Friday, March 03, 2006

Presentation: Copyright and Stage Direction

First of all, let me preface this by saying that I have no background (or particular interest) in theater, so I would appreciate any and all suggestions/criticisms that relate to my current lack of understanding of the theater industry.

I am writing about a copyright case recently filed in the Southern District of New York (for more information see here). The case involves a director of an off-Broadway play who alleges that he contributed original stage directions to the play that were later used in the performance after he was fired by the producer. The director is now suing, claiming that he has a copyright interest in his contributions to the work.

This case presents two issues: (1) should a director have a copyright interest in non-literal expression such as stage directions that are contributed to a dramatic work and (2) if so, how do we characterize the director’s copyright interest in the contributed material? Although this problem is rather unique in that it does not arise in the television or film industries since directors, performers, etc. are employees subject to the works-made-for-hire doctrine (the studio owns all of the copyrightable contributions of the directors, cinematographers, etc.), the problem may arise in other contexts where a freelancer contributes copyrightable expression to another work without a contractual understanding between the parties.

With respect to the first issue, there is some support in the case law recognizing that a director’s non-literal expression may be protected under copyright law. See, e.g., Kalem Co. v. Harper Bros., 222 U.S. 55, 61 (1911) (“[D]rama may be achieved by action as well as by speech. Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of a word.”). Therefore, if the director contributes some form of original expression that goes beyond the written words of the play and if such expression is “fixed in a tangible medium of expression” either through written notations or video, it is possible (and appropriate) to recognize a copyright interest in the director’s contributions.

The real problem then is determining how to categorize the director’s copyright interest in stage directions. Copyright law currently recognizes joint authorship, but joint authorship only exists if the parties both have an intention to create a joint work. It is unlikely that the playwright in this case would have intended to create a joint work. In addition, the director’s copyright interest could be classified as a derivative work (or adaptation of the original), giving the director an independent interest in the stage directions themselves. However, in order to create a derivative work, the author of the underlying work (the playwright in this case) must give permission—either express or implied—to the author of the derivative work. Here again, there probably is little evidence to suggest that the playwright authorized the director to create a derivative work.

Therefore, I propose a contractual solution to the problem as is currently used in many other collaborative situations. The director could negotiate for some sort of derivative work or transfer his interest in the stage directions in exchange for a royalty. Although this is not currently the practice in the industry (at least with respect to directors), a greater awareness that a director may have a copyright interest in his contributions would enable directors to demand compensation for their contributions. It also gives the parties flexibility to determine the appropriate amount of compensation and the extent of the parties’ control over subsequent performances using the director’s work (even if the director is no longer associated with the production).

I would appreciate your comments or questions on any of this, but particularly:

1.) Do you think a director (or another type of freelancer) should be able to claim a copyright interest in original contributions to another work when there is no common understanding between the parties or intention to create a joint work?

2.) Do you think the contractual solution is the best solution to the problem, or do you believe another solution would be more appropriate?

3.) What problems do you see with this proposed solution?

4.) Are there other specific areas/industries where this type of problem might arise?

2 Comments:

Blogger Aaron said...

Good presentation. Do you ever foresee any problems about uneven bargaining in relation to the contractual issues? Thank You

Aaron

2:09 PM  
Blogger duffee said...

Thanks for your comment. I do think that's a very real concern and I think that is probably part of the reason we don't see any contracts that include such a provision right now.

Ideally, I would hope that this type of problem might arise in other contexts such that it would be a little more realistic to propose some sort of legislative solution such as a compulsory license. That sort of solution, however, is pretty unlikely if this problem only affects the theater.

At the very least, a broader recognition of the right might at least give directors a little more bargaining leverage in a contractual context.

8:01 PM  

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