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.”

There’s nothing quite like getting a cease and desist letter.

It may be commonplace if you’re an attorney and you’re receiving a cease and desist claim on behalf of clients, but for artists and arts administrators, at least, there’s a particular chill that accompanies opening a letter (or e-mail) that informs you that if you plan to present, or are currently presenting, a work that the sender feels is in violation of their rights and you don’t stop right away, you’re going to be subject to an assortment of penalties, typically not specified in the first salvo. Cease and desist letters are rather blunt instruments, and unless the artists or companies that receive them had an inkling that what they were doing might tick someone off, they can be quite disorienting, especially if the artists and/or companies don’t have an attorney on speed dial who can help them to determine the best course of action and the ability to pay said attorney to advise them and defend their interests.

According to a report by Rich Smith for Seattle’s The Stranger, Erin Pike, Courtney Meaker and Gay City Arts in Seattle, or some combination thereof, received a cease and desist late yesterday (Friday), demanding the immediate suspension of performances of Pike and Meaker’s thatswhatshesaid, which had given the first of four scheduled performances at Gay City Arts on Thursday evening. Thatswhatshesaid is a two-act theatre piece, performed solely by Pike, which is constructed out of dialogue and stage directions given to women in the 11 most produced plays in the country in 2014-15, as determined by American Theatre magazine. The works on that list include Vanya and Sonia and Masha and Spike by Christopher Durang and Sondheim and Lapine’s Into The Woods. Earlier, briefer versions of thatswhatshesaid have been performed in Seattle, Portland and Minneapolis.

The cease and desist correspondence came from Samuel French, the licensing house which represents some of the works on the American Theater list and are therefore excerpted in the production; Smith’s report doesn’t say whether Dramatists Play Service or Music Theatre International, which also represent some of the works utilized by Pike and Meaker, have taken any action against thatswhatshesaid. Smith’s report also seems to indicate that French’s letter concerns only the use of material from Bad Jews by Joshua Harmon, even though the newly devised work also contains material from Tribes by Nina Raine and The Whipping Man by Matthew Lopez, which are also represented by French.

The report in The Stranger quotes a segment of French’s letter and it seems to be fairly standard cease and desist boilerplate, with the appropriate parties’ names plugged in:

Any such program, publicity, production and/or presentation by you and/or permitted by you constitute and shall constitute the intentional infringement of the copyrights, trademarks and or other rights of our author and subject you and any and all other persons and/or firms involved with the publicity, presentation and/or production to the civil and criminal penalties specified under applicable law.

Should you or any of you permit these unlicensed programs and/or performances to take place and/or be performed, whether at a venue leased, owned or operated by you or otherwise, you and all involved personal shall be held fully liable and accountable as infringers and/or contributory infringers as specified under applicable law.

Accordingly, formal demand is hereby made that you immediately cease and desist from any and all such action by the end of business today, Friday, February 5, 2016, and you confirm that you will not conduct, publicize and/or present and/or permit to be conducted, publicized and/or presented any such program and/or performances.

Failure to do so will expose Gay City Arts, and all individuals acting in concert with these parties, to actions for willful copyright and trademark infringement and other legal claims.

Daunting, no? Enough to scare off lots of those accused of infringing, especially those with limited means, without a fight, right?

Now if Pike were simply standing on stage and sequentially reading every bit of dialogue and stage directions involving the female characters from each play, then what’s going on might be perceived as simple appropriation of copyrighted material, though even that’s not remotely a definitive determination. However, even with male roles excised, the sum total of that dialogue and stage directions could amount to seven or eight hours of stage time. Smith’s review of thatswhatshesaid for The Stranger, posted only seven hours before his report about the legal action, didn’t suggest he’d been at a marathon, but rather that Pike and Meaker had selectively chosen pieces of the various works and woven them into a quilt that yielded commentary on both the specific works, as well as the prevailing attitudes towards women being advanced in American theatre today.

So this seems the appropriate time to bring in the concept of “fair use.”

Your eyes may glaze over the moment someone suggests a primer in the fair use provision of U.S. copyright law, but it’s extremely pertinent here. Copyright law is designed to insure that original works remain the property of those who own them, for a defined period of time, so that they can derive revenue from the material without having it simply taken by others for their own benefit. It is why, simplistically, someone cannot simply retype a novel and publish it as their own work, or why plays can’t be performed without appropriate royalties due to the playwright.

