent representing the wishes of the Harold Pinter estate. The Wooster Group announced the Los Angeles production of Pinter’s “The Room” before securing the rights.  Had The Wooster Group attempted to secure the rights to the play prior to announcing the production, the estate would have withheld the rights.

Lazarus maintains that the Pinter estate had not been prepared to grant any subsequent license, because the British agent had lined up a “first class” production in the UK, which had an option for a US transfer. Lazarus points out that French could have simply said no. He said that French persuaded the UK agent to allow the LA production, with restrictions. “We said yes because they begged, said Lazarus, “They said, ‘We’ll lose money’.” At first the license was written so as not to permit any promotion of the production, but that was scaled back to being a limitation on reviews.

Queried about the “no reviews” language, Lazarus says French, “made it clear what we meant: don’t invite the critics and don’t provide press tickets. We were under no illusion that the press couldn’t buy a ticket and that if they did so, it wasn’t a breach of contract. We weren’t denying freedom of speech.” That said, whatever the content of the conversations were, in stark black and white contract language, the suggestion of a press exclusion appeared much more blunt, and became even more so when deployed in a press release verbatim. Lazarus allowed that in the future, should such stipulations be made, the language will be more specific.

Ari Fliakos in The Wooster Group’s production of Pinter’s The Room (photo by Paula Court)

In the Wooster/REDCAT release, Mark Murphy, Executive Director of REDCAT, says that the review restrictions were “’highly unusual and puzzling,’ adding that, ‘This attempt to restrict critical discussion of such an important production in print and online is deeply troubling, with the potential for severe financial impact.’” In point of fact, review restrictions have become increasingly frequent, for any number of reasons. Just last summer, Connecticut critics were strongly urged not to review A.R. Gurney’s Love and Money at the Westport Country Playhouse because the show’s ‘true’ premiere was to take place immediately following its Connecticut run at New York’s Signature Theatre. Several years ago, national press was “uninvited” from the premiere of Tony Kushner’s The Intelligent Homosexual’s Guide at the Guthrie Theatre once a commercial producer optioned the piece. Major press was asked to skip The Bridges of Madison County when it was first seen at Williamstown Theatre Festival. I can think back almost 30 years to a time when I pleaded with a New York Times critic not to attend a production at Hartford Stage, even though local press had attended. And let’s not forget how long Spider-Man: Turn Off The Dark spent in preview before the press finally got fed up and covered it despite the stated preferences of the production. Whether or not one likes the practice of letting producers decide when reviews are or are not “permitted” (Jeremy Gerard of Deadline, previously of Bloomberg and Variety, stakes out his position in a recent column), whether one feels the press is honorable or complicit in how they handle these requests on a case by case basis, it’s hardly a rare practice.

In the case of how the press was handled in connection with The Wooster Group’s unreviewed advance showings of The Room in New York in the fall, Pamela Reichen, general manager of the company, who responded to e-mail questions, writes, “The New York performances were not open to the press. We develop our work over long periods of time that involve work-in-progress showings – like the October-November showings of The Room – at our home theater, The Performing Garage.  We only open a show for review in New York or elsewhere once development is complete. The decision not to invite press to the advance showings was our decision, not a stipulation from Samuel French.  It was our intention to open the show for review in Los Angeles.”

In a phone conversation about this situation, Jeremy Gerard of Deadline noted, “There’s no other kind of journalism where the journalist says, ‘Is it OK if I report this kind of story?’” That said, the allowance for theatrical productions to be developed and previewed in front of paying audiences has become generally standard practice and important to countless creative artists, the result of a détente between the natural instincts of the press and the creative process of artists.

It’s impossible not to wonder whether the license was actually being denied because of dissatisfaction with the advance presentation in New York by French or the estate. Lazarus says that’s not the case. “No,” he stated, “This is not a value judgment on the production.” That seems consistent with the account by Pamela Reichen, who writes, “We received an appreciative note from the representative of Samuel French who attended an advance showing performance. We have not received any other communication from the estate or Samuel French relating to the concept or execution of our production.”

