This summer, when an attorney for actor James Franco sent New York’s People’s Improv Theatre a cease and desist letter regarding the venue’s planned presentation of the play James Franco and Me, PIT’s response was to cancel the booking. At the time, Kevin Broccoli, author and performer of JF and Me had no legal representation, and so the stories that emerged were that Franco had successfully shut down the production, as highlighted in numerous media outlets, including  The New York Times and Rolling Stone.

Among the organizations that stepped in to assist Broccoli were the Arts Integrity Initiative and the Dramatists Legal Defense Fund, and in August, DLDF secured the pro bono services of the law firm Davis Wright Tremaine to represent Broccoli in an effort to insure his play could be seen. Yesterday, DWT responded in writing to Thomas Collier, the attorney at Sloane, Offer, Weber and Stern, who had sent the original cease and desist, asserting that it was without foundation and that Broccoli may present the play and companies may produce it under the protections offered by the First Amendment.

In a statement to Arts Integrity, Broccoli said, “I’m truly amazed at the amount of support my play has received since July when this story broke.  I’m very grateful to Davis Wright Tremaine, especially Nicolas Jampol and Kathleen Cullinan, who have been working tirelessly, and to Dramatists Legal Defense, who helped connect me with them.  Right now it appears that there’s an opportunity to do the play at several theaters across the county, including New York, and that’s really been my goal from the beginning.”

Jampol’s letter to Collier asks for a response within two weeks. The full text, with all legal citations and footnotes, appears below. It makes for fascinating reading and important information for playwrights.

*     *     *

We represent playwright Kevin Broccoli in connection with your client James Franco’s attempt to pressure theatrical venues into cancelling performances of Mr. Broccoli’s play James Franco and Me (the “Play”). In particular, we write in response to your July 7, 2017 cease-and- desist letter to the People’s Improv Theater, which resulted in the cancellation of several performances of the Play.

For the reasons explained below, we are confident that your client does not have any valid claim in connection with the Play. Contrary to the assertions in your letter, the First Amendment provides playwrights and other creators of expressive works – including both your client and Mr. Broccoli – with robust protection against the claims you threatened. Put simply, Mr. Broccoli does not need Mr. Franco’s permission to perform the Play, and will perform the Play as he desires. Mr. Broccoli also reserves the right to take legal action if your client continues to interfere with his contractual relationships with theatrical venues.

The Play

In the Play, a character named Kevin – which is based upon, and typically played by, Mr. Broccoli – sits in a hospital waiting room while his father is dying. The “James Franco” character stays with Kevin during the agony and tedium of awaiting a loved one’s fate in a lonely and impersonal waiting room. Their wide-ranging discussion tackles numerous topics like art, passion, sexual identity, and death, while engaging in a critical exploration of Mr. Franco’s films and television projects, including 127 Hours, Spring Breakers, Pineapple Express, Rise of the Planet of the Apes, General Hospital, Spiderman, Oz the Great and Powerful, and This Is the End, among others.

In addition to exploring Mr. Franco’s works, the Play parodies the public perception of Mr. Franco as a passionate, eccentric actor and artist who fully invests himself in his work. In one scene, for example, the “James Franco” character describes how he emotionally cut off his arm in preparation for his role as Aron Ralston in 127 Hours. In other scenes, the character vehemently disclaims any interest in money, highlighting Mr. Franco’s perception as someone who is not simply interested in pursuing projects for maximum financial gain – he believes in the art, and strives for something more than wealth creation.

Apart from examining Mr. Franco’s career and public perception, the Play also uses the “James Franco” character as a vehicle to explore Mr. Broccoli’s own feelings about life, death, his career, and his relationship with his father against the looming sense of mortality in the hospital waiting room. As one review explained, “this play becomes a kind of meta commentary on life, celebrity, loss, failure and friendship.”1

While not relevant to whether Mr. Franco could establish a valid claim against Mr. Broccoli in connection with the Play, the fact is that Mr. Broccoli is a long-time admirer of Mr. Franco and his work, and the portrayal is overwhelmingly positive. The Play specifically refers to Mr. Franco as “one of the most spontaneous and unique performers of his generation,” and explains that if Mr. Franco “stands for anything, it’s artistic simplicity.”

