Despite its origin in a 1988 film from John Waters, the underground master of camp, shock and transgression, the story of Tracy Turnblad, as told in multiple iterations, has become wholly mainstream. Thanks in large part to the 2002 stage musical version, Tracy’s story of leading an effort to integrate a local TV music program in Baltimore has had America singing and dancing along for years now. Beyond its more conventional musical numbers, it offers up a craven TV producer who laments her salad days as “Miss Baltimore Crabs” and teens miming the crushing bugs as part of a dance craze. Indeed, the mildly subversive tone of the musical, while significantly less spiky than the original film, is set by Tracy’s buoyant paean to her home city, which includes shout outs to the rats on the street and the local flasher.

In spite of its popularity and its pro-integration narrative (the show is set in 1962), the musical has been been criticized by some as advancing a white savior narrative, since it portrays a white girl, albeit one who is ostracized for her weight, taking the initiative and risk to make “every day Negro Day” on The Corny Collins Show, the musical’s American Bandstand analogue.  Given that it’s explicitly about the crossing of the racial line between blacks and whites, a certain amount of disbelief met the news in 2012 that one Texas high school did the show with an all-white cast, seemingly deracinating a story about race and posing a particular challenge to truthfully representing the narrative.

Consequently, the casting of a March production of Hairspray at Princeton University, in which Tracy was played by a biracial student and her mother, Edna, was played by a black student, was both surprising and informative. It demonstrated how this musical about integration can be explored anew, 15 years after its debut and 30 years after the original film. The production, which played for five performances in a studio theatre on the campus, was the senior thesis project of two students, Alex Daniels, who played Tracy, and AJ Jones, who directed (only her second time directing). Princeton does not have a theatre major, but does offer theatre certificates for a concentrated course of study. The production was entirely student driven, except for its musical director and its sound designer.

In an interview with Arts Integrity subsequent to the run, Daniels, who describes herself as ethnically biracial and racially black, and Jones, who identifies herself as white, explained the thinking behind their production.

Daniels began by saying, “When I was a freshman, way back when, I was having a conversation with someone about dream roles of mine and I mentioned that I really loved Tracy and that she would definitely be a dream role. That person was like, ‘That’s not possible. You’re not white. You could never play Tracy.’ And so that comment really hit me in a not so great way. Why should the color of my skin limit me from any possibilities? I brought it up with AJ and from there we thought, why not? This script and this show seem to be catered to having a person of color in this position struggling with these issues.”

Expanding upon the inception story of their Hairspray, Daniels said, “When Alex told me about this comment, I started thinking more about Tracy possibly being biracial and it made a lot of sense, especially given her role in the show, bringing these two groups together. It changes the relationships with all of the characters in the show and gives them all a little more depth as well.”

In the production, Daniels appears in facial makeup that is noticeably lighter than her own skin tone. The rationale for this was described by Daniels as addressing, “How is Tracy going to fit into this world when she very clearly is not white? I personally cannot pass as white. Then we had the conversation about what if she’s trying to pass. What if she’s using makeup to lighten her skin, using whiteface in order to make it through every day in this community. So that’s where this conversation came in. We also just felt that the story of passing was something we wanted to talk about, the extent to which African-American, biracial females, and definitely men as well, went to belong in this community to reap the benefits of being white.”

Jones noted, “We spent quite a bit of time testing a lot of different types of makeup. We decided to have it only on her face because we wanted to make it clear to the audience that she’s not white, that she’s passing as white. We discussed whether other characters in the show know that Tracy’s trying to pass, and we came to the conclusion that yes, they have to be suspicious, but they can’t really know for sure, they can’t really say anything about it, because of the power of this white face that she has on.”

*   *   *

At this point, it would be fair to question whether this color conscious casting of the roles of Tracy and Edna was contrary to the authors’ intent for the show. Arts Integrity asked that very question of Music Theatre International, which licenses the show, specifying what the production had done in regards to those roles. In reply, MTI president Drew Cohen said that the company does not place casting restrictions according to race on its customers, and pointed out specific material answering questions about racial casting for Hairspray, in the form of a letter from the four authors of the show, as well as John Waters. It reads, along with instructions for using it, in its entirety, as follows:

The use of make-up to portray black characters in your production (e.g., blackface) is not permitted under this Production Contract. By signing below, you agree to inform the director of your production that such use of make-up is strictly prohibited.

If your production of Hairspray features actors who are portraying characters whose race may be other than their own, you may elect to include the below letter from the creators of Hairspray in your program. You are not permitted to edit the letter in any way. 

Dear Audience Members,

When we, the creators of HAIRSPRAY, first started licensing the show to high-schools and community theatres, we were asked by some about using make-up in order for non-African Americans to portray the black characters in the show.

Although we comprehend that not every community around the globe has the perfectly balanced make-up (pardon the pun) of ethnicity to cast HAIRSPRAY as written, we had to, of course, forbid any use of the coloring of anyone’s face (even if done respectfully and subtly) for it is still, at the end of the day, a form of blackface, which is a chapter in the story of race in America that our show is obviously against.

Yet, we also realized, to deny an actor the chance to play a role due to the color of his or her skin would be its own form of racism, albeit a “politically correct” one.

And so, if the production of HAIRSPRAY you are about to see tonight features folks whose skin color doesn’t match the characters (not unlike how Edna has been traditionally played by a man), we ask that you use the timeless theatrical concept of “suspension of disbelief” and allow yourself to witness the story and not the racial background (or gender) of the actors. Our show is, after all, about not judging books by their covers! If the direction and the actors are good (and they had better be!) you will still get the message loud and clear. And hopefully have a great time receiving it!

Thank You,
Marc, Scott, Mark, Tom & John

While Cohen did not respond directly to the query regarding the specific color conscious casting at Princeton, where certainly white students were available, his pointing out of the letter, and his comment about not imposing racial restrictions, strongly indicate that such casting is permissible. In a separate piece of correspondence, Cohen stated, “The key is that the show must be performed as written and the characters should be portrayed as written.” He also clarified that while the authors’ letter singles out high school and community theatre productions, it is applicable to university productions as well.

*   *   *

So what was the effect of this concept of Hairspray? It seemed, as the thesis students intended, to deepen the story, and staging decisions only enhanced that. “Good Morning, Baltimore” was played slowly, more like a sad ballad, suggesting that Tracy’s everyday routine was not a joyous leap from bed, but rather the start of a new day of struggle. When the perpetually panicky Prudy Pingleton commented to Edna, her laundress, about “colored music,” it read as more pointed than ever before, and Edna’s dismissal of the characterization read as self-negating. When Velma von Tussle humiliates Tracy at her dance audition, it ceased to be solely an attack of her weight but also decidedly racial. When first encountering Edna and Tracy together, Velma’s already ugly sizeist comment “I guess you two are living proof that the watermelon doesn’t fall too far from the vine,” became doubly ugly. That all of the female characters are released from jail after the altercation at Motormouth Maybelle’s save for Tracy, a particular focus is placed on the continued imprisonment of a young woman who is biracial, while the black characters and white characters are all freed.