Asked whether the current denial of right to perform The Room for the foreseeable future after the Los Angeles run would effect their exploration of other Pinter works, Reichen wrote, “Because the rights are not being made available to us, we have no plans to explore other Pinter works. No significant work had begun on them. But our inability to perform The Room in New York or on tour will cause The Wooster Group a significant financial loss. We are a not-for-profit organization, and we fund our own productions. We therefore must recoup our investment over time through long performance runs and touring fees.”

*   *   *

So let’s cull this down to the basics.

The Wooster Group entered into an agreement to premiere their production of The Room in Los Angeles without having secured the rights to do so, and predicated company finances on presentations of the work beyond the original advance shows in New York in the fall 2015. Whatever the circumstances of the negotiations for those rights, The Wooster Group moved forward with an additional engagement, and was planning for yet more, with no assurance that they could do the piece.

In ultimately granting the rights for the Los Angeles engagement, Samuel French, on behalf of the Pinter estate’s wishes, stipulated that the show at REDCAT should not be open for reviews, but with language that can be construed as a broadly sweeping admonition over any reviews appearing, as opposed to being merely that the venue not facilitate the attendance of critics. Could French and the Pinter estate have allowed the brief LA engagement to proceed with no restrictions, without materially affecting the fortunates of a UK first class production and avoiding the resulting fuss? Sure, but ultimately, it was their call.*

In accepting the terms as set forth by French, The Wooster Group and REDCAT apparently still bridled at them, and so instead of asking critics not to attend, they issued a media release which implied an actual, but entirely unenforceable, press ban by French.

I would suggest that The Wooster Group and REDCAT, instead of acquiescing to their agreement and abiding by its spirit, issued the press release they did precisely to incite the press to greater interest in covering The Room, and it worked like a charm. It resulted in more national press than a 10-day run in Los Angeles might have otherwise received, and it prompted the American Theatre Critics Association to issue a statement in support of the right of the arts press to cover work as they see fit. Editors are reportedly debating whether or not to honor – is it a ban or is it a request – the position that the Los Angeles production isn’t officially open for review, even when it’s perfectly clear that they can do as they wish and always could.

Ultimately, The Wooster Group and REDCAT may have won the battle, but they’ve lost the war, since there won’t be any further Pinter work by the company at this time. But they did successfully turn the press account of the situation away from their inability to secure rights on terms they found acceptable into one of press freedom. However, the impact of heightened alertness by the press to requests that work be protected from review in some cases or for some period of time may prove detrimental to other companies and productions in the wake of this scenario. I have always supported the right of artists and companies to explore their work in front of audiences for a reasonable period of time before critics weigh in, and will continue to do so, but in all cases, the press will have the final word. I’m not sure this situation was ultimately beneficial to the arts community because it puts a longstanding, unwritten mutual agreement under the glare of scrutiny that one day may have far-reaching implications.

The two sentences which finish with an asterisk above were inadvertently left out of the post when it first appeared, and were added approximately 90 minutes after this piece first went online. Bruce Lazarus’s title at Samuel French was incorrect in the original post and the text has been altered to reflect his correct position at the company.

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

Not to dash anyone’s dreams, but I think it’s fair to say that the majority of the hundreds of thousands of students who participate in high school theatre annually will not go on to professional careers in the arts. The same holds true for the student musicians in orchestras, bands and ensembles. They all benefit from the experience in many ways: from the teamwork, the discipline and the appreciation of the challenge and hard work that goes into such endeavors, to name but a few attributes.

But for some students, those high school experiences may be the foundation of a career, of a life, and it’s an excellent place for skills and principles to be taught. As a result, I have, on multiple occasions, heard creative artists talk about their wish that students could learn about the basics of copyright, which can for writers, composers, designers, and others be the root of how they’ll be able to make a life in the creative arts, how their work will reach audiences, how they’ll actually earn a living.