Mr. Franco Has No Viable Right-of-Publicity Claim

The First Amendment protects Mr. Broccoli from any right-of-publicity or misappropriation claim in connection with the “James Franco” character in the Play. Under well-established law, celebrities simply do not enjoy absolute control over the use of their name and likeness, particularly in an expressive context, such as a play.2 Mr. Franco has benefited from this principle in numerous of his works with characters that were based on, or inspired by, real people and events.

In Sarver v. Chartier, 813 F.3d 891, 896 (9th Cir. 2016), for example, an Army sergeant brought right-of-publicity claims against the producers of the film The Hurt Locker, which featured a fictional character that the plaintiff contended was based on him. In affirming the dismissal of the claims, the court explained that “The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.” Id. at 905. Almost four decades earlier, in Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 862 (1979), Rudolph Valentino’s nephew sued over a television movie titled Legend of Valentino: A Romantic Fiction, a fictionalized version of his uncle’s life. In rejecting the claim, Chief Justice Bird wrote for the majority of the court in a now-widely-cited concurrence3 explaining that the First Amendment protected the film against plaintiff’s cause of action for misappropriation of Valentino’s name and likeness:

Contemporary events, symbols and people are regularly used in fictional works. Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality. The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment. Surely, the range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction. Id. at 869.4

Without these critical protections, content creators would be required to obtain approval from any real person – or such person’s estate – depicted in a television series, motion picture, or theatrical production, which would allow them to veto controversial or unflattering portrayals. This would place a significant restriction on the marketplace of ideas and would have prevented the production of acclaimed films such as Spotlight, The Social Network, and Selma. As mentioned above, Mr. Franco himself is no stranger to depicting real individuals, including in Milk, Lovelace, and Spring Breakers, among many others.

Mr. Broccoli uses the “James Franco” character to comment on Mr. Franco’s career and public perception, while using it as a vehicle to explore Mr. Broccoli’s feelings about his own life and work, among other topics. In other words, in addition to dealing with a matter in the public interest – Mr. Franco and his career – the Play uses the character to enable Mr. Broccoli to “more persuasively, or more accurately, express [himself].” Guglielmi, 24 Cal. 3d at 869. See also Comedy III Productions, 25 Cal. 4th at 397 (explaining that “because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression”). As a result, the Play enjoys broad protection under the First Amendment and against any potential right-of-publicity claim that Mr. Franco might assert.5

Mr. Franco Has No Viable Trademark-Infringement Claim

The Lanham Act and state trademark law do not exist to imbue trademark owners and celebrities with the unrestricted power to prevent the unauthorized use of their marks or names in expressive works. Instead, trademark law is “is intended to protect the ability of consumers to distinguish among competing producers, not to prevent all unauthorized uses” of a mark. Utah Lighthouse Ministry v. Found. for Apologetic Info., 527 F.3d 1045, 1052 (10th Cir. 2008). Based on the Play, no reasonable viewer would be confused into thinking that Mr. Franco had sponsored or approved the Play – in fact, the Play makes clear that the “James Franco” character is a fictionalized version of Mr. Franco, and there is absolutely nothing in the Play that suggests or implies that Mr. Franco himself had any involvement in the Play. The implausibility of consumer confusion would bar any trademark-infringement claim here.

