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

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

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

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

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

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

The Play

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

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

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

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

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

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

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

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

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

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

Mr. Franco Has No Viable Trademark-Infringement Claim

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

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

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

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

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

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

Footnotes

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

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

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

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

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

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

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

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

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

It is unlikely that many people in the theatre are unaware of the controversy that arose in mid-May, when a small Portland, Oregon theatre company proposed a production of Edward Albee’s Who’s Afraid of Virginia Woolf? with a black actor in the role of Nick. Outcry built swiftly after Michael Streeter of the Shoebox Theatre posted the following message to Facebook:

“I am furious and dumbfounded. The Edward Albee Estate needs to join the 21st Century. I cast a black actor in Who’s Afraid of Virginia Woolf? The Albee Estate called and said I need to fire the black actor and replace him with a white one. I refused, of course. They have withheld the rights.”

This touched off a tidal wave of conversation, debate and anger over the actions of the Albee estate, with many decrying the late playwright, who had been well known to exert significant control over all productions of his plays during his lifetime, as racist. That charge was leveled at the representatives of the estate as well, since they were sustaining what were understood to be Albee’s wishes.

So it was rather surprising when, just a couple of weeks ago, the Pulse Theatre Chicago opened their own production of Virginia Woolf, with black actors as George and Martha and white actors as Nick and Honey. This seemed to contradict the prevailing takeaway from the Shoebox controversy.

Upon learning of the production via a review by Kerry Reid in The Chicago Tribune, Arts Integrity contacted Sam Rudy, the spokesman for the Albee estate, to ask about how this production had been allowed to go forward when the Shoebox production had not been able to, unless they had recast with a white actor as Nick.

In response, Rudy shared a statement from Jonathan Lomma of WME, Albee’s agent and now agent for the estate. It read:

“Regarding your inquiry, the Albee Estate gave Chicago’s Pulse Theatre Edward’s own script edits that the playwright thought could be useful when George and Martha are portrayed by actors of color, as they are in the current Chicago production.

Those approved edits by Edward himself were used in an all African-American production of Woolf at Howard University several years ago.

While it has been established that non-Caucasian actors in different combinations have played all the roles in the play at various times with Edward’s approval, he was consistently wary of directors attempting to use his work to provide their own commentary by, for instance, casting only Nick as non-white, which essentially transforms George and Martha into older white racists, which is not what Edward’s play is about.”

The edits suggested  by Albee primarily consist of a word or short phrase, 13 in all, mostly adjusting references to hair and eye color. The most significant change is a brief section in the Act 2 “begin and water” monologue.

In conversation, Lomma drew attention to a particular speech of George’s, which Albee felt was completely transformed, in a profoundly negative way, were it to be spoken by an older white man to a younger black man:

“All imbalances will be corrected, sifted out…  We will have a race of men…test-tube bred…incubator born…superb and sublime…  Everyone will tend to be rather the same…  Alike.  Everyone…and I’m sure I’m not wrong here…will tend to look like this young man here… I suspect we will not have much music, much painting, but we will have a civilization of men, smooth, blond and right at the light-heavyweight limit…  diversity will no longer be the goal.  Cultures and races will eventually vanish…the ants will take over the world….  And I am, naturally, rather opposed to all this.”

The Zachary Scott Theatre Center production of Edward Albee’s “Who’s Afraid of Virginia Woolf?”

The Howard University Virginia Woolf

As Lomma noted, there had been productions of Virginia Woolf cast with black actors during Albee’s lifetime. When the Shoebox controversy arose, many people pointed to a production at the Oregon Shakespeare Festival in 2002 in which Andrea Frye, a black actress, played Martha with white actors in the others role. Less noted was a 2003 production at the Zachary Scott Theatre Center in Austin, again with a black actress, Franchelle Stewart Dorn, as Martha in an otherwise white ensemble.

While in May the estate was not able to provide much detail about these productions, a college production at Howard University, while mentioned in passing at the time and cited in Lomma’s statement, is evidence that Albee was not doctrinaire about race in the play.

Vera Katz, the first white theatre professor at the historically black Howard University, planned a production of Virginia Woolf as her final show before retiring in 2001. She reached out to Albee and he visited the show while it was in rehearsals, and offered suggested changes to the text that would make minor changes appropriate for an all-black production.

In June of this year, Michon Boston wrote on her Eclectique 916 site about the Howard University production, which she said was the first time she had seen the play staged. She reached out to Vera Katz to ask about Katz’s experience of producing the play, given the controversy that had just flared.

She received the following response from Katz, which Boston said Katz specifically asked her to share:

“My delay to responding to this debate is because my husband is critically ill.

In 2001, I had the audacity to contact Mr. Albee by writing him a letter in long hand and sending it through his agent. What I asked Mr. Albee in the letter was to adjust two specific changes to his play, “Who’s Afraid of Virginia Woolf” for a performance by an African American student cast at Howard University.