At the same time, the friendship between Tracy and Penny came across as particularly special, since clearly Penny – in and out of the Turnblad house like any teenager – surely had no questions about Tracy’s mixed parentage, but ignored the racial faultlines of the day. When Seaweed declares that, “Detention’s a rainbow experience,” he negates any concerns about racial divisions or conflicts as well for Tracy, who has been trying to pass as white. Detention becomes, in effect, a racial safe space.

By consciously altering the racial dynamic of Hairspray through only two characters, albeit leading roles, it is fair to suggest that the story of racial acceptance, integration and diversity became possibly even more resonant than the original portrayal as defined by the Broadway production. While the authors’ letter permitting cross-racial casting may have been intended primarily to address situations where there aren’t sufficient performers of color available, it laid the groundwork for Daniels and Jones’s interpretation, even though they asked the audience to engage directly with their color conscious casting, rather than suspending disbelief over it.

*   *   *

It is unfortunate to report that Cohen’s statement, common to all licensed productions, that “the show must be performed as written” was not fully adhered to when it came to the text. Daniels and Jones acknowledged that they had made small changes and excisions, such as changing the song “Big, Blonde and Beautiful” to “Big, Black and Beautiful,” as their Motormouth Maybelle wore her hair more naturally. Perhaps most significantly, in “You Can’t Stop The Beat,” a late segment involving the Von Tussles, both mother and daughter, in which they are encouraged to join the full on party, initially resisting and then ultimately joining in, was gone. They were denied their redemption as the authors intended.

Because Daniels and Jones did not request permission to make these changes, and perhaps other smaller ones that went unnoticed, they were violating the authors’ copyright and the licensing agreement. While their production may have been a student thesis and part of their academic work, it was publicly presented, and for multiple performances, so the legally standard practices should have applied. That they felt the need and the freedom to reauthor any of the show is a shame, since the casting, direction and performance had already been transformative, while still working within the existing text and the leave granted by the authors regarding race.

*   *   *

It is the right of Tom Meehan, Marc Shaiman, Scott Wittman, John Waters and the estate of Mark O’Donnell to determine what may be done in productions of Hairspray that go beyond the existing casting template, and they’ve offered up their thoughts for producers and directors to consider. This mirrors Lin-Manuel Miranda’s statements regarding the racial casting of In The Heights, where he has made clear that in high school productions, the cast need not be Latinx, in whole or part, so long as the performances are respectful of the Latinx identity. But it’s important to remember that this guidance is specific to these shows by these authors about their own work, not a policy applicable across the literary spectrum. Texts should remain inviolate without express permission, which may be hard to secure, but is nonetheless legally and ethically required.

While the criteria for evaluating the Princeton students’ thesis academically is unknown, they did achieve two silent but memorable moments that have not typically been part of productions of Hairspray, but are both worth remembering. The first came midway through Act II when Tracy, inspired by “I Know Where I’ve Been,” wiped away the makeup which had been used to indicate that as a biracial teen, she was trying to pass as white, and would no longer. She becomes secure with her racial identity, even if it means more struggle in that community in that era.

The second memorable invention came in the very final moments of the show when, after the joyous and victorious refrain of “You Can’t Stop The Beat” hit its final peak, there was not the customary blackout. Instead, the cast (sans the Von Tussles, as noted previously) were arrayed in a straight line across towards the rear of the stage. Maintaining the rhythm of the now ended song, they stepped forward in unision, in unity, to the beat, beat, beat, and the dance party was transformed into the front lines of a civil rights march, of the fight for racial equality that would extend far beyond the integration of a single teen TV show.

There’s a very large tree that has been traveling around the Dallas-Fort Worth region in Texas. There’s no need to worry, as the tree hasn’t acquired independent mobility and become sentient, but rather, it has made major appearances in two theatrical productions in the area in a short span of time. Designed originally by Bob Lavallee for the Trinity Shakespeare Festival production of A Midsummer Night’s Dream at Texas Christian University, it just finished a run center stage in Camelot at Lyric Stage.

As Mark Lowry reported on his TheaterJones site, the tree would have been headed for the dumpster after the end of the run of Dream, had not Steven Jones, producer at the Lyric, asked if he could use it as part of the set for Camelot. Lavallee consented, provided he received credit. However, he declined to adapt his whole set for the Lyric production.

But as Lowry noted, other scenic pieces from Dream found their way into the production of Camelot as well, albeit with some new scenic painting and set dressing, with the overall set credited to Cornelius Parker. This suggests two problems. The first is whether Lyric had the right to use, or whether Trinity Shakespeare had any right to provide, anything but the tree in connection with Camelot. The second is the fact that Cornelius Parker doesn’t exist – the name is a pseudonym for Steven Jones.

“Camelot” at Lyric Stage (photo by Michael C. Foster

There’s no mention made of a contract, only an agreement and a payment for use of the tree; Lavallee is not a member of United Scenic Artists, so he doesn’t have union backing to help work out the situation. But it seems that the appearance of additional scenic elements from Dream in Camelot goes beyond the agreement, regardless of how they were used or disguised in their second appearance. Unless Jones indulged himself in some unauthorized dumpster diving in arranging for the tree and the other elements to be transported to Lyric Stage, it appears that Lavallee has an issue with both Lyric Stage and Trinity Shakes, since the latter, in supervising the load out of the tree, presumably had some staff overseeing what went on the truck, and more was allowed to go than what was agreed to.

Jones’s use of a pseudonym to disguise his own role as the coordinator of scenic elements for the production – using the word designer may be ill-advised here depending upon how much of Lavallee’s work actually appeared – seems a deliberate attempt to disguise the provenance of the work, when only the tree itself was credited to Lavallee, by agreement. While Lowry reports that Jones has used the pseudonym once before, for a set he devised using pieces in the theatre’s stock (notably Funny Girl and The King and I), the obfuscation is troubling. While Jones chalks it up as, “I didn’t want to take credit for it,” it’s impossible not to wonder whether the genesis was less modesty than an understanding that he didn’t really design either show, but was deploying the designs of others. In any event, it’s misleading the audience and the press, who operate under the assumption that what appears in their programs is truthful.

As a corollary here, some might invoke authors who have written under pseudonyms (Stephen King writing as Richard Bachman, for example, or Joyce Carol Oates as Rosamond Smith). It’s important to recognize that those authors opted to put false names on their own work. In King’s case, the subterfuge didn’t last long, and was in part because his publishers were concerned about flooding the market with new works from the prolific novelist; for Oates, it was an effort to distinguish between the different modes, and even genres, in which she writes. When the Coen Brothers edit their films under the false name of Roderick Jaynes, again, it’s their choice for their own work, and their names already appear repeatedly in the credits of their film.

Going beyond the case of the Trinity Shakespeare/Lyric Stage tree and other scenic elements, this case points up a continuing challenge for designers regarding credit when their work is incorporated, especially when the use is partial but significant, into other productions. If a scenic designer creates distinctive scenic elements that are newly built for a given production, is that designer due credit and/or compensation when they are used – whether at the same theatre for a different show, or by another theatre and show entirely? If a costume designer creates, say, their own unique take on the Ascot scene in My Fair Lady, and then those costumes appear in the Prince’s ball scene in a production of Cinderella, what is the original designer due? How does copyright come into play?