Even if Mr. Franco could somehow establish the elements of a Lanham Act claim, it would still fail because the Play is an expressive work entitled to full First Amendment protection. When a Lanham Act claim targets the unauthorized use of a mark in an expressive work, the traditional likelihood-of-confusion test does not apply because it “fails to account for the full weight of the public’s interest in free expression.” Mattel v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002). Instead, such claims must pass the Rogers test, which bars any Lanham Act claim arising from an expressive work unless the use of the mark “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). The Rogers test is highly protective of expression, and has since become the constitutional threshold for Lanham Act claims arising from the unauthorized use of marks within expressive works.6

The first prong of the Rogers test is satisfied if the alleged mark as any artistic relevance to the underlying work. See Rogers, 875 F.2d at 999. Courts have interpreted this requirement to mean that “the level of artistic relevance of the trademark or other identifying material to the work merely must be above zero.” Brown v. Electronic Arts, Inc., 724 F.3d 1235, 1243 (9th Cir. 2013) (brackets omitted). The second prong of the Rogers test is satisfied unless the defendant’s work makes an “overt claim” or “explicit indication” that the plaintiff endorsed or was directly involved with the work. Rogers, 875 F.2d at 1001 (“The title ‘Ginger and Fred’ contains no explicit indication that Rogers endorsed the film or had a role in producing it”). This requirement of an “overt claim” applies even where consumers mistakenly believe there is some connection between the mark owner and the expressive work. See, e.g., ETW, 332 F.3d at 937 n.19 (finding that a painting of Tiger Woods did not expressly mislead consumers despite survey evidence that sixty-two percent of respondents believed the golfer had “an affiliation or connection” with the painting “or that he has given his approval or has sponsored it”).7

Because the Play is an expressive work entitled to full First Amendment protection, the Rogers test would apply to any trademark claim Mr. Franco might bring. It is beyond dispute that Mr. Franco’s name is artistically relevant to a play that examines his career and public persona. Moreover, the Play does not make any explicit claim that Mr. Franco endorsed or was affiliated with the Play. To the contrary, Mr. Broccoli made clear in press interviews that the “James Franco” role would be played by different actors – not Mr. Franco8 – and never made any statement or suggestion that Mr. Franco sponsored or was otherwise involved with the Play. Accordingly, because the Rogers test is easily satisfied, the First Amendment bars any trademark-infringement claim by Mr. Franco.9

Mr. Franco Must Cease Interfering with the Exhibition of the Play

We request that Mr. Franco stop interfering with Mr. Broccoli’s right to exhibit the Play, and Mr. Broccoli expressly reserves his right to pursue a claim for such interference. Despite the fact that he can rightfully exhibit the Play without Mr. Franco’s permission, Mr. Broccoli is still an admirer of Mr. Franco, and is willing to engage in dialogue with him or his representatives regarding any specific objections he has to the Play or whether any particular disclaimer would alleviate Mr. Franco’s concerns. Like Mr. Franco, Mr. Broccoli is dedicated to his artistic craft, and despite his legal right to exhibit the Play without Mr. Franco’s permission, he would prefer to focus his time and energy on the Play, and not this dispute.

Footnotes

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

2 As one court explained in affirming the dismissal of a right-of-publicity claim arising from a film, “[t]he industry custom of obtaining ‘clearance’ establishes nothing, other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.” Polydoros v. Twentieth Century Fox, 67 Cal. App. 4th 318, 326 (1997).

3 See Comedy III Productions v. Gary Saderup, 25 Cal. 4th 387, 396 n.7 (2001) (recognizing that Chief Justice Bird’s concurrence “commanded the support of the majority of the court”).

4 Chief Justice Bird also explained that it would be “illogical” if the First Amendment allowed the defendants to exhibit the film, but prohibit them from using Valentino’s name in advertising for the film. Id. at 873. See also Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 325 (1997) (holding that the use of the plaintiff’s name and likeness in a film was not an actionable violation of the right of publicity, and thus “the use of his identity in advertisements for the film is similarly not actionable”).

5 The transformative-use defense would provide another layer of constitutional protection against a right-of-publicity claim because Mr. Franco’s likeness is “one of the ‘raw materials’ from which an original work is synthesized,” and his “likeness is so transformed that it has become primarily the defendant’s own expression.” See Winter v. DC Comics, 30 Cal. 4th 881, 888 (2003).