These changes were:
1) The mysterious baby we never see referred to as a “blond blue-eyed child”;
2) The university names in which George has lectured and taught.

My husband said “You’ll never hear from him.”

To my surprise, Edward Albee responded by calling me. He immediately agreed to discuss the changes asking me to get my script and reviewed them with me over the phone. The “blue-eyed” child became “the dark dusky child”, and the university names became HBCUs – Howard, Fisk, Wilberforce, etc.

Mr. Albee expressed his desire to visit Howard and talk with the young actors. When he arrived he insisted on shaking every actor’s hand and gave a brilliant lecture about the play.

He was extremely interested in a tour of the campus. During the tour he was very knowledgeable of persons the dormitories and buildings were named for — Mary McLeod Bethune, Dr. Charles Drew, Frederick Douglass, Harriet Tubman, and Ira Aldridge. For me, he seemed to want to expand his awareness of the Black experience during this visit.

Albee stood for a long time in front of a portrait of Ira Aldridge (actor). He talked about the importance of Ira Aldridge to the theater.

Mr. Albee said he was unable to attend the performance of “Who’s Afraid of Virginia Woolf” because his play “The Goat or Who Is Sylvia?” was in production.

We thanked him by mentioning his visit in the program at Howard and sent him a copy (of the program).

Boston concluded her post by noting that Katz was working on a book in which she would go into more detail about her interactions with Albee and the Howard University Virginia Woolf.

Kate Robison and Adam Zaininger as Nick and Honey in Edward Albee’s “Who’s Afraid of Virginia Woolf?” at Pulse Theatre Chicago (photo by Joe Mazza)

Professional vs. Non-Professional Productions

Following a phone conversation earlier this week with Arts Integrity, Chris Jackson, Producing Artistic Director of the Pulse Theatre Chicago and director of their Virginia Woolf, shared a statement explaining how they secured the rights for the show, having already explained that the company had no difficulty with its plans. He wrote:

“Pulse Theatre Chicago is a 501 (c)(3) non for profit, non-equity professional theatre company. We rent spaces across the city when we decide to mount each production. We do not have an artistic home and we work on a very low budget, mostly out of pocket. All of our artists are paid a small stipend after the run of the show. Because of those factors, Dramatist [Dramatists Play Service] informed us that we only qualify to the non-professional rights to the production, which in regards to casting, only requires that the gender of the characters may not be changed from the intended.

“To my knowledge, the estate only had an issue with the interracial casting of the couple of Nick and Honey, which is understandable because in my opinion that casting choice disrupts the central theme of The American Dream being unachievable. I don’t think the estate is complete restrictive of actors of color being cast in Albee plays. If they were, we wouldn’t be talking! As far as I know, the estate approved our production. The only communication I have received from the estate about this production specifically came from them through Dramatist. They sent, opening night, the revisions that Albee made for the Howard University production of the show.”

In conversation, Jackson noted that he had secured rights to Virginia Woolf more than a year ago, while Albee was still alive.

As it happens, the licensing rights for Virginia Woolf are slightly complicated, compared to many plays. Dramatists Play Service handles the non-professional rights, while Samuel French handles professional rights, resulting in part from the fact the DPS didn’t begin handling professional rights until the early 1980s. Lomma continues to handle “first class rights,” which include Broadway, national tours and the West End.

So while Pulse is a professional non-Equity company, for the definitions that exist between DPS and French, their production was deemed non-professional. While Shoebox is comparably small, they appear to have been defined as professional for the purposes of licensing.

Following a conversation with Arts Integrity, and responding to questions about the process of licensing Albee’s work, Peter Hagan, President of DPS, sent the following e-mail:

“Our Albee nonprofessional licenses essentially mirror our boilerplate licenses for our other plays.  The language simply says – as our other licenses do – that the play must be performed as written by the author, with no changes, etc.  As you know, Mr. Albee was very specific about how casting changes could affect the authenticity of what he had written.  Our license form for the Albee plays is actually quite old – so old, in fact, that it includes Albee’s prohibition against performing the play before a segregated audience!

As I told you, we do not represent the professional rights to some of the Albee plays, including Who’s Afraid of Virginia Woolf? For all of those Albee plays for which we do represent the professional rights, there is a stipulation that the director, actors, set, costumes and rehearsal schedule must be approved by the Estate of Edward Albee before a license is granted, as was the case when Mr. Albee was alive. As you know, he took a very hands-on approach to the professional productions of all of his plays.

As for our distinction between what is considered a professional production and what is considered nonprofessional, when actors are paid $150 per week or more for their work, we consider that a professional production, whether it is Equity or non-Equity.  Samuel French has a different policy, so you should check with them about that.”

Asked about how Samuel French handles the stipulations on Albee plays that French represents, the company’s executive director Bruce Lazarus said that, for all shows they license, “On professional productions, if requested by an author, we submit any information that is requested to the author’s agent. We support a playwright’s right to approve casting to be sure it reflects their authorial intent.”

Albee famously denied all requests to allow for productions of Virginia Woolf with entirely male casts.