Many theatres maintain costume and scenic stocks, so they are not constantly building new pieces Some theatres may operate rental houses or sell their costumes to independent costume rental houses. So when does the design recognition end? It’s a sticky wicket with no easy answers, but it’s particularly complicated when a design is credited to one person – real or fictitious – and it contains a noteworthy portion of designs that are actually the work of someone else.

This isn’t meant to say that the use of stock items should be abolished, because that’s truly wasteful and for some companies would make productions economically unfeasible. There are legitimate cases to be made for shows being drawn from stock, or collaging pieces from other productions in order to create what is essentially a new overall design. It’s just to say that perhaps there’s more credit (and perhaps royalty) due than is currently given, especially at the professional level.

As for Cornelius Parker, fictitious designer, hopefully his ignominious career is at an end. However Lyric Stage designs, devises or assembles its productions in the future, they should own up to the truth of it, and not pretend to more creativity than they may be putting on their stage.

Now in its 20th year, the New York International Fringe Festival, better known as FringeNYC, has presented nearly 4,000 productions for five-performance runs each summer, sustaining a beehive of theatrical activity in spaces on the Lower East Side. In contrast to many fringe festivals, all of which seem to owe a debt to the progenitor, the Edinburgh Fringe, FringeNYC is a curated festival, with its 200 annual productions chosen from an array of applications. Unlike reports from Edinburgh, which have some 8,000 productions scrambling for space and audiences each summer, FringeNYC engages all of the necessary spaces and doles them out to the productions they accept, controlling the probability of the highly speculative rents that have crept into Edinburgh. FringeNYC also negotiates an agreement with Actors Equity, provides lighting and sound equipment, and covers general liability insurance.

FringeNYC’s two decade history and success made last week’s “Biz Blip” from the Dramatists Guild to its members, challenging terms regarding subsidiary rights, or ongoing revenue, within FringeNYC’s authors agreements all the more surprising. While it was not sent as a press release or public statement, the missive, issued the night before the 2016 Festival began, quickly became a topic of conversation on social media. One of the early sources for non-Guild members was Isaac Butler’s Parabasis blog, which reproduced the item in its entirety. Headed “NYC Fringe Contract: Warning,” it read, in part:

Playwrights should be aware that the standard for fringe festivals around the world (including the US Association of Fringe Festivals, the Canadian Association of Fringe Festivals, and the Edinburgh Festival, the model on which most other festivals are based) is that, as presenting entities that are not actually producing the work, festivals are not entitled to subsidiary rights from authors. The NYC Fringe, however, under Article IV-B of their contract, requires an author to pay 2% of subsidiary rights revenues earned within 7 years of the festival (after the author’s first $20,000). And the contract does not limit the scope of its definition of “subsidiary rights,” so it includes every use of the play on a worldwide basis; this is a definition broader than a LORT theater or even a commercial off-Broadway producer might be granted.

Because Arts Integrity and its director Howard Sherman have ongoing relationships with both the Dramatists Guild (having worked with them on multiple instances of theatrical censorship and having received an award from the Dramatists Legal Defense Fund) and FringeNYC and its producing artistic director Elena K. Holy (including reporting a 3-day “Fringe Binge” for Narratively.com and participating in a panel on censorship during the 2015 festival), it was incumbent that both parties have an opportunity to explain their policies and views.

*   *   *

In conversation at one of the FringeNYC Lounges on the first full day of the 2016 Festival, Holy said of the Guild statement, “My initial response is that most of what they’ve said is true about our contract. However our contract incorporates a Participants Manual, which is like 64 pages, and none of that was included [in the Guild’s summary of issues]. We don’t have an attorney on staff so we wrote the participants’ agreement in 1997 and haven’t really changed it much since then. Every year, facts, figures, dates and stuff change, and technology changes, so that part gets put into the Participants Manual.”

Regarding the Dramatists Guild’s explicit comparison to the Edinburgh Festival, Holy explained, “We call ourselves presenters, but my biggest point of contention with what the Dramatists Guild said is we should be compared to Edinburgh. They see Edinburgh Festival Fringe as an industry standard, which totally makes sense, they’re the granddaddy of them all, they were 50 years old when we started, but the model is very different. They charge a similar participation fee to us and then they hand you a list of venues, and say ‘Great, go out and rent one of these venues to produce your show in.’

“Our thought was that if we did that in New York City and set loose 200 shows all looking to book the same 16 days, forget ten grand a week it would be thirty to forty grand a week, just through supply and demand. So we rent the venues, equip the venues, we staff the venues, we do marketing, we do marketing speed dates, director speed dates, town meeting – we are very hands on, and we’re invested in their production and we like to have skin in the game. I like that we are an adjudicated festival.”

Regarding the festival’s economics, Holy said, “On our 2014 990 form, we operated on 86% earned income. We’re invested in our artists. We spend between $6,000 to $7,000 on each show at FringeNYC. Part of that is we want a) for them to be invested in us and b) if they see huge success, huge unlikely success, for having done the show at FringeNYC, which does about 13,000 industry and press comps a year, then we would like for that to be recognized in order to keep our participation fees low for future artists. In our 19, almost 20, years now of doing our festival, three shows have contributed to that.” She cites Urinetown, which paid approximately $5,000 in royalties to the festival, as well as Eva Dean Dance and Dixie’s Tupperware Party.

Holy acknowledges that some applicants resist FringeNYC’s terms.

“Our 2% clause,” she notes, “when a famous person walks into our office and fills out an application form and doesn’t submit their script, or when someone’s agent calls us and says, ‘I know they’ve been accepted into the festival but we can’t sign this,’ it’s a pretty good indication that they don’t need one of our 200 slots.

“We only have 200 spots and if their career is beyond what we can offer, if their play is being produced that widely or if in the past they’ve had opportunities on Broadway, there’s really no reason for our 2500 volunteers to volunteer to help make somebody’s show happen when that somebody has ample opportunity elsewhere. So I’m not ashamed to say it scares a lot of people off and they’re probably people that shouldn’t be applying for our festival even.”

But isn’t it possible that FringeNYC is capitalizing on people’s desire to get their work seen on a New York stage, whatever the cost?

“Are they,” Holy asks, “given that it’s kicked in three times in 20 years? Given that it doesn’t kick in until after they’ve made $20,000, which actually these days means that you have to have a major motion picture made out of your play? Are they really encumbering their project? Most often what happens here is it’s not even the plays from FringeNYC that gets picked up. It’s our playwrights’ second and third plays that are what’s being produced regionally, or that’s when they get the Netflix series or the television show or whatever. So we certainly are not still around because of that $5,000 from Urinetown in 2000, or it was probably 2001 that it started.” She notes that the Fringe has received no subsidiary income from such shows as Matt and Ben and Silence! The Musical.