I’m not suggesting that everyone get schooled in the intricacies of copyright law, but that as part of the process of creating and performing shows, students should come to understand that there is a value in the words they speak and the songs they sing, a concept that’s increasingly frayed in an era of file sharing, sampling, streaming and downloading. Creative artists try to make this case publicly from time to time, whether it’s Taylor Swift pulling her music from Spotify over the service’s allegedly substandard rate of compensation to artists or Jason Robert Brown trying to explain why copying and sharing his sheet music is tantamount to theft of his work. But without an appreciation for what copyright protects and supports, it’s difficult for the average young person to understand what this might one day mean to them, or to the people who create work that they love.

*   *   *

All of this brings me to a seemingly insignificant example, that of a production of the musical The Wiz at Skyline High School in Oakland, California back in 2011. Like countless schools, Skyline mounted a classic musical for their students’ education and enjoyment, in this case playing eight performances in their 900 seat auditorium, charging $10 a head. These facts might be wholly unremarkable, except for one salient point: the school didn’t pay for the rights to perform the show.

The licensing house Samuel French only learned this year about the production, and consequently went about the process of collecting their standard royalty. Over the course of a few months, French staff corresponded with school staff and volunteers connected with the drama program, administration and ultimately the school system’s attorney. French’s executive director Bruce Lazarus shared the complete correspondence with me, given my interest in authors’ rights and in school theatre.

I’m very sympathetic to any school that wants to give their students a great arts experience, and so the drama advisor’s discussion in the correspondence of limited resources and constrained budgets really struck me. Oakland is a large district and Skyline is an inner-city school; I have no reason to doubt their concerns about the quoted royalty costs for The Wiz being beyond their means. But their solution to this quandary took them off course.

Skyline claims that they did their own “adaptation” of The Wiz, securing music online and assembling their own text, under the belief that this released them from any responsibility to the authors and the licensing house. While they tagged their ads for the show with the word “adaptation,” it’s a footnote, and if one looks at available photos or videos from the production, it seems pretty clear that their Wiz is firmly rooted in the original material, even the original Broadway production. Surely the text was a corruption of the original and perhaps songs were reordered or even eliminated. It’s also worth noting that Skyline initially inquired about the rights, but then opted to do the show without an agreement.

*   *   *

OK, so one school made a mistake over three and a half years ago – what’s the big deal? That brings me to the position taken by the Oakland Unified School District regarding French’s pursuit of appropriate royalties. OUSD has completely denied that French has any legitimate claim per their attorney, Michael L. Smith. In a mid-October letter, Mr. Smith cites copyright law statute of limitations, saying that since it has been more than three years since the alleged copyright violation, French is “time barred from any legal proceeding.” Explication of that position constitutes the majority of the letter, save for a phrase in which Mr. Smith states, “As you are likely aware, there are limitations on exclusive rights that may apply in this instance, including fair use.”

As I’m no attorney, I can’t research or debate the fine points of statutes of limitation, either under federal or California law. However, I’ve read enough to understand that there’s some disagreement within the courts, as to when the three-year clock begins on a copyright violation. It may be from the date of the alleged infringement itself, in this case the date of the March and April 2011 performances, but it also may be from the date the infringement is discovered, which according to French was in September 2014. We’ll see how that plays out.

The passing allusion to fair use provisions is perhaps of greater interest in this case. Fair use provides for the utilization of copyrighted work under certain circumstances in certain ways. Per the U.S. Copyright office:

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

*   *   *

Rather than parsing the claims and counterclaims between Samuel French and the school district, I consulted an attorney about fair use, though in the abstract, not with the specifics of the show or school involved. I turned to M. Graham Coleman, a partner at the firm of Davis Wright Tremaine in their New York office. Coleman works in all legal aspects of live theatre production and counsels clients on all aspects of copyright and creative law. He has also represented me on some small matters.