6 See, e.g., Cliffs Notes v. Bantam Doubleday Dell, 886 F.2d 490, 495 (2d Cir. 1989) (holding that “the Rogers balancing approach is generally applicable to Lanham Act claims against works of artistic expression”); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 n.11 (6th Cir. 2003) (explaining that the Rogers test is “generally applicable to all cases involving literary or artistic works where the defendant has articulated a colorable claim that the use of a celebrity’s identity is protected by the First Amendment”); E.S.S. Entm’t 2000 v. Rock Star Videos, 547 F.3d 1095, 1099 (9th Cir. 2008) (“Although [the Rogers test] traditionally applies to uses of a trademark in the title of an artistic work, there is no principled reason why it ought not also apply to the use of a trademark in the body of the work.”); Univ. of Alabama v. New Life Art, 683 F.3d 1266, 1278 (11th Circ. 2012) (expressing “no hesitation in joining our sister courts by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark,” and applying Rogers to “paintings, prints, and calendars”).

7 Similarly, the Rogers court found that the defendants did not expressly mislead despite evidence that “some members of the public would draw the incorrect inference that Rogers had some involvement with the film.” 875 F.2d at 1001. The court explained that any “risk of misunderstanding, not engendered by any overt claim in the title, is so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.” Id.

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

9 Any unfair-competition claim would fail for the same reasons as a right-of-publicity or trademark-infringement claim. See, e.g., Kirby v. Sega of America, 144 Cal. App. 4th 47, 61-62 (2006) (where First Amendment barred plaintiff’s misappropriation and Lanham Act claims, it also barred her unfair-competition claim).

Madison Ferris, Sally Field, and Joe Mantello in The Glass Menagerie (Photo by Julieta Cervantes)

Sam Gold’s production of Tennessee Williams’ The Glass Menagerie produced a wide range of critical responses when it opened last week, and that surely wasn’t unexpected. Based upon Gold’s 2015 staging for Toneelgroep Amsterdam, it is a radically deconstructed version of the play, different in look and feel than most (presumably) of those that came before it.

Where Gold’s staging likely differs from the vast majority of its predecessors is in the director’s decision to cast Madison Ferris, an actor with a mobility disability (in her case deriving from muscular dystrophy) in the role of Laura. Williams’ text certainly made clear that Laura had a mobility disability, but it has been traditionally played with a limp, or perhaps a leg brace.

Ferris uses a wheelchair, on stage and in daily life. There is no question that the physicality of Laura in this version is different than what Williams’ described, but so is much of the production. The casting of Ferris, like any other element of the production, is certainly fair game for critical consideration. But some of the language that emerged in critics’ efforts to talk about Ferris’ performance is striking.

We read that Laura, or the actor who plays her, is “physically challenged”. She has a “physical handicap”. She is “wheelchair-bound”. She “suffers” from muscular dystrophy. That these terms are largely eschewed by the disability community, which finds such terminology patronizing, insulting, archaic, misinformed or some combination of all four, seems to have escaped many writers (these examples are all from different reviews, from major outlets) and their editors.

Another review, after explaining how Ferris negotiates a set of steps with some help from other actors, describes the act as “an agonizing process, painful to watch, and a forceful symbol of the physical burden Amanda has to shoulder”. Still another wonders, “Why is Ferris’ disease called upon to generate a spectacle?” One critic says that the casting “blurs the boundary between character and actress.”

Performers with visible disabilities are rarely seen in the commercial world of Broadway, with notable exceptions being the Deaf West Theatre productions of Big River (2003) and Spring Awakening (2015), the latter casting Broadway’s first wheelchair-using actor. So the unfamiliarity that arts journalists now display regarding how they write, or speak, about disability is perhaps understandable, but that doesn’t excuse it.

To declare someone with a disability a burden on their parents, no matter the circumstance, is judgmental ableism. Does a disability that blurs the line between actor and role blur it in some undefined way that all other acting performances manage to escape? How can someone be “wheelchair-bound” in a production where the actor and character regularly move in and out of the chair?