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Sophie Okonedo and Damian Lewis in the 2017 West End production of Edward Albee’s The Goat, or Who is Sylvia? (photo by Johann Persson)

In the wave of controversy over the Shoebox production that never was, a debate flourished over the rights of authors, and subsequently their estates, to exert control over the way in which plays are produced, beyond even the specific of Edward Albee’s requirements. It extended to the question of how long copyright protection runs and whether estates, by following the express wishes of an author too slavishly following their death, may be sustaining outdated thinking, be it in how texts are examined or how society has evolved since the play debuted.

Arts Integrity has written many times in the past in support of artists rights and the right of their estates, based in the legal protections afforded to authors in the theatre, which differs from film and television (and cases where a play may be sold for adaptation into those media). Arts Integrity also advocates for inclusive casting, and opening traditionally, and in some cases roles that were explicitly thought of as, white to performers of color.

It bears noting that Edward Albee passed away less than a year ago. While many chafed against the degree to which he controlled his works during his lifetime, and indeed may disagree with his feelings about the casting of Nick in relation to the rest of the company, it is not necessarily realistic to expect the people to whom he entrusted his estate to immediately abandon his wishes within months of his passing. That said, it is not unrealistic to imagine that the estate’s thinking will evolve, especially as current trustees of the estate will eventually give way to successors in future years, given the term of copyright.

For now, the creative elements of Albee’s plays in professional production, including directors and casts, will continue to be reviewed and approved by the agent for the estate, Lomma, and trustees of the estate, as submitted to them by DPS and French. However Lomma indicated that, save specifically for Nick in Virginia Woolf being cast as black with the others characters as white, there is no hard and fast proscription against artists of color taking on roles in the plays. Sophie Okonedo’s role in a recent West End production of The Goat, a role played on Broadway by Mercedes Ruehl and then Sally Field, is evidence that’s the case.

However, all parties represented in this article made the point of saying that the sooner producers engage in conversation about their interest in Albee’s plays, and their plans for them, the less likely it is that issues will arise.

In contrast to the impression left in May, Jonathan Lomma said, on behalf of the estate, “In Edward’s almost 30 plays, virtually all of the roles can and should be done in a diverse, color conscious fashion.”

Union Square Incident premiered on November 14, 2016 as part of The 24 Hour Plays on Broadway (Mark Armstrong, Executive Director; Tina Fallon, Founding Producer) at the American Airlines Theatre. It was directed by Elena Araoz with the following cast: Ashlie Atkinson, Jason Biggs, Michael Cerveris, Russell G. Jones, Olivia Washington and Julie White.

Warren Leight’s plays include Side Man (Tony Award), No Foreigners Beyond This Point (Drama Desk nomination), Glimmer, Glimmer and Shine (ATCA nomination).  In TV he’s been the Showrunner and Executive Producer of Law and Order: SVU (Imagen, NAACP, and Prism Awards), In Treatment (Peabody Award), Lights Out, and the Edgar-winning Law and Order: Criminal Intent.

Union Square Incident is copyright © 2016 by Warren Leight. All inquiries regarding rights should be addressed to John Buzzetti, WME, 11 Madison Avenue, New York NY 10010, 212-586-5100. Professionals and amateurs are hereby warned that performances of Union Square Incident are subject to a royalty. It is fully protected under the copyright laws of the United States of America, and of all countries covered by the International Copyright union (including the Dominion of Canada and the rest of the British Commonwealth), and of all countries covered by the Pan-American Copyright Convention and the Universal Copyright Convention, and of all countries with which the United States has reciprocal copyright relations. All rights, including professional, amateur, motion picture, recitation, lecturing, public reading, radio broadcasting, podcasting, television, video or sound taping, all other forms of mechanical or electronic reproductions, such as information storage and retrieval systems and photocopying, and the rights of translation into foreign languages, are strictly reserved. Particular emphasis is laid upon the question of readings, permission for which much be secured from the author’s agent in writing.

Photos © Howard Sherman

*   *   *

Jason Biggs and Ashlie Atkinson in “Union Square Incident”

Lights up on a bare room with a few benches and one door upstage left or right.  We will learn it’s a holding pen of some sort. On one bench, a black man, RUSSELL, is seated.  His pockets have been emptied and turned inside out. He has no belt or shoelaces. He’s stressed out. In a corner, rocking back and forth, ASHLIE, a Brooklyn activist, is clearly in a deep state of distress. She doesn’t even notice now as the door opens. And MICHAEL, a middle-aged, Upper West Side white male, enters. Pockets turned inside out. No belt. He tries to bargain with JASON, the bro-guard, at the door.  

Michael  If I could just have my phone, for a second.  My wife is, she’s not well.  She’s been anxious ever since the…  I need to let her know where I am.

Jason  As soon as everything’s cleared up, you can make a call.

Michael  She’ll be worried. I need to let her know where I am..