“In our internet society, “ said Coleman, “there is a distortion of fair use. We live in a world where it’s so easy to use someone’s proprietary material. The fact that you based work on something else doesn’t get you off the hook with the original owner.”

Without knowing the specifics of Skyline’s The Wiz, Coleman said, “They probably edited, they probably varied it, but they probably didn’t move it into fair use. Taking a protectable work and attempting to ‘fair use’ it is not an exercise for the amateur.”

Regarding the language in fair use rules that cite educational purposes, Coleman said, “Regardless of who you are, once you start charging an audience admission, you’re a commercial enterprise. Educational use would be deemed to mean classroom.”

While Coleman noted that the cost of pursuing each and every copyright violation by schools might be cost prohibitive for the rights owners, he said that, “It becomes a matter of principle and cost-effectiveness goes out the window. They will be policed. Avoiding doing it the bona fide way will catch up with you.”

*   *   *

That’s where the Skyline scenario gets more complicated – because their “adaptation” of The Wiz wasn’t their only such appropriation of copyrighted material. In 2012, the school produced a stage version of Julie Taymor’s Beatles-inspired film Across The Universe, billing it accordingly and crediting John Lennon and Paul McCartney as the songwriters. The problem is, there is no authorized stage adaptation of the film, although there have been intermittent reports that Taymor is contemplating her own, which her attorney affirmed to me. In this case, the Skyline production is still within the statute of limitations for a copyright claim.

I attempted to contact both the principal of Skyline High and the superintendent of the school district about this subject, ultimately reaching the district’s director of communications Troy Flint. In response to my questions about The Wiz, Flint said, “We believe that we were within our rights. I can’t go into detail because I’m not prepared to discuss our legal strategy. We believe this use was permissible.”

He couldn’t speak to Across The Universe; it seemed that I may have been the first to bring it to the district’s attention. Flint said he didn’t know whether other Skyline productions, such as Hairspray and Dreamgirls, had been done with licenses from rights companies, although I was able to confirm independently that Hairspray was properly licensed. Which raises the question of why standard protocol for licensing productions was followed with some shows and not others.

*   *   *

My fundamental interest is in seeing vital and successful academic theatre. So while their identities are easily accessible, I’ve avoided naming the teacher, principal and even the superintendent at Skyline because I don’t want to make this one example personal. But I do want to make it an example.

Whether or not I, or anyone, personally agree with the provisions of U.S. copyright law isn’t pertinent to this discussion, and neither is ignorance of the law. The fact is that the people who create work (and their heirs and estates) have the right to control and benefit from that work during the copyright term. Whether the content is found in a published script and score, shared on the internet or transcribed from other media, the laws hold.

If the Skyline examples were the sole violations, a general caution would be unnecessary, but in the past three months alone, Samuel French has discovered 35 unlicensed/unauthorized productions at schools and amateur companies, according to the company’s director of licensing compliance Lori Thimsen. Multiply that out over other rights houses, and over time, and the number is significant. This even happens at the professional level.

At the start, I suggested that students should know the basic of copyright law, both out of respect for those who might make their careers as creative artists, as well as for those who will almost certainly be consumers of copyrighted content throughout their lives. But it occurs to me that these lessons are appropriate for their teachers as well, notwithstanding the current legal stance at Skyline High. There can and should be appreciation for creators’ achievements as well as their rights, and appropriate payment for the use of their work – and those who regularly work with that material should make absolutely certain they know the parameters, to avoid and prevent unwitting, and certainly intentional, violations.

*   *   *

One final note: some of you may remember Tom Hanks’s Oscar acceptance speech for the film Philadelphia, when he paid tribute to his high school drama teacher for playing a role in his path to success. It might interest you to know that Hanks attended Skyline High and thanks in part to a significant gift from him, the school’s theatre – where the shows in question were performed – was renovated and renamed for that teacher, Rawley Farnsworth, in 2002. Hanks also used the occasion of the Oscars to cite Farnsworth and a high school classmate as examples of gay men who were so instrumental in his personal growth.