But fair use keeps that ownership from being absolute in all cases. Because fair use allows for parody, Mad Magazine or Saturday Night Live or Key and Peele don’t need to pay the authors of creative works they might riff on. Because fair use acknowledges the value of education, teachers don’t need to pay royalties when their students simply read a play aloud in class. Fair use permits quotations from an original work in reviews and critical pieces about that work, and the same holds true for scholarly works. Fair use also considers whether new work that is in some way drawn from or inspired by an earlier work or works is sufficiently transformative of, and distinct from the original(s) as to constitute a sufficiently original work in and of itself.

But here’s the tricky part about fair use: while there are general guidelines as to what is protected under the fair use provisions, there is no absolute determinant that can be applied in all cases. That’s where lawyers and judges come in and that’s what helps to keep the field of intellectual property law perpetually active.

In Smith’s second report, he indicated that Pike had a plan as to how to proceed in the face of French’s cease and desist letter. That should prove fascinating. But it seems clear that if Pike and Meaker wish to mount future productions of thatswhatshesaid, or publish it, or have it licensed so that others may perform it, they’re going to have to challenge French’s assertions that their piece does violate the copyright protections afforded to Bad Jews, and presumably the other 10 works represented in the piece as well.

*   *   *

I haven’t read or seen thatswhatshesaid, but like many people to whom I’m connected on Facebook, I’d really like to. I wonder whether anyone from French has read or seen it, or if they’re just responding to The Stranger’s coverage of it. Smith’s review was zipping around on my timeline yesterday afternoon between theatre practitioners from all over, and I have to admit that the moment I read it, I thought, ‘Wow, this is going to be an interesting copyright test.’

Without having firsthand knowledge of the piece, or a legal degree, I can’t even hazard a guess as to whether thatswhatshesaid is, even just in my opinion (which counts for absolutely nothing legally), seemingly allowable under fair use, or if the situation is somewhat muddier or even a definitive violation. What I do know is that unless Pike and Meaker themselves were to agree that they were knowingly skirting copyright violation, I’d like to see them pursue their rights to the new work, at least so far as getting good legal counsel about their creation.

In this instance, the new work is using verbatim quotes from other copyrighted works, by authors I admire and several of whom I know, rather than just a general outline of a dramatic/comedic premise, but I can’t help but wonder whether this newly coalescing dispute is in some way akin to what befell David Adjmi and his play 3C. That work was a dark parody of the sitcom Three’s Company, which was proscribed from production or publication for three years until a judge determined that it was permitted under fair use.  That said, there may be a corollary here to the disputes over sampling in music, which in many cases have found that the original creators are due income from the subsequent work since their original material was taken directly, even if it was incorporated into something new.

Some might wonder how, given my advocacy for the rights of playwrights to control their work, I can also express support for what Pike and Meaker have reportedly done. My answer is that we’re dealing with artists on both sides of this issue, and if thatswhatshesaid is genuinely transformative, if it is a critical assessment of those original works achieved through theatrical means, if it parodies those original works by mashing up and using their own words against them, then perhaps it should be allowed to have its own life. I doubt, even without having seen it, that thatswhatshesaid will undermine the value of or confuse audiences about the original works excerpted and collaged within it. I appreciate French’s position in defending their clients, but I’d like to see Pike and Meaker have an equally strong defense too.

Update, 12:30 pm February 6, 2015: I’ve stumbled onto the Twitter account of Courtney Meaker and I’d like to selectively quote from her posts regarding how they proceeded with the second performance of that’s what she said. I share them in chronological order, but not every single post:

• The show went on.
• We redacted all the offending text per the cease and desist letter.
• There will be more thoughts and likely a long essay to be written by me, but I want to say that[…]
• […]as a playwright, I would be 100% on board with someone using my work in this way.
• We held a completely subjective lens up to the work of the top ten most produced plays.
• If my work was ever so lucky as to reach that spot, I would welcome someone dissecting it and taking it out of context.
• I would want to know what someone thinks I’m saying about women using my own words.
• I’m not perfect. I’m not a perfect feminist playwright. I’m me. And I would want to know.

This post will be updated as new information warrants.

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

Promotional image for thatswhatshesaid (photo by Tim Summers)

There’s nothing quite like getting a cease and desist letter.

It may be commonplace if you’re an attorney and you’re receiving a cease and desist claim on behalf of clients, but for artists and arts administrators, at least, there’s a particular chill that accompanies opening a letter (or e-mail) that informs you that if you plan to present, or are currently presenting, a work that the sender feels is in violation of their rights and you don’t stop right away, you’re going to be subject to an assortment of penalties, typically not specified in the first salvo. Cease and desist letters are rather blunt instruments, and unless the artists or companies that receive them had an inkling that what they were doing might tick someone off, they can be quite disorienting, especially if the artists and/or companies don’t have an attorney on speed dial who can help them to determine the best course of action and the ability to pay said attorney to advise them and defend their interests.