Jason  I’m sure she’ll be fine. Okay, pops. Just relax. (to Ashlie) Hey you, my twitchy friend.

Jason goes to Ashlie, who is startled by his touch.  He motions her toward the door.  She’s broken.

Jason  Guess what?

Ashlie  I give up.

Jason That’s all we wanted to hear. And now, let’s see that smile of yours, from your Avi. (He mimics her Avi smile) You are free to go.

Ashlie  Really. That’s it?

Jason  (for everyone’s benefit) I told you, if you have nothing to worry about, you have nothing to worry about.

Jason walks Ashlie out.  The door closes in Michael’s face.  He looks around.

Michael  Where am I?

Russell  I don’t know. I don’t think it’s the Tombs. Some place new they must have set up.

Michael  New place?

Russell  I thought we went over a bridge. And it feels kind of… off the grid. I imagine they want these places out of public view.

Michael  C’mon, it’s a little soon for all that to be happening. Don’t you think.

Russell  They knew they were going to win. They must have had it in the works.

Michael  You know, no offense, you sound a little…  paranoid.

Russell  Okay, so what do you think is going on? We’re like, being punked for a Prank TV show.

Michael  I don’t think we’re under arrest.

Russell  Not officially. They’re supposed to tell you if you’re under arrest. They tell you anything?

Michael  I was marching. Up from Union Square. They said everyone move to the sidewalk. I tried to move, but it was crowded, before I could get there, these two guys grabbed me –

Russell  Were they in uniform?

Michael  No. Suits.

Russell  Could be FBI? Or some bullshit Task Force.

Michael  They put me in a van. Then here. They took my wallet. My cell phone.

Russell  Did you shut it down first?

Michael  No.  I mean, he asked for my cell — he said it was protocol.

Russell  You got to shut it down. And have a strong password — they’re probably putting your photos through facial recognition.

Michael  It’s mostly just pictures of my kids.

Russell  Also going through your emails, your social media, your texts. And every place you’ve been is geo-tagged. Unless you’ve been using a Tor browser, or a two-factor authentication on –

Michael  My wife and I share an AOL account. I don’t think we ever set that –

Russell  AOL? Nah… I don’t think you did.

Michael  Anyway, they can’t go through the email… not without a warrant.

Russell  I wish I had a pen right now. I keep a little list. I call it “funny shit white people say.”

Michael Cerveris, Russell G. Jones and Julie White in “Union Square Incident”

The door opens again. JULIE walks in. A very angry, put-together middle-aged white woman. She has no purse; if wearing pants, her pockets are turned inside out. No jewelry. Except for a Hillary button. She’s going at it, with Jason, who’s annoying the fuck out of her.

Julie  You can’t actually do this, you know. You can’t detain people without –

Jason  Ma’am, instead of being all upset, just try to relax –

Julie  Relax. Relax and enjoy it? You can’t do this!! I am a lawyer. I know my rights.

Jason  No one is violating anyone’s rights. You’re not being detained.

Julie  So I’m free to leave?

Jason  Just as soon as everything is cleared up. Are we good.

Julie  NO, bro, we’re not good. And if you can’t talk to me, without patronizing me, I’d rather you not talk to me at all.

Jason  Suit yourself. Have a nice day.

He closes the door on her. She looks around.

Julie  That little pissant son of a bitch. “You’re not being detained.” He just lied straight to my face.

Russell  If nothing else, they have turned that into an art form.

Russell gets up, as Michael helps Julie to a bench.

Julie  This really is completely illegal.

Michael  You’re a lawyer?

Julie  What are you?

Michael  An aging liberal.

Russell  With an AOL account.

Julie  Ha! You two were marching?

Russell  I saw them taking this girl down. In her twenties. I started to video it –

Julie  Which is perfectly legal.

Russell  For now. And… I end up here. I don’t know what happened to the girl.

Julie  These motherfuckers…  “Don’t worry, he doesn’t mean those things he’s saying. It’s just to get elected. There’ll be checks and balances. It can’t happen here. It won’t happen here.”

Michael  Guys, take it easy, nothing is happening here, with all due respect –

Julie  Don’t fucking say that.  Anytime any man anywhere says all due respect, it means he has absolutely no respect for you, or for that matter, any woman.

Michael  You’re sounding a little hys — (catches himself)

Julie  Hysterical. Go ahead, say it. Go on.

Michael looks to Russell, hoping for what, male support?

Russell  Don’t look at me. I’m with her.

Julie  Do you know what this year has told me. I don’t matter. The only reason a woman ever matters is her vagina, and now that mine’s too old and He doesn’t want to grab it, it’s okay for me to be marginalized or discarded or vilified. Even by other women.

She breaks down.  Russell awkwardly comforts her.

Michael  I’m sorry. I wasn’t trying to negate –

Russell  Give her a moment.

Julie  No… tell me. What weren’t you trying to negate?