While most, but not all, of the quotes above are from negative notices, they demonstrate the degree to which the writers are perhaps uninformed about or uncomfortable with disability. It reveals much more about them than about the production, displaying their lack of personal experience and perhaps even their fear of disability and people with disabilities.

In a week when British audiences have learned that Mat Fraser will play Richard III, and a call has gone out in the US theatre community seeking an actress of color with a mobility disability for yet another Glass Menagerie, artists with disabilities and those who advocate for them (and until recently, I was employed as the latter) have reason to be encouraged. But arts journalists owe it to the artists they cover, and the audiences for whom they report, to get up to speed with language surrounding disability. They can like what they see or not, but perhaps they would do well to avoid giving (often significant) offense where, I would hope, none is intended.

This post originally appeared in The Stage newspaper.

Andrew Keenan-Bolger and Carolyn McCormick in A.R. Gurney’s Family Furniture at the Flea Theater. (Photo by Joan Marcus)

Playwright AR Gurney would have found great irony in the fact that his life was commemorated at Broadway’s Music Box Theatre this week because, despite his success, Broadway was never much of a home to him.

Only four of his nearly 40 plays ever made it to the Great White Way, and the longest run was for his 1987 work Sweet Sue, which eked out six months including previews. Gurney attributed that entirely to the presence of Mary Tyler Moore and Lynn Redgrave in the four-strong cast.

The playwright, known to one and all as Pete for reason long lost to his family lore, had a career that flourished Off-Broadway and in regional theatres. When he died in June at the age of 86, there were the appropriate obituaries for such a successful and prolific man of the theatre. But there were few critical surveys of his career, or think pieces about what his plays had meant, like those that followed the deaths of Edward Albee and Sam Shepard.

Gurney’s work was never groundbreaking, but it resonated strongly with audiences of many ages, even though it was steeped in the lore of the white Anglo-Saxon Protestants who had dominated America for many years.

From the very start, Gurney was quietly, subtly rebelling against his genteel upbringing, simultaneously taking pleasure in the traditions that had surrounded him growing up while poking fun at them theatrically.

At Tuesday’s memorial, it was noted that his father took genuine displeasure at Gurney’s chosen career and the sentiments expressed in his plays. Despite that, until his father’s death, he was always billed as A.R. Gurney Jr., out of respect.

As it happens, I first had the opportunity to meet and work with Pete in 1984, when I was only two weeks out of college. He had only truly broken through in his career two years earlier, at the age of 52, with his comedy The Dining Room.

While he was fond of noting the critical reception for Scenes from American Life in 1971, it was The Dining Room that made his name, and allowed him to stop teaching full-time – that alternate profession had sustained him for two decades. He didn’t fit the model of an emerging playwright in appearance, demeanour or choice of dramatic subjects.

I didn’t quite realise this at the time, and I treated him as I treated every artist I met in my earliest years: with something approaching awe. But Pete’s warmth and genuine interest in every person he met led to a professional friendship that lasted the rest of his life, even though he was only three years younger than my dad. When I took a new job in 2003, he called me to say he was proud of me – the most paternal gesture I can imagine, and one that I will never forget.

Being a younger, Jewish man, Pete’s works held a certain anthropological fascination for me. As I watched his plays over the years, often with audiences that seemed to have stepped out of his plays – as did much of the crowd at his memorial – it struck me that they were coming to see their way of life satirised, criticised and – perhaps against their will – eulogised.

Pete’s particular gift, lost to the casual observer, was that he managed to do this without giving offence. I liked to say that his audiences recognised his characters as the family down the street, but never as themselves.

At the memorial, actor Holland Taylor, who had worked with Pete often, said: “He may have hung his heritage out to dry, but he was always dressed in it the next day.”

Pete’s greatest success was certainly his play Love Letters, which was translated into 24 languages and produced in 40 countries. In its simplicity, it was perhaps his most structurally daring play: two actors, seated at a table, reading from their scripts, never looking at one another until the penultimate moment, requiring no rehearsal, consisting entirely of a life-long correspondence of unrequited love.