According to a report by Rich Smith for Seattle’s The Stranger, Erin Pike, Courtney Meaker and Gay City Arts in Seattle, or some combination thereof, received a cease and desist late yesterday (Friday), demanding the immediate suspension of performances of Pike and Meaker’s thatswhatshesaid, which had given the first of four scheduled performances at Gay City Arts on Thursday evening. Thatswhatshesaid is a two-act theatre piece, performed solely by Pike, which is constructed out of dialogue and stage directions given to women in the 11 most produced plays in the country in 2014-15, as determined by American Theatre magazine. The works on that list include Vanya and Sonia and Masha and Spike by Christopher Durang and Sondheim and Lapine’s Into The Woods. Earlier, briefer versions of thatswhatshesaid have been performed in Seattle, Portland and Minneapolis.

The cease and desist correspondence came from Samuel French, the licensing house which represents some of the works on the American Theater list and are therefore excerpted in the production; Smith’s report doesn’t say whether Dramatists Play Service or Music Theatre International, which also represent some of the works utilized by Pike and Meaker, have taken any action against thatswhatshesaid. Smith’s report also seems to indicate that French’s letter concerns only the use of material from Bad Jews by Joshua Harmon, even though the newly devised work also contains material from Tribes by Nina Raine and The Whipping Man by Matthew Lopez, which are is also represented by French.

The report in The Stranger quotes a segment of French’s letter and it seems to be fairly standard cease and desist boilerplate, with the appropriate parties’ names plugged in:

Any such program, publicity, production and/or presentation by you and/or permitted by you constitute and shall constitute the intentional infringement of the copyrights, trademarks and or other rights of our author and subject you and any and all other persons and/or firms involved with the publicity, presentation and/or production to the civil and criminal penalties specified under applicable law.

Should you or any of you permit these unlicensed programs and/or performances to take place and/or be performed, whether at a venue leased, owned or operated by you or otherwise, you and all involved personal shall be held fully liable and accountable as infringers and/or contributory infringers as specified under applicable law.

Accordingly, formal demand is hereby made that you immediately cease and desist from any and all such action by the end of business today, Friday, February 5, 2016, and you confirm that you will not conduct, publicize and/or present and/or permit to be conducted, publicized and/or presented any such program and/or performances.

Failure to do so will expose Gay City Arts, and all individuals acting in concert with these parties, to actions for willful copyright and trademark infringement and other legal claims.

Daunting, no? Enough to scare off lots of those accused of infringing, especially those with limited means, without a fight, right?

Now if Pike were simply standing on stage and sequentially reading every bit of dialogue and stage directions involving the female characters from each play, then what’s going on might be perceived as simple appropriation of copyrighted material, though even that’s not remotely a definitive determination. However, even with male roles excised, the sum total of that dialogue and stage directions could amount to seven or eight hours of stage time. Smith’s review of thatswhatshesaid for The Stranger, posted only seven hours before his report about the legal action, didn’t suggest he’d been at a marathon, but rather that Pike and Meaker had selectively chosen pieces of the various works and woven them into a quilt that yielded commentary on both the specific works, as well as the prevailing attitudes towards women being advanced in American theatre today.

So this seems the appropriate time to bring in the concept of “fair use.”

Your eyes may glaze over the moment someone suggests a primer in the fair use provision of U.S. copyright law, but it’s extremely pertinent here. Copyright law is designed to insure that original works remain the property of those who own them, for a defined period of time, so that they can derive revenue from the material without having it simply taken by others for their own benefit. It is why, simplistically, someone cannot simply retype a novel and publish it as their own work, or why plays can’t be performed without appropriate royalties due to the playwright.

But fair use keeps that ownership from being absolute in all cases. Because fair use allows for parody, Mad Magazine or Saturday Night Live or Key and Peele don’t need to pay the authors of creative works they might riff on. Because fair use acknowledges the value of education, teachers don’t need to pay royalties when their students simply read a play aloud in class. Fair use permits quotations from an original work in reviews and critical pieces about that work, and the same holds true for scholarly works. Fair use also considers whether new work that is in some way drawn from or inspired by an earlier work or works is sufficiently transformative of, and distinct from the original(s) as to constitute a sufficiently original work in and of itself.