*   *   *

Regarding the citation of other fringe festivals in the Dramatists Guild’s “Biz Blip,” David Faux, associate executive for business administration at the Guild, explained in a phone conversation, “When we speak to festivals and producers, every single one of them can say, ‘We’re special, we’re different, we do things differently from what the other people do,’ and invariably they’re telling the truth. That’s the beauty of the theatre, every festival has its unique attributes, every producer has his or her unique attributes that they bring that nobody else can bring. That’s part of the chemistry of good theatre. So the fact that they do something that other festivals don’t do, we can just look at the other festivals and say, ‘Yeah, but they do things that you don’t.’ Why would the thing that they do different have to rest on the authors’ shoulders? Why should the author be burdened with a unique attribute of the festival?”

“We look at thousands of contracts that our authors ask us to review every year,” said Faux. “When you see that many contracts you see patterns and you see where theatres and festivals are deviating.”

“It’s always germane what other people are doing in the market,” notes Faux. “With the Guild in particular we don’t tell members whether or not to sign contracts, we don’t dictate terms of contracts, but we do express our opinions when we believe a contract has substandard terms. In that way, all we have is the comparison.”

Asked to explain a very general idea of common practice regarding subsidiary rights, Faux said, “Commercial theatres certainly receive subsidiary rights. They’re taking on a lot of risk and this is how the author shares in that risk on the back end. If it works out, the success of the authors work can go back to the commercial producer or the investors.

“With not-for-profits, there’s a different structure, because they are receiving grant monies, they don’t pay taxes, they get a certain number of benefits that commercial producers don’t. So that’s why it would be unusual to see an author giving subsidiary rights of more than 5% to a not-for-profit theatre. That’s about the top when you talk about regionals, LORTs. We’ve seen a trend lately of only having subsidiary rights kick in after a significant windfall, and by significant we’re talking $40,000 to $50,000. These are general terms.

“At festivals though, you don’t see authors having to yield a revenue stream on their future revenue. That’s what’s different about this. You know what happens, a theatre festival in Wichita, Kansas will hear that NYC Fringe is getting subsidiary rights from the author. And that festival in Wichita doesn’t say, ‘Oh, it’s New York City, of course it gets something we don’t.’ That festival in Wichita says, ‘Our production values are even better than what they’re getting in New York. Our dedication, the number of hours we put in, because we have lower overhead, we can spend more time on each individual, festival has more value.’ And they may be right about that.

“But nobody thinks, ‘New York City Fringe is so much better than my festival they deserve what they get.’ They all think they have something to bring to the table that New York City Fringe doesn’t. So suddenly because one festival says, ‘I want to tax the author,’ now authors are getting taxed all across the nation. So we have to say something about it before it becomes a standard practice.”

*   *   *

Addressing some smaller items in the Dramatists Guild statement, there are several points that bear clarification.

• The Guild’s memo states, “It has been reported to us that the Fringe sent out its contracts to authors for this year’s festival at the end of July. If that is true, then it was a contract presented only a few weeks before the festival was scheduled to begin, after money has been raised and spent, leaving little or no time for authors and producers to assess their options in good faith.” Holy points out that all of the major terms of the agreements are included as part of the application process, so the terms should not come as a surprise, unless, in her words, “they didn’t read the information on the application before they submit.” However, Holy acknowledges the lateness of the agreements this year, saying, “I take full responsibility. We were trying to do everything electronically this year using DocuSign and I set it up so that the author’s agreement would fire when everyone had completed step one, the participants agreement and their W-9, and they haven’t all done that yet. That was a foolish way to set that up. So then I just gave up and e-mailed them a PDF.” Holy noted that this was a new process this year, replacing the previous practice of mailing paper contracts back and forth.

• The Dramatists Guild cites “the standard for fringe festivals around the world (including the US Association of Fringe Festivals, the Canadian Association of Fringe Festivals, and the Edinburgh Festival, the model on which most other festivals are based).” However, Jeff Larson, responding to an online inquiry by Arts Integrity to the US Association of Fringe Festivals, commented, “The USAFF is a loose affiliation of United States Fringes and does not enforce standards on its members.”

• The Guild noted, regarding the authors contract, that, “There are no obligations specified (either in the contract or the rules) for the Festival to support the show with any particular expenditure of marketing monies, nor any warrant of proper billing for the author and the play in whatever marketing and advertising the Fringe might do, and there is also no guarantee of mutually acceptable venues or performance schedules for the play, nor any discussion of the festival’s duties with regard to providing technical support.” As Holy noted above, those terms are included in the Participant Manual, an Appendix to the Participant Agreement. While the Guild concerns itself solely with the authors agreements, in the interest of transparency, FringeNYC might consider providing both the authors and participants agreements, as well as the participant manual, to the Guild so that all pertinent terms regarding production of the authors’ work are made clear.

• The Philadelphia Fringe Festival, which more closely follows the Edinburgh model, posts its guidelines and artist tools for prospective applicants. They can be found at http://fringearts.com/all-presentations/artist-resources/ for comparison purposes. Details on producing at the Edinburgh Fringe itself can be found at https://www.edfringe.com/participants/planning-your-show.

*   *   *

So what of the FringeNYC terms regarding subsidiary rights, given the Guild’s characterization of prevailing practice and Holy’s acknowledgement that the terms cited were correct?

It is perhaps useful to look at the example of another New York summer festival, the New York Musical Festival, commonly referred to as NYMF, in operation since 2004 and the starting place for such musicals as Next To Normal and [title of show]. In 2010, NYMF sought to introduce a subsidiary rights clause to their agreements, saying in a statement:

Writers are the core beneficiaries of NYMF. Our goal is for NYMF shows to have future life, and for as many of our writers as possible to have their work produced again after the festival.

We specifically chose not to demand income from future third-party producers, as many other theater companies do, because doing so would encumber the project — making it less likely to be optioned or produced. Instead, we carefully structured our contract so that if — and only if — writers benefit substantially from NYMF’s support, they give back a small percentage so that we can provide similar opportunities to future generations of writers.

We think that’s fair.

Following a challenge by the Dramatists Guild to these new terms, NYMF withdrew its new terms in less than a month, writing in a statement:

The mission of NYMF is to support theatre artists, not to argue with them. We therefore withdraw our request to share in the subsidiary rights of authors participating in the 2010 Festival and will remove that section (Paragraph 5(E)) from our contract. Given the challenges of moving new musicals from the page to the stage and on to further productions, NYMF wants first and foremost to ensure that the shows we present have the unified support of the community.

While not working in the same kind of festival format, the O’Neill Theatre Center, one of the country’s oldest play development labs, also sought to introduce a subsidiary rights clause in 2006, at the start of the application process for the 2007 summer season. That effort drew a rebuke from Marsha Norman and Christopher Durang, the co-heads of the playwriting program at The Juilliard School at the time. A report from the New York Sun notes that the effort was quickly rescinded:

“We have their assurance that they will not this year, or in the future, be asking for a percentage of future royalties from the plays they accept for development,” Mr. Durang and Ms. Norman wrote. “They are looking for other sources of funding, but those monies will not come from your subsidiary rights.”