Michael  Your feelings.  It’s just… we’re all feeling raw.  But, I have to believe things aren’t going to be as bad as everyone says. It’s easy to demonize the other side. To assume the worst. If we could try to understand where they are coming from –

Russell  Oh I know where they’re coming from. The KKK, the FBI, the KGB — this wasn’t an election, it was a coup d’etat.

Michael  No… it was an election. We lost. They won.

Julie  First of all, they didn’t win. Second of all, they rigged it.

Michael  Now who do you sound like? It’s not rigged. He tapped into something.

Russell  American Homegrown Racism, brewed to perfection.

Michael  Yeah, some of that. And some genuine anger, and frustration. And — let’s be fair. She had a lot of baggage.

Julie  Don’t you dare. Do not start with that false equivalence bullshit. He’s a draft dodgin’, tax dodging, climate-change-denying racist misogynist, who will deport your family and potentially destroy the world, or at least all civil liberties, but — hey, how about those emails.

Michael  It wasn’t just the emails. Or the KGB or misogyny or racism or even her not having a message. It was a perfect storm.

Julie White in “Union Square Incident”

The door opens again. And now OLIVIA, a young black woman enters. She’s a mess, she’s been crying. She’s bruised, clothes a little ripped. 

Jason  Here we go. Nice and easy.

Olivia  I want to see him. Why can’t I see him.

Jason  Why don’t you just sit down. Let your friends here take care of you. (to the rest) Folks. This young lady’s had a bit of a hard day. Can you make some room for her.

Olivia all but collapses into Michael and Russell’s arms. They walk her down to the bench. Julie helps hold her there. She’s in some kind of shock.

Olivia  They must have shot him. He might be dead.

Michael  No one’s been shot. That’s not going on –

Russell and Julie glare at him.

Julie  Do any of us have any  idea what’s going on? (off  Michael) I don’t think so. So how about we ask her what happened to her, instead of telling her?

Michael  (chastened) What… happened?

Olivia  They were putting some people in these pens. You know, with the metal rails. And my boyfriend, he noticed two of them weren’t on right, so he worked them apart. We squeezed through, and ran. Down the block, and right into this group of, I don’t know, counter-protesters. I guess. They came like, out of nowhere.

Russell  (sotto) Or not.

Olivia  They saw us, started chanting all kinds of names. By then the Security People were behind us, but instead of stopping them, they let the mob beat on him, and pull on me. Grabbing at me, everywhere. Finally one of the Security says, that’s enough, fellas. And they stop. Part like the Red Sea. Security took my boyfriend away, he was bleeding bad from the head.

Julie  I’m so sorry.

Olivia  We weren’t even marching. Just came up out of the subway at Union Square and it was on. I tried to tell them that, but –

Russell  It doesn’t matter. Wrong race, wrong place, wrong time.

Michael  I can’t believe this  — it can’t be — this isn’t happening. Not in New York. New York is different. You heard the Governor, he said it would be a sanctuary.

Russell  And you think the new regime is just gonna be ok with that.

Michael  Yeah. I do. I know my city, I know my county.

Julie  So we’re all paranoid, and it’s just a little swing of the pendulum. And nobody’s rights are going to be taken away…

The door opens.  Jason comes in, with a big smile on his face.  He has a RED BAG for Julie.  A TIE for Michael.  Cell phones, belts for Michael and Russell. 

Jason  Okay. That didn’t take so long did it.

He hands Julie, Michael, and Russell some of their possessions back. 

Michael  We’re okay to go?

Jason  Like I said, if you have nothing to worry about, you have nothing to worry about. Sorry for the inconvenience. What we’re dealing with, there are a lot of moving parts. But cut to the chase, there’s no reason to detain you any longer.

Julie  You said we weren’t being detained.

Jason  (almost laughing) Are you sure I said that? Either way, it’s in the past. Right?

Russell  (looks at cell phone) My photos have been removed.

Jason  Oh have they. I’m sorry about that. It must have bounced around a bit.

Julie (checking bag) I had a cell phone, where is it.

Jason  If it turns up, we know where you live. Anyway, I know you all don’t want to be here any longer than you have to, so let’s not worry about the little losses, okay.

The four look at each other. 

Michael  Guys…

Russell  Fuck it, let’s go. (Russell looks to Olivia, who may be in shock. He goes to help her up.) C’mon, sweetheart, the door’s open.

Jason  Actually. Not so fast there. Right now, it’s open for you three.

Russell  You said we were all free to go.

Jason  Did I say all? I don’t think I said all. She’s had a rough day, we just want to make sure we know, and she knows what’s what before she goes home. Nothing bad’s going to happen.

Julie  But she will be going home.

Jason  Everyone’s a winner here. So many winners. Believe me. Eyes on the prize everyone. (to Michael) I know you want to call your wife, she must be worried sick.

Jason leads, Michael starts to follow.  Then Jason notices Russell and Julie are looking at each other.

Jason  Folks, operators are standing by. Make your move.

Russell  I believe I’ll sit awhile. Keep this young lady company.

Julie now turns, goes back to Olivia as well.

