Copyright, Creative Control, and a Toe Permit

 

By ROBERT W. BETHUNE
ART TIMESJanuary/February 2007

Those of you who live where deer are hunted are familiar with the concept of a doe permit. It’s what allows you to go out and shoot a female deer, which one normally does for the venison thereby provided. In many fields of endeavor, you can, even without knowing you’re doing it, acquire a different kind of permit. It doesn’t come on a piece of paper, and it doesn’t involve a fee paid to a state’s department of natural resources. It comes with a set of given circumstances, and it gives you a fundamental right that should never be denied to anybody.

It’s called a toe permit.

It gives you the right to shoot your own toes off, or, as it’s more commonly stated, to shoot yourself in the foot. I have observed that those who have thus successfully hunted it down and killed it usually proceed directly to the next step. Foot-in-mouth disease, they call it, and though usually not fatal, it can certainly be embarrassing.

The theater is trying to buy itself a toe permit. It’s trying to do so over a complicated and tricky issue, namely, when a director, choreographer, actor or designer creates what they create when they do what they do for a producer, can they control that work product the same way playwrights and composers and lyricists have done for many a decade? Specifically, do they have copyright in what they create? At present, there is a dispute going on between the Broadway creative time of Urinetown and theater companies in Akron and Chicago over whether their productions plagiarize the Broadway production in terms of direction, choreography and design.

This kind of dispute could very quickly turn into a toe permit for the art of the theater. One of the very few areas of American theatre practice showing something dimly resembling healthy life is the widespread practice of reviving Broadway musicals on local and regional stages. The current pissing match over Urinetown (yes, I meant to say that) is a threat to that because it strikes directly at a key element of the success of local and regional musical production: being able to sell the audience on the idea that the show they will see contains at least the key elements of the direction, choreography and design of the Broadway production that made the show famous. The local or regional audience knows about the crouching, finger-snapping choreography of West Side Story and expects to see something like that on their local or regional stage. They know about the Jewish dances from Fiddler on the Roof, and they most certainly expect to see something like them, and they most definitely expect to see Tevye and his milk cart rolling around their stage.

I could go on and on through the whole canon of American musical theater in the same fashion and with the same point. Yes, the local and regional production should be creative and original in its own right. That doesn’t change the fact that direction, choreography and design based on the Broadway production are exactly what the local and regional producer relies upon to make their production financially successful. Yes, the director, choreographer and designers of the Broadway production should have control of their own work. But no, the proper arena for working out how one may use the elements of the Broadway production that make it a desirable property for local and regional production is not the courts, and the spirit in which it needs to be conducted is not that of the Urinetown pissing match.

Local and regional producers have to be able to do their productions and attract their audiences without looking over their shoulders to find out if the lawyers are gaining on them. When a local or regional producer licenses the rights to a show, they have to know that they are getting the rights to everything they need to do a financially viable production of that show in their own market. It needs to become explicit that those rights include the rights to use the Broadway direction, choreography and design. And yes, the people who created those elements need to be paid, just as the writer, composer and lyricist presently are paid: as part of the licensing process.

Everyone involved has to recognize that the income stream from local and regional musical productions is not growing much. Yes, we should have figured out how to deal with the intellectual property of the director, designer and choreographer, to say nothing of the actors, long ago. Well, we didn’t. It is high time for Equity, the Society of Stage Directors and Choreographers, the Dramatist’s Guild, and all the other unions and professional organizations to get together and work out a system that will allow the theater to function.

The alternative is simple: we shoot our toes off. The value of the creative work done by all the above parties in the creation of a production drops to zero as soon as the industry, meaning the local and regional production companies, decides that doing a musical exposes them to more liability than they can stand and they stop doing them.

Everybody needs to get their noses out of Urinetown and back into the real world, and start dealing with these issues like adults.