As the director of the Arts Integrity Initiative, I must step out of the third person to note that during my tenure as executive director of the O’Neill Theatre Center, from 2000 to 2003, I recall being charged by the board of directors to investigate the impact of introducing a subsidiary rights participation in authors’ future royalties. While I do not retain my notes from the time, I clearly remember my survey of prevailing practice, which consistently showed that regardless of whether I spoke with a festival, developmental, or producing organization, there was a clear dividing line for when it was appropriate to negotiate for subsidiary rights. That line was when a show was actually produced, not merely workshopped or showcased, even in cases where the work in question had been commissioned.

*   *   *

In conversation, Elena Holy noted that “we call ourselves presenters,” although in the context of explaining how the role of FringeNYC differs from the Edinburgh Fringe, she noted more direct involvement with productions than many presenters might have. In its Participant Agreement, which is signed by the designated liaison for each FringeNYC show, FringeNYC identifies itself as the “Presentor,” as distinct from a Producer (to which the Participant may be equivalent, even when the Participant is the producer, author and performer all in one). It is the Participant who is taking on primary responsibility for raising money, securing rehearsal space, assembling the show and delivering it to FringeNYC – the role of a Producer – and is even subject to penalties if it is unable to do so after a certain date, though they may not have continuing right to the show themselves. While FringeNYC does provide resources to each production and makes an investment of resources in them, mores than many fringe festivals, anecdotally the costs of producing the shows themselves, especially for companies not based in New York, can be considerably more than the FringeNYC allocation, once artist compensation, physical production, and travel and housing are factored in. In addition to the 2% subsidiary rights participation that FringeNYC asks of authors, it also asks for 2% of the Participants’ future revenues as well (again, over the $20,000 threshold).

While the discussion of Presentor, Presenter, Participant, Producer and so on may seem semantic, it’s not. Subsidiary rights typically accrue to producers who mount full productions of shows, at their expense (or with funds raised by them), whether commercial or not-for-profit, although the terms may vary. In Arts Integrity’s experience and in the examples given, they are not customary for productions which do not meet that standard. As for subsidiary rights granted by authors to entities responsible for the original mounting(s) of their play, for more than 25 years, there has been discussion of the complications engendered by encumbrances on authors when works receive several early productions that each secure (or demand) subsidiary rights. Providing them to developmental productions as well could have the effect of making it too expensive to produce a work that has promised multiple payments to multiple entities, or severely impede an author’s ability to be properly paid for subsequent productions. Additionally subsidiary rights are typically activated once a production has given a certain number of performances; as few as five are typically insufficient.

For 20 years, FringeNYC has been and continues to be an invaluable asset for new, inventive, irreverent and diverse work in New York. While it can’t hope to catch up with the longevity of the Edinburgh Fringe Festival, it is deserving of a comparably long life. After the frenzy of the current festival subsides, FringeNYC would be well served to reconsider its policy regarding subsidiary rights, lest it prove an increasing impediment to the depth and breadth of work seen in its venues each summer. But precisely because the Fringe by its nature attracts younger or less established artists seeking a showcase in one of the world’s greatest theatre cities, with the possibility of being seen by industry and media professionals who could advance their shows, their careers, or both, it would do well not to ask more of its authors, its artists and its producers than any other fringe, showcase, workshop, reading series or the like. While many artists have enjoyed and benefited from the Fringe and have agreed to its longstanding terms, with the subsidiary rights language ultimately being activated for the very tiniest percentage, the Fringe’s embracing spirit can set an example for its artists and producers of what they can and should expect in the future, and that begins with their contracts.

As a result of their quixotic effort to secure the first high school performance rights to Hamilton, Wexford Collegiate School of the Arts’s Hamilton videos drew a great deal attention earlier this month, perhaps as much for being pulled from YouTube than from their short life online. A CBC video about Wexford’s efforts to gain the attention of the Hamilton team remains online, even though it contains material that was otherwise withdrawn from circulation due to claims of copyright infringement. That video has been seen much more widely than the original Wexford videos were, racking up many hundreds of thousands of views after being posted to Facebook by the CBC.

In the wake of the debate over the videos, Ann Merriam of Wexford Collegiate, who directed the Hamilton performances, responded to questions posed by Arts Integrity about the origin of the school’s Hamilton videos, and any public performances of the material. The questions were posed prior to the videos being removed from YouTube, with no anticipation that such action would necessarily take place.

Wexford students perform Hamilton on CityTV

Merriam said that the material from Hamilton was performed four times publicly, once at a show choir festival at the Etobicoke School for the Arts, once at a Benefit for Arts Education, and twice as part of the Wexford Variety Show. In addition to “Right Hand Man,” “Yorktown” and “Burn,” which appeared as videos, the songs “Alexander Hamilton,” “Guns and Ships,” and “You’ll Be Back” (identified by Merriam as “The King”) were also performed. In addition to the performance venues mentioned by Merriam, the students also performed on a program called “Breakfast Toronto” on the CityTV channel.

No specific budget for the performances was broken out by Merriam, who wrote, “Firstly, we are a public high school and don’t track costs by production. This project was all volunteers. I didn’t have any budget since it initially was not part of our programmed year.” However, Merriam did indicate that there were costume rentals both for the performances and for the video shoot (which was separate from the public performances), of “approximately $750-800” each time. In addition, Merriam wrote, “We paid $1,000 to a hip-hop artist to create original tracks.”

She explained that the cost of the rentals for the video shoot was covered by a group of parents from “People for Education,” since it fell outside of the school’s Variety Show activities. As for the director of the videos and the multiple choreographers, Merriam said they were all either volunteers or individuals who work regularly with the school on various assignments for small annual stipends. Approximately $1,200 was spent on equipment rentals for the video shoot.

Admission was charged to the Wexford Variety Show, where the six numbers were performed. Past shows have had a $20 (Canadian) ticket price. The 2016 price has not been confirmed. There were also tickets sold for the show choir event.

Given the furor that arose, there was commentary from many quarters. On the legal front, a post from Adam Jacobs, an attorney with Hayes eLaw in Toronto, was most helpful and informative, especially in regards to where US and Canadian copyright laws may differ. However, Jacobs was very clear about where Wexford had gone awry:

SOCAN’s tariffs do not, however, deal with the performance of a musical work in combination with acting, costumes and sets; these “grand rights,” which include many of the other protectable elements from Hamilton, would have to be licenced from the various creators of Hamilton. This leaves Wexford Collegiate in a scenario where, should they offer to pay the relevant SOCAN tariff to perform the musical compositions, they are able to publicly sing musical compositions from Hamilton, just without the accompanying characters, costumes, dialogue, staging or choreography….

Any reproduction of the Hamilton musical compositions, including any reproduction of the public performance of those musical compositions in order to post the video to YouTube, would require a private licencing agreement with the composer and music publisher….

Note, however, that even if one or more Canadian copyright exceptions were to apply, YouTube will apply American copyright law to determine whether there has been any infringement. It is likely that the US law would provide even less scope for the posting of such videos than Canadian law.