Julie  I’ll stay too. You said it’s just a little while. So, why not.

Jason  To be honest, there’s no way of knowing how long this is all going to last.

Julie  (sharp) No there isn’t, is there?

Jason, whose tone has been jocular throughout, suddenly turns full-bore threatening.

Jason  Are you people kidding me. You’ve done nothing but bitch and complain since you got here. Now I hold the door open for you, and you pull this crap. For this friggin whore.

Julie  You won. You people fucking won. Why are you still so angry?

Jason  What you said before, about being marginalized, discarded, you got that right.

Julie and Russell realize they’ve been recorded.  They glance around for cameras.

Jason  C’mon pops, you don’t need these losers.

Michael  Actually, I might as well wait too.

Jason Are you FUCKING kidding me, you stupid cuck. We’re not playing around here. This isn’t a feel good after-school special.

Michael  I think we get that.

Russell  But this young lady, she’s frightened, so for now, we’ll just stay with her.

Jason  This could take a lot longer than you realize.

Julie  No, we know. So… until it ends, we’re just going to be here for each other.

LIGHTS OUT.

Union Square Incident premiered on November 14, 2016 as part of The 24 Hour Plays on Broadway (Mark Armstrong, Executive Director; Tina Fallon, Founding Producer) at the American Airlines Theatre. It was directed by Elena Araoz with the following cast: Ashlie Atkinson, Jason Biggs, Michael Cerveris, Russell G. Jones, Olivia Washington and Julie White.

Warren Leight’s plays include Side Man (Tony Award), No Foreigners Beyond This Point (Drama Desk nomination), Glimmer, Glimmer and Shine (ATCA nomination).  In TV he’s been the Showrunner and Executive Producer of Law and Order: SVU (Imagen, NAACP, and Prism Awards), In Treatment (Peabody Award), Lights Out, and the Edgar-winning Law and Order: Criminal Intent.

Union Square Incident is copyright © 2016 by Warren Leight. All inquiries regarding rights should be addressed to John Buzzetti, WME, 11 Madison Avenue, New York NY 10010, 212-586-5100. Professionals and amateurs are hereby warned that performances of Union Square Incident are subject to a royalty. It is fully protected under the copyright laws of the United States of America, and of all countries covered by the International Copyright union (including the Dominion of Canada and the rest of the British Commonwealth), and of all countries covered by the Pan-American Copyright Convention and the Universal Copyright Convention, and of all countries with which the United States has reciprocal copyright relations. All rights, including professional, amateur, motion picture, recitation, lecturing, public reading, radio broadcasting, podcasting, television, video or sound taping, all other forms of mechanical or electronic reproductions, such as information storage and retrieval systems and photocopying, and the rights of translation into foreign languages, are strictly reserved. Particular emphasis is laid upon the question of readings, permission for which much be secured from the author’s agent in writing.

Photos © Howard Sherman

*   *   *

Jason Biggs and Ashlie Atkinson in “Union Square Incident”

Lights up on a bare room with a few benches and one door upstage left or right.  We will learn it’s a holding pen of some sort. On one bench, a black man, RUSSELL, is seated.  His pockets have been emptied and turned inside out. He has no belt or shoelaces. He’s stressed out. In a corner, rocking back and forth, ASHLIE, a Brooklyn activist, is clearly in a deep state of distress. She doesn’t even notice now as the door opens. And MICHAEL, a middle-aged, Upper West Side white male, enters. Pockets turned inside out. No belt. He tries to bargain with JASON, the bro-guard, at the door.  

Michael  If I could just have my phone, for a second.  My wife is, she’s not well.  She’s been anxious ever since the…  I need to let her know where I am.

Jason  As soon as everything’s cleared up, you can make a call.

Michael  She’ll be worried. I need to let her know where I am..

Jason  I’m sure she’ll be fine. Okay, pops. Just relax. (to Ashlie) Hey you, my twitchy friend.

Jason goes to Ashlie, who is startled by his touch.  He motions her toward the door.  She’s broken.

Jason  Guess what?

Ashlie  I give up.

Jason That’s all we wanted to hear. And now, let’s see that smile of yours, from your Avi. (He mimics her Avi smile) You are free to go.

Ashlie  Really. That’s it?

Jason  (for everyone’s benefit) I told you, if you have nothing to worry about, you have nothing to worry about.

Jason walks Ashlie out.  The door closes in Michael’s face.  He looks around.

Michael  Where am I?

Russell  I don’t know. I don’t think it’s the Tombs. Some place new they must have set up.

Michael  New place?

Russell  I thought we went over a bridge. And it feels kind of… off the grid. I imagine they want these places out of public view.

Michael  C’mon, it’s a little soon for all that to be happening. Don’t you think.

Russell  They knew they were going to win. They must have had it in the works.

Michael  You know, no offense, you sound a little…  paranoid.

Russell  Okay, so what do you think is going on? We’re like, being punked for a Prank TV show.

Michael  I don’t think we’re under arrest.