I have no doubt that there are other such inspirational teachers and students at Skyline High today, perhaps working in the arts there under constrained budgets and resources. Yet regardless of statutes of limitations, it seems that the Rawley T. Farnsworth Theatre should be a place where respect for and responsibility to artists is taught and practiced, as a fundamental principle – and where students get to perform works as their creators intended, not as knockoffs designed to save money.

*   *   *

Update, December 3, 2014, 4 pm: This post went live at at approximately 10:30 am EST this morning. I received an e-mail from OUSD’s director of communications Troy Flint at approximately 1 pm asking whether the post was finished and whether he could add to his comments from yesterday. I indicated that the post was live and provided a link, saying that I have updated posts before and would consider an addendum with anything I found to be pertinent. He just called to provide the following statement, which I reproduce in its entirety.

Whatever the legality of the situation at Skyline regarding The Wiz and Across The Universe, the fundamental principle is that we want the students to respect artists’ work and what they put into the product. My understanding is that Skyline’s use of this material is legally defensible, but that’s not the best or highest standard.

As we help our students develop artistically, we want to make sure they have the proper respect and understanding of the work that’s involved with creating a play for the stage or the cinema. So we have spoken with the instructors at Skyline about making sure they follow all the protocols regarding rights and licensing, because we don’t want to be in a position of having the legality of one of our productions questioned as they are now and we don’t want to be perceived as taking advantage of artists unintentionally as we are now. It’s not just a legal issue but an issue of educating students properly.

While everyone I have spoken with about this issue disagrees fairly strenuously with the opinion of the OUSD legal counsel, it’s encouraging that the district wants to stand for artists’ rights and avoid this sort of conflict going forward. I hope they will ultimately teach not only the principle, but the law. As for past practice, I leave that to the lawyers.

Update, December 3, 2014, 7 pm: Following my update with the statement from the school district, I received a statement of response from Bruce Lazarus, executive director of Samuel French. It is excerpted here.

By withholding the proper royalty for The Wiz from the authors, the OUSD is communicating to their students that artistic work is worthless. Is this an appropriate message for any budding artist? That you too can grow up to write a successful musical…only to then have a school district destroy your work and willfully withhold payment?

It needs to be made clear to the OUSD and the students involved that an artist’s livelihood depends on receiving payment for their creative work. This is how artists make a living. How they pay the rent and feed their families. It is simply unbelievable that this issue can be tossed aside with an “Our bad, won’t happen again” response without consideration of payment for their unauthorized taking of another’s property.

Are other students of the OUSD, those that are not artists, being educated to expect payment for their services rendered when they presumably become doctors, engineers, entrepreneurs and the next leaders of the Bay Area? Of course they are. And so it goes for the artists in your classrooms, who should be able to grow up KNOWING there is protection for their future work and a real living wage to be made.

Equal time granted, I leave it the respective parties to resolve the issue of what has already taken place.

“First, let’s define what we mean by ‘changes’.”

Hands on a Hardbody at Houston’s Theatre Under The Stars

This statement came up not once but twice in my conversation with Bruce Lumpkin, artistic director of Houston’s Theatre Under The Stars and director of their current production of the musical Hands on a Hardbody. The comment arose when I asked Lumpkin specific questions about my communications with Hardbody creators Amanda Green and Doug Wright. Green, who attended the show’s opening at TUTS, detailed a fairly extensive list of alterations to the musical, none of which had been discussed with the authors or their licensing house prior to production.

[I should note from the outset that I was first made aware of the authors’ concerns by Bruce Lazarus, executive director of Samuel French, which licenses the show. He reached out to me because of my prior writing on the subject of authors’ rights and because we know each other from my one-year tenure in 2012-13 on the Samuel French advisory committee (two meetings; $500 total honorarium). I say this by way of full disclosure.]