While Wexford Collegiate may have been ill-advised to perform musical compositions from Hamilton and post videos of the performances on YouTube, there were avenues available to the school to engage their students’ creativity while complying with Canadian copyright law.

The Dramatists Guild of America issued a statement on copyright in the wake of the Hamilton videos, without making specific comments about the Wexford situation. It read, in part:

When their work shows up in unauthorized productions, or on YouTube videos, it’s not just a matter of lost revenues. It is an infringement on the very nature of the dramatists’ authorship and a violation of their right to control their artistic expression. Even the non-commercial public use of their work by well-meaning fans, either on the internet or in amateur productions in their communities, can damage a show’s value in various markets, and it is a copyright violation under most circumstances. Most importantly, it undermines an author’s prerogative to decide when, where and how their work will be presented.

Finally, it is important to note that for every online commenter who castigated the Hamilton team for, apparently, asserting their copyright (“apparently” since the show has made no public statement on the situation to date), it seemed there was another commenter who took the students of Wexford to task, often quite unpleasantly, for their appropriation of copyrighted material. But what is clear from Merriam’s detailing of the context of the performances is that this was not a case of students going rogue, either in performing the material or sharing in hopes for more opportunity to perform Hamilton, but rather students participating in activities organized by and sanctioned by their school.

It is no surprise that the students were disappointed and confused when the videos were removed, because they were operating within the parameters they’d been given. Invective serves no purpose in clarifying this situation and bringing forward the proper practice for all to understand and learn from. Clearly that learning must come first for the faculty and administration of Wexford Collegiate, who from this point forward, will presumably operate within the guidelines of Canadian copyright law (and US law, where applicable) in all of the work presented by and at the school. Through them, successive classes of Wexford students must be taught what is and is not permissible, so that ultimately the students can preserve their own rights to earn a living from original work they create now and in the future.

CBC video about Wexford “Hamilton”

One final thought: as the school campaigned for attention, media outlets were, as is their nature, attracted to this story because it involved a hot show and talented kids. Save for the CBC, which acknowledged in its original report that these performances were unauthorized (but still embedded the YouTube videos and created their own from them), there seemed to be little thought by video, print or online outlets as to whether they were distributing material that violated copyright. Since they would presumably fight the appropriation of their own material, it’s a shame that reporters, editors and news directors didn’t look at this situation more critically, before playing a role in disseminating material that was not properly licensed for performance or recording.

Wexford Collegiate “Hamilton” video via CBC

On the one hand, it’s hard not to admire the efforts of Wexford Collegiate School for the Arts in Scarborough, Canada, near Toronto. A teacher and her students made as thorough a pitch as possible to be the first high school to produce the musical Hamilton, seemingly having staged several elaborate numbers from the show in their effort to be recognized. While YouTube videos showed a only simple set, the lights, costumes and sound demonstrated how much time and effort was spent trying to get the attention of the creators of Hamilton, with full out performances of multiple numbers from the show.

There’s no doubt that pretty much every high school as well as college theatre troupe in the US and Canada (and perhaps even ones outside of North America) shares Wexford’s desire to produce Hamilton. There are numerous professional venues that are still trying to book the show, be it as a tour or sit-down production, and no doubt plenty of Equity and non-Equity companies would relish the opportunity to perform the musical.

Wexford Collegiate “Hamilton” video via CBC

Of course, Hamilton has connected with young people in a way probably unrivaled since Rent, making the pleas from young people particularly potent. We are living in the time of Hamilmania, as a single musical has captured the interest and imagination of theatregoers and non-theatregoers alike. Everyone wants a piece of Hamilton, or Hamilton itself.

On a practical level, it was always highly unlikely that Wexford’s efforts would succeed. At this point, Hamilton isn’t even confirmed for a professional Canadian debut, let alone a high school one. Performance rights have not been made available beyond official companies derived from the Broadway production. If permission were to be granted uniquely to Wexford, the outcry from high schools everywhere would be deafening.

Of greater concern is that the Wexford videos didn’t appear to be simply demos to make their case. An article from the CBC says, “They’ve [Wexford] already performed an unauthorized presentation of material from the show, parts of which were captured on video.” So there’s more than what YouTubers were seeing? How much of Hamilton was staged at Wexford?

The CBC spoke with the teacher behind the project, Ann Merriam:

“After seeing it the first time, I said to myself, ‘I’m going to see it again, I’m going to tell everyone I know to see it, and I’m going to introduce it to my kids and school and have them perform it,'” she told CBC News in an interview.

Merriam said her school’s performances of the show were “an unbelievably meaningful” experience for the kids.

This suggests something much fuller was presented at Wexford Collegiate, very possibly violating the copyrights of the very artists whose permission is being sought. It’s one thing to work on numbers from Hamilton in a class, but another if what took place rises to the level of performances, even if only in front of the school’s student body. Whether or not the “performances” were advertised or charged for, Wexford may well have crossed a line, and indeed may be teaching some very bad lessons about respecting copyright, even as they were asking permission to produce the show legitimately.

YouTube takedown notice

As of the evening of June 16, the same day the Wexford videos were first featured by the CBC, they were gone from YouTube, due to a copyright infringement claim. So if the goal was to get their appeal noticed, Merriam and her students succeeded, but not in the way they wanted. Perhaps the videos were scooped up preemptively by automated copyright protection services, but the jury’s out.

If much time and money were spent to produce this elaborate pitch, one can’t help but be concerned about the wisdom of the effort at all, both in the allocation of resources and the precedent of performing too much of the material to which the school was apparently fully aware it didn’t have the rights. If either Merriam or the CBC overstated what was actually performed, that’s unfortunate, but since the videos were not parodies or amateurish tributes by a handful of fans, they possibly went too far as recorded material. Arts Integrity both called and e-mailed Merriam before 11 am on the 16th, while the videos were still available, for more clarity on the project, but neither inquiry received a response.

Lin-Manuel Miranda has already said how much he looks forward to seeing Hamilton done by high school students, and you can’t blame Wexford for trying to be the first. However, in the process, the school became an object lesson for other high schools (or any theatre group) thinking of similar gambits, with Hamilton or any show not yet available for licensing. Artists control and are compensated from the works they create through copyright, and violating it is not the way to plead your case.

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’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.

American Idiot at Enfield High casting notice

“Welcome to a new kind of tension.
All across the alienation.
Where everything isn’t meant to be okay.”

The details are very sketchy. The drama director hasn’t yet responded to a call or e-mail. The school principal said that he “wasn’t comfortable” talking about it without the approval of the superintendent, which he did say he would seek. The licensing house that handles the rights for the musical has not responded to an e-mail inquiry about approved changes (although the company’s president is overseas). An anonymous source who provided some background materials won’t be named publicly because they fear recriminations against their child in the school system.

But here’s what’s known: the Enfield High School Lamplighters, in Enfield CT, were scheduled to perform the musical American Idiot this spring, with auditions set for January 13 and 14, with callbacks on January 15. Performances were set for early May.