What few recall is that Love Letters followed his uncharacteristic work The Snow Ball. While his plays typically called for a single set and perhaps six actors at most, The Snow Ball took place in multiple locations, called for a cast of about 16, and if memory serves, about 80 costumes.

Yes, I worked on his most technically complex play, and one of his least seen. At the memorial, director Jack O’Brien railed against a now-deceased Boston critic who had derailed its path to New York.

I will miss Pete always, and with that I will miss the Off-Broadway era that allowed him such great success. While his regional productions were legion, and presumably will remain so, we no longer see the days when plays would transfer from Playwrights Horizons, the late Circle Repertory or other not-for-profit venues to sustained commercial runs Off-Broadway, as Pete’s did.

Now plays either move on to Broadway or they finish their limited runs and are lost to New York, more often than not setting the stage for larger audiences and bigger royalties outside of the city than in it.

Pete didn’t mourn the passing of the world in which he was raised; he told me it was culturally bankrupt when I interviewed him in 2015. But with his death I mourn the passing of an era when plays didn’t have to move to Broadway in order to have a chance of survival in New York, and could find ongoing homes in smaller theatres.

Without that, I fear we lose the opportunity to foster emerging playwrights most fully, whether they’re 20-year-old tyros or, like Pete, 50-year-old overnight successes.

It’s a bit hard to follow the thinking of Bill Hanney, the owner and producer at North Shore Music Theatre in Beverly, Massachusetts. Initially, it was hard because Hanney was silent, not responding to complaints – initiated by Lauren Villegas of Project Am I Right? – over the lack of Latinx casting in the company’s production Evita, which has no Latinx performers in principal roles and seemingly few in the entire cast.

The theatre’s first response came on the personal Facebook page of Kevin P. Hill, producing artistic director at North Shore, who wrote, in part:

North Shore Music Theatre understands that there has been concern expressed over the casting of our production of Evita. As the recipient of the Rosetta LeNoire Award for non-traditional casting, NSMT has always encouraged performers of all ethnicities to audition for our productions. The cast process for Evita was no different. We made extensive efforts to see as many diverse performers as possible and contracts were offered to many performers of diverse ethnicities, including Latino. Some contract offers were accepted, and others were not. Our talented cast and crew of Evita include professionals from diverse backgrounds – a reflection of NSMT’s vision.

In attempting a defense, Hill brandished an award from Actors Equity with which the theatre was honored in 2003 – under entirely different management. In fact, since NSMT had gone bankrupt in 2009, and Hanney’s ownership began only in 2010, Hill’s citing of an award received by a prior regime, one which carries the outdated terminology of “non-traditional” casting, was a weak public relations move.

Subsequently, in a Boston Globe feature on Constantine Maroulis, who was cast in the role of Che, we got some of the American Idol runner-up’s thoughts on race and ethnicity in casting. Maroulis declared that as part of a Greek American family, he had experienced racial bias, saying, “Even in the late ’70s, moving to an incredibly white suburb and affluent area, we were treated like terrorists at first . . . so I’m not exactly a loaf of Wonder Bread, either.” He went on to declare his thoughts on race in casting, saying, “I don’t think it’s an issue; I think people are trying to make it an issue.”

People were trying to make it an issue because of the long-standing exclusionary patterns when it comes to opportunities for people of color in theatre, film and television. People were making it an issue because while the original Evita in New York, 38 years ago, cast an Italian and a Jew in the roles of Latin Argentinians, the most recent revival featured Latinx actors in the two principal roles, demonstrating that the world has moved forward. North Shore’s casting of the production demonstrates that there’s still a way to go.

In an article in the Globe on September 11, Hanney spoke out for the first time regarding the casting issue. He told reporter Don Aucoin:

“I do colorblind casting,’’ said Hanney. “You have to be able to sing, dance, and act. That’s the criteria.’’

“If a Latino person came in and they were the best, they’d be in my show,’’ he asserted. “We found the right people. Our focus was not to find a Latino. It was to find the right Eva, Che, Peron, etc.”