Having attended the opening night of Hardbody at Lumpkin’s invitation, Green described to me her experience in watching the show. “They started the opening number and I noticed that some people were singing solos other than what we’d assigned. As we neared the middle of the opening number, I thought, ‘what happened to the middle section?’” She said that musical material for Norma, the religious woman in the story, “was gone.”

When the second song began, Green recalls being surprised, saying, “I thought, ‘so we did put this number second after all’ before realizing that we hadn’t done that.” As the act continued, Green said, “I kept waiting for ‘If I Had A Truck’ and it didn’t come.” She went on to detail a litany of ways in which the show in Houston differed from the final Broadway show, including reassigning vocal material to different characters within songs, and especially the shifting of songs from one act to another, which had the effect of removing some characters from the story earlier than before. She also said that interstitial music between scenes had been removed and replaced with new material. Having heard Green’s point by point recounting of act one changes, I suggested we could dispense with the same for act two.

Hands on a Hardbody on Broadway

When I asked Lumpkin about the nature of changes to the show. His response was, “I didn’t change lyrics, I didn’t change songs, I didn’t change dialogue. I only changed their order.” In response to my query as to why he felt he could make such shifts, Lumpkin cited having seen the show twice on Broadway and having seen the running order of songs as printed in the program each time differing, in addition to yet other song rundowns on inserts to the program.

“I thought that perhaps maybe I could put together a different order thinking that perhaps if they don’t like it I’ll put it back,” said Lumpkin. “There was no new vision for the show. It was just a matter of the order of the songs in the show. I knew there was a possibility they wouldn’t like it. I was totally upfront.”

Had he notified the authors or the licensing house in advance? “I guess I didn’t. I didn’t think changing the order with them coming [to the opening]. It wasn’t like cutting a number.” He continued, “I’ve done a lot of this before. I did this with Stephen Schwartz and Charles Strouse on Rags and they worked with me. But in that case it was about cutting some subplots and characters. When we did Godspell, I told Stephen Schwartz that the song order was kind of arbitrary and he let me work with it.”

I asked Lumpkin whether he would have made any changes to Hardbody, which he said he did over three days only after rehearsals had begun, if none of the authors had accepted his invitation to the opening. “Probably not,” he replied. “I wasn’t trying to reinvent the wheel. The only struggle they had was the order.” When I asked how he knew of the author’s “struggle,” he once again cited the various song lists he’d seen when attending the show on Broadway.

Lumpkin also suggested that there was some discrepancy between the score and the text he received, saying such things were common with licensed works. When I asked, “Did you ask for clarification from the source?” he responded, “No, I don’t think I’ve ever done that. I take their source material and we figure it out on our own.”

Hands on a Hardbody at Houston’s Theatre Under The Stars

Noting that I was asking a pointed question, I inquired, “Having signed a license agreement for the show, did you believe you had the legal and ethical right to make the changes you did?” Lumpkin declined to answer. But as we concluded our talk, he said that he knows how the authors feel, saying that he too had done original shows.

“I didn’t think that moving four numbers was a big deal. We’ve changed it back and I don’t think anyone in the audience knows the difference. Except me.”

However, Green had pointed out that opening night was also a press night. “He can say it can be turned back,” observed Green, “but it was already being reviewed that night.” And she clearly differs as to the extent of the changes.

Describing her post-show conversation with Lumpkin in Houston, Green says, “When it was over, I was flabbergasted. I had been planning to go to the cast party, but I couldn’t. Bruce came over to me and said, ‘I know you’re mad and I know you hate it, but you know it works better’.” Green continued: “He was pressuring me to make a decision and say I liked it. So I left.”

Green says she asked why Lumpkin hadn’t asked for permission and described his reply as, “He said he wanted to surprise us. He said the show wasn’t working at all.”