On January 17, Nate Ferreira, faculty director of the Lamplighters, sent a general e-mail to the school community which included the following statement:

As most of you know, we had a drama club meeting this past Wednesday to discuss the details of producing “American Idiot” as our final show this school year. Due to the mature content of the original production, I have been working with the publisher to modify the script, to ensure that it would be appropriate for a high school group to perform.

This project was very successful, and we feel that the modified script and production notes maintain the integrity of the show, while removing profanity and the more adult scenarios in the original Broadway production. The publisher is even starting the process of turning our edited version of the script into their official “School Edition” of the play, to allow other high schools to easily perform this play in the future.

As I’ve stated at our student/parent meetings during the past two school years: this extended production process was intended to allow us to work on a show that most of the kids were extremely excited about, while continuing the award-winning Lamplighters tradition of exploring serious issues in a mature and responsible way. In the same way that our presentation of the student-authored and directed “Happily Never After” last year did an excellent job of handling the difficult issues of domestic abuse and justifiable homicide, “American Idiot” opens discussion about many issues of young adulthood.

Unfortunately, a very small number of extremely vocal people have complained about our choice of production. This led to Mr. Longey [principal Andrew Longey] and I meeting on Friday to discuss a change in our choice of production. To be clear, Mr. Longey did not force us to change – he and I took a long and careful look at all aspects of the show, and all arguments on either side. At this late stage it is very difficult to switch to a different play, but I do feel that it is best for us to set aside “American Idiot” for the time being. I want ALL of our club members to be able to be a part of our musical, and I want to be absolutely certain that the play happens at all.

Currently, the last post on the Lamplighters Facebook page is a reference to a meeting on January 20. There is no announcement of a new show for the spring.

Billie Joe Armstrong in American Idiot on Broadway

While hopefully more details will fall into place, there is someone else who would like to see the production of American Idiot go on. I reached out to Christine Jones, who designed the set for the Broadway production of American Idiot, in an effort to make Green Day frontman Billie Joe Armstrong, the composer and lyricist of the show, aware of the situation. Armstrong sent back the following message through Jones in a little over an hour’s time, and reportedly also posted it on Instagram (it is reproduced here precisely as he wrote it):

dear Enfield high school board,

It has come to my attention that you cancelled your high school theater production of American Idiot.

I realize the content of the Broadway production of AI is not quite “suitable” for a younger audience.

However there is a high school rendition of the production and I believe that’s the one Enfield was planning to perform which is suitable for most people.

it would be a shame if these high schoolers were shut down over some of the content that may be challenging for some of the audience. but the bigger issue is censorship. this production tackles issues in a post 9/11 world and I believe the kids should be heard. and most of all be creative in telling a story about our history.

I hope you reconsider and allow them to create an amazing night of theater!

as they say on Broadway ..

“the show must go on!”

rage and love

Billie Joe Armstrong

P.S. I love that your school is called “Raiders”

Mr. Ferreira seems to have followed every appropriate step in the process of planning this show for Enfield High, but the production has been suspended. Yet he is still hoping that American Idiot will be done at some point. So is its author, who has apparently granted permission to alter the work to make it more appropriate in a school setting. Perhaps there’s still room for dialogue, and Enfield High can still give its students the opportunity to take on challenging, modern work.

If indeed a few parents resulted in spoiling this experience for all of the Lamplighters, that would be a real shame that denies opportunity to many in order to satisfy the views of a few. I’d rather at this turning point, the school was directing the students where to go – towards work that will help them grow as performers and as people, towards work that provokes rather than palliates. I hope they’re allowed to have the time of their lives with American Idiot, sooner than later.

Update, January 25, 10:45 pm: In an article in The Hartford Courant that went online an hour ago, the Lamplighters director Mr. Ferreira represents his intended revisions to the text of American Idiot in a markedly different framework than he did in his e-mail to the school community. Per The Courant:

Ferreira said the performance included “a lot of swearing,” which Ferreira said he’d hoped to limit or eliminate pending approval from the publisher. “There’s some heavy drug use and graphic sex scenes, not things we were going to depict to the extent they did in the original show.”

This is a far cry from the tone of Ferreira’s e-mail, which declared:

“I have been working with the publisher to modify the script, to ensure that it would be appropriate for a high school group to perform. This project was very successful, and we feel that the modified script and production notes maintain the integrity of the show, while removing profanity and the more adult scenarios in the original Broadway production. The publisher is even starting the process of turning our edited version of the script into their official “School Edition” of the play, to allow other high schools to easily perform this play in the future.”

In my original post, I said it seemed that Ferreira had followed the appropriate steps, and now by his own admission, that is clearly not the case; he did not have approval to make any changes, he had not undertaken a successful project that would influence future productions. While I think there may still be opportunities for Enfield students to benefit from performing in American Idiot, they cannot do so in any version not fully approved by the authors and their representatives.

I don’t support a small number of parents ending the opportunity for the majority of the Lamplighters, but I also don’t support Ferreira’s effort to aggrandize his own sanitized version of the text. This has been a lose-lose proposition at Enfield High: the show has been shut down without being properly defended, and there has been an effort to misrepresent to the community that Ferreira’s text was authorized and even praised, obscuring the authors’ rights and copyright protections.  Unfortunately, the students lose as well.

Update, January 26, 6:30 am: I received the following e-mail from Nate Ferreira at 1:55 am this morning, more than 17 hours after I first attempted to contact him, 14 hours after Principal Longey said he could not comment without the approval of the superintendent, 11 hours after my original post went online, and three hours after the previous update was posted. It is reproduced in its entirety precisely as it was received (except for the lack of paragraph spacing, which is a formatting problem on my site).

Thank you for reaching out to me. I’m sorry that I didn’t see your email until after you had finished writing your post.

Here are some more details regarding our decision not to perform American Idiot. As the director of the school’s drama club, I was very excited to produce American Idiot, and to explore the issues raised by the material.

Due to the fact that some of our club families were not comfortable with their kids being involved in the show, it was my decision to perform a different show. This was not a decision forced on me by the school administration, it was simply what i felt was best for our club membership. Many of the kids were disappointed by this decision, but others were happy because this would allow them to be involved again. I had also begun to feel that the material itself would be better served if I were to stage American Idiot _unedited_ with another local organization, and encourage the families who still wanted to do the show to become involved with it there.

My decision to change the show came prior to finalizing the contract and payment, prior to any rehearsal, and prior to casting or auditions. As with any show that would require edits for a high school group, I had a full list of changes that I felt were necessary to the dialogue, and they would have had to meet approval by the publisher. I made several phone calls to MTI during the past year, and their staff were extremely helpful in explaining the procedures for requesting edits.

I stand by my decision to change our choice of production, and I have always felt that the school administration has been supportive of our efforts.

That being said, I am elated that people like yourself are fighting for the freedom of thought and expression that is so vital to the arts. Your coverage of our situation has helped to shed light on the issue, and to spark serious discussion in our community. Mr. Armstrong’s support has likewise invigorated our students. Although we will not be performing American Idiot for our end of year production, you can be sure that the Lamplighters will continue to push boundaries and explore serious issues.

Thanks again,

Nate Ferreira

Director, Enfield Lamplighters

This post will be updated as additional information becomes available.