Russell  Not officially. They’re supposed to tell you if you’re under arrest. They tell you anything?

Michael  I was marching. Up from Union Square. They said everyone move to the sidewalk. I tried to move, but it was crowded, before I could get there, these two guys grabbed me –

Russell  Were they in uniform?

Michael  No. Suits.

Russell  Could be FBI? Or some bullshit Task Force.

Michael  They put me in a van. Then here. They took my wallet. My cell phone.

Russell  Did you shut it down first?

Michael  No.  I mean, he asked for my cell — he said it was protocol.

Russell  You got to shut it down. And have a strong password — they’re probably putting your photos through facial recognition.

Michael  It’s mostly just pictures of my kids.

Russell  Also going through your emails, your social media, your texts. And every place you’ve been is geo-tagged. Unless you’ve been using a Tor browser, or a two-factor authentication on –

Michael  My wife and I share an AOL account. I don’t think we ever set that –

Russell  AOL? Nah… I don’t think you did.

Michael  Anyway, they can’t go through the email… not without a warrant.

Russell  I wish I had a pen right now. I keep a little list. I call it “funny shit white people say.”

Michael Cerveris, Russell G. Jones and Julie White in “Union Square Incident”

The door opens again. JULIE walks in. A very angry, put-together middle-aged white woman. She has no purse; if wearing pants, her pockets are turned inside out. No jewelry. Except for a Hillary button. She’s going at it, with Jason, who’s annoying the fuck out of her.

Julie  You can’t actually do this, you know. You can’t detain people without –

Jason  Ma’am, instead of being all upset, just try to relax –

Julie  Relax. Relax and enjoy it? You can’t do this!! I am a lawyer. I know my rights.

Jason  No one is violating anyone’s rights. You’re not being detained.

Julie  So I’m free to leave?

Jason  Just as soon as everything is cleared up. Are we good.

Julie  NO, bro, we’re not good. And if you can’t talk to me, without patronizing me, I’d rather you not talk to me at all.

Jason  Suit yourself. Have a nice day.

He closes the door on her. She looks around.

Julie  That little pissant son of a bitch. “You’re not being detained.” He just lied straight to my face.

Russell  If nothing else, they have turned that into an art form.

Russell gets up, as Michael helps Julie to a bench.

Julie  This really is completely illegal.

Michael  You’re a lawyer?

Julie  What are you?

Michael  An aging liberal.

Russell  With an AOL account.

Julie  Ha! You two were marching?

Russell  I saw them taking this girl down. In her twenties. I started to video it –

Julie  Which is perfectly legal.

Russell  For now. And… I end up here. I don’t know what happened to the girl.

Julie  These motherfuckers…  “Don’t worry, he doesn’t mean those things he’s saying. It’s just to get elected. There’ll be checks and balances. It can’t happen here. It won’t happen here.”

Michael  Guys, take it easy, nothing is happening here, with all due respect –

Julie  Don’t fucking say that.  Anytime any man anywhere says all due respect, it means he has absolutely no respect for you, or for that matter, any woman.

Michael  You’re sounding a little hys — (catches himself)

Julie  Hysterical. Go ahead, say it. Go on.

Michael looks to Russell, hoping for what, male support?

Russell  Don’t look at me. I’m with her.

Julie  Do you know what this year has told me. I don’t matter. The only reason a woman ever matters is her vagina, and now that mine’s too old and He doesn’t want to grab it, it’s okay for me to be marginalized or discarded or vilified. Even by other women.

She breaks down.  Russell awkwardly comforts her.

Michael  I’m sorry. I wasn’t trying to negate –

Russell  Give her a moment.

Julie  No… tell me. What weren’t you trying to negate?

Michael  Your feelings.  It’s just… we’re all feeling raw.  But, I have to believe things aren’t going to be as bad as everyone says. It’s easy to demonize the other side. To assume the worst. If we could try to understand where they are coming from –

Russell  Oh I know where they’re coming from. The KKK, the FBI, the KGB — this wasn’t an election, it was a coup d’etat.

Michael  No… it was an election. We lost. They won.

Julie  First of all, they didn’t win. Second of all, they rigged it.

Michael  Now who do you sound like? It’s not rigged. He tapped into something.

Russell  American Homegrown Racism, brewed to perfection.

Michael  Yeah, some of that. And some genuine anger, and frustration. And — let’s be fair. She had a lot of baggage.

Julie  Don’t you dare. Do not start with that false equivalence bullshit. He’s a draft dodgin’, tax dodging, climate-change-denying racist misogynist, who will deport your family and potentially destroy the world, or at least all civil liberties, but — hey, how about those emails.

Michael  It wasn’t just the emails. Or the KGB or misogyny or racism or even her not having a message. It was a perfect storm.

Julie White in “Union Square Incident”

The door opens again. And now OLIVIA, a young black woman enters. She’s a mess, she’s been crying. She’s bruised, clothes a little ripped. 

Jason  Here we go. Nice and easy.