Describing her conversation with Doug Wright and their collaborator Trey Anastasio subsequent to seeing the show, Green said, “We wanted to have our show as written. We’d spent years building and honing it and had very specific character-driven moments. People didn’t just say things. We carefully crafted the show. We were taken aback and dismayed by his [Lumpkin’s] lack of respect and regard for copyright laws and our material.”

In response to a series of e-mailed questions about the changes as reported by Green, Doug Wright wrote, “I was stunned, especially because the changes were so egregious.” But because he hadn’t seen them firsthand, I asked him what he hoped directors and artistic directors might learn from the liberties taken with Hardbody at the outset of the short (June 12 to 22) TUTS run.

“Most playwrights welcome the rigorous, insightful interpretive choices that good directors routinely bring to their work,” Wright responded. “But authorial choices are ours, and ours alone. When I write for the movies, I do it with the knowledge that my words may be rearranged, changed, or even stricken; the studio pays me a small fortune, and in exchange, they hold the copyright to my work. In the theater, I’m paid next to nothing for a play…but I get something even more philosophically and artistically valuable: ownership of my own writing. I live with the assurance that my scripts won’t be altered in any way without my blessing. That’s the one reward the theater can truly offer writers.  It should never be taken away.”

As it happens, TUTS is doing another Samuel French property later this summer, The Best Little Whorehouse in Texas. When I asked Lumpkin about a change that French’s Lazarus said had been proposed to the licensed script, he responded, “When they did the second national company [of Whorehouse], they put in the song “Lonely at the Top” which isn’t in the script now, but which was also added to the first national tour. It wasn’t a change. I talked to Pete Masterson about putting it back in the show and he said it was a great idea. I called Carol Hall and she said, ‘that’s a terrible idea’ and so we aren’t doing it.”

Hall’s account, via e-mail, differs significantly from Lumpkin’s matter-of-fact version.

The Best Little Whorehouse in Texas on Broadway

“‘Lonely At the Top’ was a song inserted into the show, written especially for a much beloved TV star (Larry Hovis) who was from Houston and was playing Melvin P. Thorpe in the Houston company. It was never in the Broadway production and was not meant for any other, only the one with Larry Hovis.

“In a telephone conversation a number of months ago, on another matter, Bruce Lumpkin asked how I would feel if the song were used in the up-coming TUTS production of the show. I told him I had never liked the song particularly, since it was never really necessary, and had only been put into the show because the authors had at the time wanted to accommodate Hovis, who had a large TV fan base. I told him I did not want the song to be in the show.

“Recently I heard a rumor that the song, in fact, was going to be in his production, so I called him to remind him he didn’t have permission to use it. Literally, in the first five minutes of the phone call, he became very upset, began to shout and claimed that I had told him he could “do whatever [he] wanted” with it. He was extremely arrogant and disrespectful and reasonable conversation was impossible, so much so that I eventually just hung up, something I’ve never done in any professional situation before.”

*   *   *

Having not seen the production of Hands on a Hardbody in Houston, let alone having watched it with script and score in hand, I can’t adjudicate independently how the show there on opening night differed from the written version. When I asked Lumpkin why he thought the authors were asserting that sweeping changes had been made, he simply said it hadn’t happened. But there’s no question in any account that the show was altered by Lumpkin without any permission given by the authors, or even sought by TUTS. Despite his repeated statements to me about how wonderful the show is and how well it’s playing with his audiences, to my mind, protestations that reordering a musical does not rise to the level of “changes” strike me as semantic disingenuousness.

Given my prior writing, I won’t restate my conviction about authors’ rights, which align very closely with those expressed by Wright. While I have been challenged by theatre artists from other countries over my fealty to the concept of authorial primacy in many types of theatre, while artists in this country have suggested that I am hiding behind unfairly restrictive copyright law, I have been trained from the beginning of my career to honor and respect authors’ words (and music), and I remain unswayed by other arguments.