Thanks to the National Coalition Against Censorship, which first became aware of this situation and brought it to my attention.

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

Bell Book and Candle at Long Wharf Theatre (Photo by T. Charles Erickson)

There’s been a great deal of discussion in the past couple of months about the rights of playwrights, the legal protections of copyright and licensing agreements, the prerogative of directors to freshly interpret a writer’s work and so on. But none of this should suggest that writers are the only theatre artists whose work is to be respected and protected. This holds true, variously on legal and ethical grounds, for all creative artists in theatre.

This is brought to the fore currently by a production of John van Druten’s supernatural comedy Bell, Book and Candle at the company TheatreWorks in New Milford, Connecticut, running into January. Theatreworks is a non-Equity company that pays its actors a stipend for appearing in productions; whether they are a community theatre, semi-professional or professional non-Equity is subject that could be debated, but that’s not where my focus is fixed.

Instead, I’m looking at photos of Bell, Book and Candle, and though I haven’t seen the production at TheatreWorks, the photos seem strangely familiar. Why? Because the set appears to be a fairly slavish recreation of a production of Bell Book and Candle that was co-produced by Long Wharf Theatre and Hartford Stage three years ago. That production was directed by Darko Tresnjak and designed by Alexander Dodge. Incidentally, it is 30 miles from New Milford to Long Wharf, and 40 miles from New Milford to Hartford Stage.

Bell Book and Candle at Theatreworks New Milford

The similarities are striking, and having discovered that I’m connected to many of the creative team and cast of the Long Wharf/Hartford Stage production on Facebook, I can say that they think so too. Indeed, while I don’t think it’s appropriate to publish people’s Facebook posts when I can’t be sure what’s private and what’s public, I will quote simply the first word of Tresnjak’s initial post on this subject: “Grrrrrr.”

There is no copyright protection for the work of directors (though the ethics of replication should be taken into account by all theatre artists), but designs can be copyrighted, and so the appropriation of Dodge’s work (created in collaboration with Tresnjak for his production) by TheatreWorks director and designer Joseph Russo without permission has crossed a line. While the costumes in the New Milford production are reminiscent of those designed by Fabio Toblini for the prior Connecticut production, they are not replicas. Anyone undertaking a Google search will also discover another set of similar photos from a Bell, Book and Candle at The Old Globe in San Diego in 2007, but that’s understandable: it was also directed by Tresnjak and designed by Dodge.

It is incumbent upon directors to produce a script according to the approved version by the playwright, yet it is also incumbent upon them to create their production anew, through their own conception, their cast and their design, to name but a few key elements. Now to be fair, there’s a blurry line when it comes to iconic shows, often musicals. Productions of A Chorus Line rarely stray far from the original, particularly Theoni V. Aldredge’s costumes, and as an avowed Sweeney Todd fan, every production I saw for years was in some way an homage to the Hal Prince directed original, and to Eugene Lee’s scenic design, until John Doyle broke the mold with his Watermill production that eventually came to Broadway.

But unless both Joe Russo and Alexander Dodge either have vivid personal memories of the original 1950 Broadway production of BB&C and/or they both lifted their ideas from photos of George Jenkins’s original Broadway designs (which likely were only photographed in black and white), it’s pretty safe to say that Russo took “his” design ideas from Dodge, without permission. That’s not an homage, that’s copying.

Given the online conversation over the past 11 hours, word of concern has reached Joseph Russo and Theatreworks. At 10:30 this morning, the following was posted to Theatreworks’ public Facebook page:

Dear friends of TheatreWorks: we’ve been receiving several comments on Facebook and in a recent review by OnStage Critics Circle, that our production design for “Bell, Book & Candle” was inspired by The Hartford Stage production of 2012. This is correct, and the oversight to credit director Darko Tresnjak and designer Alexander Dodge occurred in our rush to open the show last weekend. We are crediting both Mr. Dodge and Mr. Tresnjak in our program, on our website, and any other communications involving the production. We thank you for your kind attention to this, and we apologize for any misunderstanding. What’s more, we appreciate you raising this issue with us and for supporting TheatreWorks New Milford.

This statement misses the point entirely. It’s not that Tresnjak and Dodge should have been credited – their work should never have been taken in the first place. That Russo acknowledges the debt his production owes to the Long Wharf/Hartford Stage original confirms exactly how he came by his directorial and design concept, but his statement neither excuses or resolves the issue. I suspect unions have already been contacted by the artists involved in the source production.

Chronicling this incident is not meant to demonize TheatreWorks, who are at least in the process of owning up to what they’ve done. They still must go farther than their statement, which glosses over the issue and ignores the essential problem. How Tresnjak and Dodge choose to settle this issue remains to be seen, and they deserve satisfaction for any claims that may be forthcoming; that their original work was done at major theatres, and the copying was at a small one, should be irrelevant to the conversation. TheatreWorks has hopefully learned an important lesson, and through them, perhaps others will as well.

This does provide an excellent example about respect for every creative element in every production, and while examples don’t often come to light, there has been litigation over the appropriation of key elements from Urinetown (the original Broadway production) by another company, to name a prominent precedent, demonstrating that this practice is not confined to small, quasi-professional companies, but to professional productions as well.

To those who have expressed to me in recent weeks their concern that in directing productions they don’t want to be hamstrung by excessive faithfulness to published scripts, and therefore original productions, this is a perfect example of why doing so isn’t in anyone’s best interests. Respecting an author’s intent is not the same as creating a Xerox copy – or a 19th generation copy – of the original or another notable production. It’s about how does every director and their team at every level – academic, amateur and professional – imagine a play anew without subverting the playwright’s wishes (unless permission is granted to do so), making their own discoveries along the way.

Update, December 9, 2:30 pm:The Facebook post from TheatreWorks referred to above was online as of 11:30 am as this post was being prepared, but was subsequently removed. However, the same post still appears, for the time being, in the comments section of a review of the production on the Facebook page of the online On Stage magazine.

Update, December 9, 8 pm: Earlier today, several hours after this piece was first posted, I spoke briefly with Darko Tresnjak, who I know casually. He spoke of being “freaked out” at discovering the remarkable similarities between his production of Bell, Book and Candle and the nearby production in New Milford. Tresnjak noted that it had come on the heels of discovering that a Swedish production of A Gentleman’s Guide To Love And Murder (Tresnjak won a Tony for directing the Broadway production) had copied Linda Cho’s costume designs, noting they replicated specifics which were in no way indicated in the text and must have been gleaned from photos and videos online. He also described to me particular choices he had made with his designers on BB&C, which were quite distinct from the show’s original Broadway production and in no way indicated in the printed script.

“I don’t want to be petty, but I’m upset,” said Tresnjak. He said he was speaking out because, “It’s just not right. If you let it happen, it will happen.”

Update, December 10, 9 am: TheatreWorks has canceled performances of Bell, Book and Candle until further notice. It was announced on their Facebook page at midnight.

Correction: An earlier version of this post misidentified the designer of the original production of Sweeney Todd. It now appears correctly in the text.

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