Olivia  I want to see him. Why can’t I see him.

Jason  Why don’t you just sit down. Let your friends here take care of you. (to the rest) Folks. This young lady’s had a bit of a hard day. Can you make some room for her.

Olivia all but collapses into Michael and Russell’s arms. They walk her down to the bench. Julie helps hold her there. She’s in some kind of shock.

Olivia  They must have shot him. He might be dead.

Michael  No one’s been shot. That’s not going on –

Russell and Julie glare at him.

Julie  Do any of us have any  idea what’s going on? (off  Michael) I don’t think so. So how about we ask her what happened to her, instead of telling her?

Michael  (chastened) What… happened?

Olivia  They were putting some people in these pens. You know, with the metal rails. And my boyfriend, he noticed two of them weren’t on right, so he worked them apart. We squeezed through, and ran. Down the block, and right into this group of, I don’t know, counter-protesters. I guess. They came like, out of nowhere.

Russell  (sotto) Or not.

Olivia  They saw us, started chanting all kinds of names. By then the Security People were behind us, but instead of stopping them, they let the mob beat on him, and pull on me. Grabbing at me, everywhere. Finally one of the Security says, that’s enough, fellas. And they stop. Part like the Red Sea. Security took my boyfriend away, he was bleeding bad from the head.

Julie  I’m so sorry.

Olivia  We weren’t even marching. Just came up out of the subway at Union Square and it was on. I tried to tell them that, but –

Russell  It doesn’t matter. Wrong race, wrong place, wrong time.

Michael  I can’t believe this  — it can’t be — this isn’t happening. Not in New York. New York is different. You heard the Governor, he said it would be a sanctuary.

Russell  And you think the new regime is just gonna be ok with that.

Michael  Yeah. I do. I know my city, I know my county.

Julie  So we’re all paranoid, and it’s just a little swing of the pendulum. And nobody’s rights are going to be taken away…

The door opens.  Jason comes in, with a big smile on his face.  He has a RED BAG for Julie.  A TIE for Michael.  Cell phones, belts for Michael and Russell. 

Jason  Okay. That didn’t take so long did it.

He hands Julie, Michael, and Russell some of their possessions back. 

Michael  We’re okay to go?

Jason  Like I said, if you have nothing to worry about, you have nothing to worry about. Sorry for the inconvenience. What we’re dealing with, there are a lot of moving parts. But cut to the chase, there’s no reason to detain you any longer.

Julie  You said we weren’t being detained.

Jason  (almost laughing) Are you sure I said that? Either way, it’s in the past. Right?

Russell  (looks at cell phone) My photos have been removed.

Jason  Oh have they. I’m sorry about that. It must have bounced around a bit.

Julie (checking bag) I had a cell phone, where is it.

Jason  If it turns up, we know where you live. Anyway, I know you all don’t want to be here any longer than you have to, so let’s not worry about the little losses, okay.

The four look at each other. 

Michael  Guys…

Russell  Fuck it, let’s go. (Russell looks to Olivia, who may be in shock. He goes to help her up.) C’mon, sweetheart, the door’s open.

Jason  Actually. Not so fast there. Right now, it’s open for you three.

Russell  You said we were all free to go.

Jason  Did I say all? I don’t think I said all. She’s had a rough day, we just want to make sure we know, and she knows what’s what before she goes home. Nothing bad’s going to happen.

Julie  But she will be going home.

Jason  Everyone’s a winner here. So many winners. Believe me. Eyes on the prize everyone. (to Michael) I know you want to call your wife, she must be worried sick.

Jason leads, Michael starts to follow.  Then Jason notices Russell and Julie are looking at each other.

Jason  Folks, operators are standing by. Make your move.

Russell  I believe I’ll sit awhile. Keep this young lady company.

Julie now turns, goes back to Olivia as well.

Julie  I’ll stay too. You said it’s just a little while. So, why not.

Jason  To be honest, there’s no way of knowing how long this is all going to last.

Julie  (sharp) No there isn’t, is there?

Jason, whose tone has been jocular throughout, suddenly turns full-bore threatening.

Jason  Are you people kidding me. You’ve done nothing but bitch and complain since you got here. Now I hold the door open for you, and you pull this crap. For this friggin whore.

Julie  You won. You people fucking won. Why are you still so angry?

Jason  What you said before, about being marginalized, discarded, you got that right.

Julie and Russell realize they’ve been recorded.  They glance around for cameras.

Jason  C’mon pops, you don’t need these losers.

Michael  Actually, I might as well wait too.

Jason Are you FUCKING kidding me, you stupid cuck. We’re not playing around here. This isn’t a feel good after-school special.

Michael  I think we get that.

Russell  But this young lady, she’s frightened, so for now, we’ll just stay with her.

Jason  This could take a lot longer than you realize.

Julie  No, we know. So… until it ends, we’re just going to be here for each other.

LIGHTS OUT.

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.

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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.

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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.”

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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.

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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.

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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.