I also do not believe it should be incumbent upon authors and their representatives to endlessly travel the country insuring that their works have not been altered without authorization; it is impractical if not impossible. In fairness to Lumpkin, he wasn’t exactly trying to slip his changes by with the hope that no one would notice; he wouldn’t have invited the authors if that was the case. But even if his goals were as well-meaning and admiring as he claims, he didn’t take any initiative to confer with the authors about his intent, and showed his revision to audiences and the press before the authors could even consider his take on their show. That the author of another show asserts Lumpkin’s aggressive stance on a requested and denied change starts to suggest a troubling pattern at TUTS. It will certainly bring the company under greater scrutiny, but it should also serve as notice to other theatres and other directors that authors don’t take changes to their work lying down and that their rights will be asserted.

I have to ask: why risk conflict, why face extra expense, when communication and collaboration might yield the desired result? And let’s face it: I was able to get in touch with Green and Wright within three hours time. A professional theatre company is certainly capable of doing the same.

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Addendum: June 20, 12:15 pm Subsequent to this post being published at approximately 10:30 am, the Dramatists Guild issued a statement (read it in its entirety on the Guild site) recounting accepted professional practices regarding scripts, saying that the statement would be sent directly to Bruce Lumpkin at TUTS. It reads, in part:

Fortunately, most professional theaters respect authorship and the standards of the theater industry (and their own contractual obligations) by either asking for permission to make changes upfront or staging the work as written.  They don’t want to run afoul of the licensing agents, nor do they want to bear the extra financial burden of having to stop performances and restage a production, or to endure the costs of litigation. Nor, we imagine, do they want to earn the enmity of playwrights everywhere, who have made ownership and control of their work the core value of their professional lives.

But there are some theaters that take a different tack in this regard. Those theaters engage in the practice of rewriting shows they present without authorial approval, in direct violation of the theater’s contractual obligations and industry standards. The Dramatists Guild of America, a national association representing the interests of over 7000 playwrights, composers and lyricists worldwide, vehemently and unequivocally objects to such illegal practices.

When we become aware of such a theater, we keep apprised of the theater’s ongoing activities and report on it to our membership and their representatives. We hope that writers, agents and publishers will consider this information when deciding whether or not to issue licenses for any works they represent.

Addendum: June 20, 3:15 pm The Dramatists Guild provided me with a copy of a letter they have sent to Theatre Under The Stars, detailing the unapproved changes made to Hands on a Hardbody. Following the listing of infractions, the letter, signed by Ralph Sevush, Executive Director, Business Affairs, continues:

When caught in blatant breach of this contract, it has been reported that you still have only partially restored the play for its few final performances, with the cast having little time to rehearse the changes, and are still including some unauthorized alterations.

And you have done all this begrudgingly and unapologetically, with a history of having done so before…

Addendum: June 20, 3:35 pm: Samuel French Inc. has now sent a cease and desist letter to Theatre Under The Stars. In the letter, Lori Thimsen, Director of Licensing Compliance at French, states:

As a result of your breach of contract, Samuel French hereby revokes Theatre Under The Stars’ license to produce Hands on a Hardbody. Accordingly, demand is made that you immediately cease and desist from the advertising, promotion, presentation and performance of any production of Hands on a Hardbody, cancel all remaining performances and confirm your compliance with this demand in writing to the undersigned no later than close of business today, Friday, June 20, 2014.

Four performances remain in the scheduled 10 performance run, one tonight, two on Saturday and one on Sunday.

Addendum: June 20, 8:15 pm: Theatre Under The Stars released a statement to BroadwayWorld.com which reads as follows:

TUTS has found itself in a last minute contractual dispute that prevents the continued performances of HANDS ON A HARDBODY. We regret this unexpected occurrence and we thank you for your support of TUTS and our Underground series.