Of course if the casting was, to use another phrase no longer in favor, truly color blind, then why didn’t Hanney manage to cast any actors of color in the few leading roles Evita offers. Shouldn’t the law of averages have managed to yield even one?  Is it possible that not a single talented person who is Black, Asian, Middle Eastern, Native or Latinx could possibly measure up to the white actors Hanney favored?

But as he followed up in conversation with the Boston public radio station WBUR, Hanney started to trip over his own reasoning:

“I don’t even — I never even thought about that — that type of casting.”

Unless a show calls for a specific ethnicity as in “Miss Saigon” or “Dreamgirls,” Hanney says, he doesn’t consider ethnicity at all.

“If it’s a dance show, which ‘Evita’ is, they have to dance it, they have to sing it, they act it. Those are the three most important things,” he says.

Well, despite its earliest casting, Evita does call for specific ethnicity. While Argentina’s current population is heavily influenced by Europeans who immigrated there a century ago, mixing with the indigenous population, Argentina is a Latinx country. So why wasn’t that taken into consideration? Some color conscious casting seemed called for – by the setting and text, even if it is a show created by two Englishmen who knew little of the actual locale of their show.

Hanney told Playbill that ethnicity in Evita is, as far as he is concerned, irrelevant. “There is no part of the story that speaks to events happening to her or not happening to her because of her race, nor are her actions motivated by her race.”

*    *    *

Taking a deeper dive into the North Shore website, it’s possible to take a closer look at their pattern of casting, albeit on a limited basis. The site shows cast bios and headshots for the current and immediate past season – Evita, Mary Poppins, West Side Story, Spamalot, Funny Girl, A Christmas Carol, Beauty and the Beast, Young Frankenstein and The Music Man (bios and headshots aren’t available for tenth show, Singin’ in the Rain).

With the caveat that race and ethnicity aren’t possible to fully assess based solely on names, professional bios and images, a review of NSMT shows reveals that of 320 performers, including children, it appears that just 21 roles were played by people of color. That’s a total of 6.5% of all actors hired this year and last, a number that would drop by more than half were it not for West Side Story and Evita.

Compare this with the demographics of the area in which North Shore produces. According to data from the Boston Redevelopment Authority, the city of Boston itself has a population that is 47% White, 22% Black, 18% Latinx, 9% Asian, 2% Mixed Race and 2% Other. Expand out to the greater Boston metro area, as defined by The Boston Foundation, and the population is 77% White, 10.1% Latinx, 8.3% Black and 7.2% Asian. Zoom in on Beverly itself, the community where NSMT is located – per City-Data.com, it is 90% White, 3.7% Latinx, 2% Asian, 1.3% Black, 1.3% Mixed Race, and less than 1% Other.

So no matter what yardstick one uses, North Shore Music Theatre only manages to achieve only slightly better than half of the racial mix in its overwhelmingly white town, let alone represent the greater Boston area from which it draws its audience. If NSMT was indeed blind to color, then it would at least match its own community, since presumably talent is distributed equally throughout all racial and ethnic communities. But North Shore, while it does do local casting, also casts out of New York, where there is no shortage of racially and ethnically diverse talent. So are their numbers a result of bias on the part of the theatre or an utter failure of their casting mechanisms? That’s a question with which one hopes they’re willing to grapple. But the only explanation for the failure to match up to their color blind rhetoric lies in there somewhere.

If North Shore were a not-for-profit, the pressures of granting bodies – foundations, corporations and government agencies – might force their hand. But presumably so long as they’re selling sufficient tickets to operate, owner and producer Bill Hanney only answers to the box office. Consequently, he might do well to look at the some of the demographic studies linked earlier, because they show the same story that’s happening in metropolitan areas around the country: whites do not represent the majority of most major cities and soon will not represent the majority of the population of America overall. If he hides behind vague commitments to colorblind casting which aren’t even borne out in his actual casting, then perhaps he’ll gain his awakening on a wholly economic basis. After all, in order to sustain a theatregoing audience for his venue he needs to demonstrate that his seats are open and welcoming to all by proving it through the artists he puts on stage.