But here’s the tricky part about fair use: while there are general guidelines as to what is protected under the fair use provisions, there is no absolute determinant that can be applied in all cases. That’s where lawyers and judges come in and that’s what helps to keep the field of intellectual property law perpetually active.

In Smith’s second report, he indicated that Pike had a plan as to how to proceed in the face of French’s cease and desist letter. That should prove fascinating. But it seems clear that if Pike and Meaker wish to mount future productions of thatswhatshesaid, or publish it, or have it licensed so that others may perform it, they’re going to have to challenge French’s assertions that their piece does violate the copyright protections afforded to Bad Jews, and presumably the other 10 works represented in the piece as well.

*   *   *

I haven’t read or seen thatswhatshesaid, but like many people to whom I’m connected on Facebook, I’d really like to. I wonder whether anyone from French has read or seen it, or if they’re just responding to The Stranger’s coverage of it. Smith’s review was zipping around on my timeline yesterday afternoon between theatre practitioners from all over, and I have to admit that the moment I read it, I thought, ‘Wow, this is going to be an interesting copyright test.’

Without having firsthand knowledge of the piece, or a legal degree, I can’t even hazard a guess as to whether thatswhatshesaid is, even just in my opinion (which counts for absolutely nothing legally), seemingly allowable under fair use, or if the situation is somewhat muddier or even a definitive violation. What I do know is that unless Pike and Meaker themselves were to agree that they were knowingly skirting copyright violation, I’d like to see them pursue their rights to the new work, at least so far as getting good legal counsel about their creation.

In this instance, the new work is using verbatim quotes from other copyrighted works, by authors I admire and several of whom I know, rather than just a general outline of a dramatic/comedic premise, but I can’t help but wonder whether this newly coalescing dispute is in some way akin to what befell David Adjmi and his play 3C. That work was a dark parody of the sitcom Three’s Company, which was proscribed from production or publication for three years until a judge determined that it was permitted under fair use.  That said, there may be a corollary here to the disputes over sampling in music, which in many cases have found that the original creators are due income from the subsequent work since their original material was taken directly, even if it was incorporated into something new.

Some might wonder how, given my advocacy for the rights of playwrights to control their work, I can also express support for what Pike and Meaker have reportedly done. My answer is that we’re dealing with artists on both sides of this issue, and if thatswhatshesaid is genuinely transformative, if it is a critical assessment of those original works achieved through theatrical means, if it parodies those original works by mashing up and using their own words against them, then perhaps it should be allowed to have its own life. I doubt, even without having seen it, that thatswhatshesaid will undermine the value of or confuse audiences about the original works excerpted and collaged within it. I appreciate French’s position in defending their clients, but I’d like to see Pike and Meaker have an equally strong defense too.

Update, 12:30 pm February 6, 2015: I’ve stumbled onto the Twitter account of Courtney Meaker and I’d like to selectively quote from her posts regarding how they proceeded with the second performance of thatswhatshesaid. I share them in chronological order, but not every single post:

• The show went on.
• We redacted all the offending text per the cease and desist letter.
• There will be more thoughts and likely a long essay to be written by me, but I want to say that[…]
• […]as a playwright, I would be 100% on board with someone using my work in this way.
• We held a completely subjective lens up to the work of the top ten most produced plays.
• If my work was ever so lucky as to reach that spot, I would welcome someone dissecting it and taking it out of context.
• I would want to know what someone thinks I’m saying about women using my own words.
• I’m not perfect. I’m not a perfect feminist playwright. I’m me. And I would want to know.

Update, Monday February 8, 12 noon: Rich Smith of The Stranger has continued to pursue the story of thatswhatshesaid and the cease and desist letter issued by Samuel French. He interviewed French’s executive director Bruce Lazarus about their action, the play and the possibility of the piece being permissible under fair use.

I told him that in my review I described the work as a parody and a collage that draws from several plays, and asked if he considered the play fair use.

“That’s your interpretation. Because you call it a parody doesn’t make it so,” he said. Then he added, “Fair use is a defense, and if proved it’s perfectly fine and within the law. But it’s a judge’s determination as to whether [That’swhatshesaid] constitutes fair use. Not having seen it, not having read it, I couldn’t tell you if it was fair use or not.”

When asked whether he’ll act on his claim to “go after” Gay City Arts knowing that That’swhatshesaid ran with lines from Bad Jews redacted, Lazarus said it was up to Harmon and all the other authors “whose rights are potentially being infringed” to decide whether they want to pursue legal action.