Note: because of the limited information on the North Shore website, fuller information on their casting during the Hanney era may yield different results. If North Shore wishes to share that information, data will be recalculated and this post will be revised accordingly.

Game of Thrones: The Rock Musical – The Unauthorized Parody

Earlier today, I received an invitation to an Off-Broadway show called Game of Thrones: The Rock Musical – The Unauthorized Parody. While I appreciate the offer, I’m not putting the show on my theatre calendar.

The simple reason for this is that I’ve never seen Game of Thrones. So spending time with a spoof of something I know only from a deluge of comments on social media seems unappealing. Yet it’s only the latest in a line of shows which exploit similar territory, creating a theatrical sub-genre: a veritable unauthorized parody parade.

I can think of a few predecessors, including Thank You for Being A Friend (a musical Golden Girls spoof), Showgirls! The Musical!, Friends the Musical Parody, and Bayside! The Saved By The Bell Musical. I’m sure there are more.

I’ve never seen or read the source material to any of these (apart from Friends, which long ago lost its appeal), so I’ve not checked out the shows. Why put myself in the position of being the odd man out when all around me people would be having a good time (presumably) and getting all of the references?

I had an experience much like that at an entertainment called Drunk Shakespeare (I don’t consume alcohol) and attended only because a young former colleague was among its producers. But it simply reminded me of high school and college parties where I felt awkward and out of place.

Of course, anyone can do anything they wish to Shakespeare, whose works haven’t been in any way eligible for even a whisper of copyright protection for centuries. In general, though, even for works under copyright in US law, such as Game of Thrones, there’s a carve-out specifically for parodies. The law insures we can make fun of things, which is a pretty terrific protection.

That said, I can’t help wondering whether many of these shows are emerging less from a creative impulse but rather a baldly mercenary one – that the principle of fair use prompts the creation of works that exist mainly to capitalise on the underlying work. It’s entirely legal, but I have to ask whether it’s a case of commerce over creativity.

I love parody when done well. My friends at the Reduced Shakespeare Company have decades of experience spoofing broad targets – sports, books, US history and the Bible, among others. I thoroughly enjoyed a fringe show called Pulp Shakespeare several years ago, which rendered Tarantino’s film Pulp Fiction in iambic pentameter. I regret missing the one-man show in which the performer enacted Macbeth in the voices of characters from The Simpsons.

Forbidden Broadway has become beloved for taking the theatre itself down a notch, using the tunes of the shows it toys with. But it’s worth noting that its newest incarnation, Spamilton, while taking on more than simply the show its title implies (one of its best jokes comes from a late appearance by a character from a 40-year-old musical), surely benefits from a strong, singular parodic association.

Terry Teachout, drama critic of The Wall Street Journal, has taken to referring to the endless churn of works based on movies that arrive on Broadway as “commodity musicals”.

My bias against some of these spoofs is that I fear they are commodity parodies, judging solely by their marketing. After all, if they must deploy lengthy titles for the specific purpose of ostensibly distancing themselves from their source while simultaneously exploiting it, they’d seem to be trying to have their cake and eat it.

I don’t begrudge the creators of these shows any success nor do I wish to condescend to their audiences. I’m not their target audience as shown by my unfamiliarity with the works they’re sending up.

But even though they may succeed, I suspect that in proliferation, they run the risk of saturating the market, much as movie parodies like Hot Shots and Scary Movie devolved from the heights of Young Frankenstein and Airplane and burned out the genre.

So I forgo certain parodies based on gut instinct, while admittedly delighting in others. For those I skip, perhaps I’ll take the occasional evening off to leaf through my volume of vintage MAD magazine spoofs. After all, even Stephen Sondheim wrote for Off-Broadway’s The Mad Show back in the 1960s. You never know where a parodist could end up someday.