I posited this story as a David and Goliath situation. Here you have a big publisher coming down on a tiny theater presenting a self-produced play. Did he consider the fact that the artists might not have enough money to retain a lawyer? “For all I know, the author of this play has the wherewithal and the resources to hire an attorney to do this play,” he said, “And our author has the wherewithal to hire an agent to enforce his rights.”

Update, Monday February 8, 11 pm: The Stranger’s Rich Smith continues to report on thatswhatshesaid, with a post from this afternoon citing the receipt of a second cease and desist letter by the show’s creators. It came from Samuel French specifically on behalf of Matthew Lopez in connection with his play The Whipping Man, which was included on American Theatre’s list. However, as Smith notes, The Whipping Man contains no female characters [the text in the original post above has been struck out to reflect that fact]. The only material in thatswhatshesaid pertaining to the play is the sound of performer Erin Pike riffling through the 72 page script.

Update, Thursday February 11, 3:30 pm: In a new report in The Stranger, Dramatists Play Service has now issued a cease and desist letter to thatswhatshesaid on behalf of five of their authors: Other Desert Cities by Jon Robin Baitz, Vanya and Sonia and Masha and Spike by Christopher Durang, Venus in Fur by David Ives, Tribes by Nina Raine, and Outside Mullingar by John Patrick Shanley.

This post will be updated as new information warrants.

Howard Sherman is director of 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 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.

*   *   *

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.

As the cab pulled into the driveway, I got a glimpse of a sign propped against a telephone pole, starkly gray, black and white. On it were the typical details of any theatre production: the company, the dates and times, the title of the show, the website. Depicted was a single leafless tree, suggesting perhaps Waiting For Godot, or Spoon River Anthology, or maybe even a spooky Halloween attraction. I knew the show I was headed to was going to be a heavy one, so the foreboding promised by the sign wasn’t inappropriate; it followed a dictum I believe in strongly, which is truth in advertising. I just didn’t expect this for a high school play.

The play in question, about which I knew next to nothing beyond a website marketing synopsis, was Infinite Black Suitcase by EM Lewis, a playwright new to me. It was being done as a “major black box production” at Staples High School in Westport CT, a school whose theatre program I have heard about for literally decades, knowing kids and parents of kids who had at one time or another been connected with the school. While challenges to other high school plays have taken me to other towns in Connecticut – Waterbury, Woodbridge, Trumbull, Milford – I happened to meet the head of the Staples drama program when we served together for one year (two meetings) on an advisory committee for Samuel French, the theatrical licensing company. So I’d been keeping an eye on what he was up to, even as more pressing issues in high school theatre took me elsewhere.

Had I visited the Staples Players website and found they were doing Twelve Angry Men/Women/People/Jurors or To Kill A Mockingbird, I might not have been so quick to head to Westport along with the commuter crowd on their way home on Thursday night. But the online description of the play, not out of character with the school’s past repertoire, about various residents of an Oregon town dealing both with impending death and the aftermath of prior losses seemed so incongruous in a high school setting – even a high school with a 200 seat black box in addition to a spacious main auditorium – that I had to go up and see for myself.

Jacob Leaf, Claire Smith & Jack Baylis in Infinite Black Suitcase at Staples High (photo by Kerry Long)

Before going, I looked up the playwright, wondering whether the author wrote specifically for high school productions, and discovered that she has a number of professionally produced works to her credit (the play premiered in Los Angeles in 2005) and that Infinite Black Suitcase was in fact receiving its high school premiere. This prompted me to ask Roth, who was directing the play with his wife Kerry Long, how he came to the play. He responded that the folks at French had put him on to it, as he had been looking for a relatively large cast contemporary play.

I attended the first of four performances, and until 10 minutes or so before curtain time, I wondered if anyone would be there, so empty was the parking lot and theatre entrance – as did some students who seemed connected with the show, milling in the hallway near the theatre. An audience did arrive, a bit tardy, filling the small theatre to perhaps a bit more than half of capacity. Once inside, the trappings of the school fell away and the environment resembled many an Off-Broadway house. Indeed, the fact that the theatre wasn’t completely full showed that challenging work is always a hard sell, regardless of whether it’s professional or academic. Of course, it was a school night.

Jack Bowman & Joe Badion in Infinite Black Suitcase at Staples High (photo: Kerry Long)

Obviously my intent is not to review the play or production, but I can say that it met one criteria I declared important when I first started writing about high school theatre, namely that the work challenged the students performing in it. Playing (mostly) grief stricken adults mourning or anticipating death in a series of short, intertwined scenes, the students were “punching above their weight,” rather than merely romping through an entertainment that catered to their natural, youthful exuberance. The play also fulfilled what Roth had told me led to its selection, in that the 16 actors were a genuine ensemble, each afforded at least one “moment” in the 80 minutes to showcase their abilities.

Contemporary drama is hardly unknown in high school theatre, although it was outside of my own experience years ago. A quick glance at the Staples repertoire over many years shows that, as did the most compelling portion of Michael Sokolove’s book Drama High, in which high school students performed Roberto Aguirre-Sacasa’s Good Boys and True. That said, in the Educational Theatre Association’s survey of the most produced high school plays, only one contemporary play makes the top ten: John Cariani’s Almost Maine (at number one). Surely Cariani’s play stands atop the list because while originally produced with four actors and lots of doubling, it easily affords the opportunity for a larger cast to play its many roles without repetition, expanding to meet the interest and needs of high school drama, where musicals with casts of 50 are far from rare. Cariani’s new play, Love/Sick, might well appear on the list soon.

The rest of the EdTA list is decidedly older plays, from public domain works like A Midsummer Night’s Dream and The Importance of Being Earnest to American classics like Our Town, Harvey and You Can’t Take It With You. While I have affection for all of the plays which are most frequently seen, with a particular and deep admiration for Our Town, a play often mistaken for pablum when it is really a profound meditation on death, I do worry, as with musicals, that even as the canon of theatre literature grows, the majority of our high schools produce the same standards year after year, the experience at Staples, the popularity of The Laramie Project and Sokolove’s story of Levittown PA notwithstanding.

This may well be a byproduct of the downsizing of the American play. Ask any playwright and they’ll tell you how they have to craft their works for casts of four to six, preferably with a single set, in order to get them done; look at the most produced plays in America and you’ll find those small casts: Venus in Fur (two), Red (two), God of Carnage (four), Vanya and Sonia and Masha and Spike (six), and so on. So when high schools seek to involve as many students as possible in theatre outside of musicals, they’re forced back to the days when larger casts were de rigeur. On the one hand, we can say that this only reflects modern trends in professional theatre, and students should work with the same expectations, but in practice small cast plays either deny students the chance to learn about dramatic ensembles or the chance to tackle new work.

I have to hand it to Roth for putting his students up to the challenge of Infinite Black Suitcase, although I suspect it’s unlikely to be come a standard work in the high school repertory. But I’m also pleased to know that it’s not the only option out there. Student-written plays, although typically one-acts, afford high schoolers the opportunity to take on work by and about their peers, although that’s not without its challenges, as cases in Everett MA and Wilton CT have shown. Lend Me A Tenor author Ken Ludwig premiered one of his plays, a holiday show, at a high school near his home. There is also a thriving subset of writing targeting the academic market, though it is wholly unfamiliar to me.

One model that I wish were better-known or, better still, duplicated in the U.S., is the one forged by NT Connections in England, in which the National Theatre commissions new works by major contemporary playwrights specifically for secondary schools to perform. This may give the writers a chance to work on a larger canvas than they can with works seeking professional production, while letting the students take on modern plays crafted specifically for them that aren’t necessarily simplified for them or condescending to them, by writers they well might be reading about in the culture pages. Though I admire the concept, I regret knowing very few of these plays; I can, however, heartily recommend Mark Ravenhill’s Moliere riff Totally Over You.

I must come back to one last aspect of the experience of seeing Infinite Black Suitcase at Staples High. In my experience as an audience member seeing high school theatre, plays or musicals, I am always in the position of watching a show I’ve seen before, in many cases more than once, its words and music well known to me. With Suitcase, my experience was perhaps closer to the majority of my regular theatergoing precisely because I didn’t know it. I wasn’t spending the evening just seeing how well the kids managed to perform a familiar tale, I was actively engaged in watching the play itself, since I had no idea what would happen next and, for me, the Staples cast – of students I’ve never met, and so have no reason to respond to with indulgence or affection – is forever linked with the play, as with any show when one sees it for the first time. For Infinite Black Suitcase, they are my original cast.

P.S. I continue to learn a great deal about high school theatre as I see more and write more and as readers respond to what I write. If you have other examples of high school theatre giving students the opportunity to take on challenging contemporary or even new work, I hope you’ll share it in the comments section below. Teach me, and share so that other students and teachers can learn as well.