With thanks to the Wall Street Journal Law blog; It seems that the courts are getting set to further define if or when copyright can apply to ideas. In this case, a NYC Theater (pronounced Thee-aht-ter) director has gone at odds with a playwright and production company, claiming that his directorial staging constitutes a copyrightable element, for which he claims he is now owed over 3 Million Dollars for infringing performances.We all know the that ideas cannot be copyrighted. The basic premise throughout copyright law that a performance of a work must be fixed in some tangible form. This is a nobrainer when you look at a script for a play, namely words on a page = fixed. But how about the directorial choices that are made when bringing words on a page into an intangible form like a stage presentation. Those familiar will recall the copyright caveat, “Mere performance or display of a work does not automatically constitute publication”. But what about blocking instructions which are the movement instructions given to actors?
In an extensive article that appears in the New York Times, (Free – but registration required) authored by Jesse Green, he quotes:
“John Weidman, president of the Dramatists Guild of America and the author of the books for “Pacific Overtures” and “Assassins,” argued in American Theater magazine that “if a directors’ copyright is ever established, it will drastically limit a playwright’s ability to control the work which he creates.” Such copyrights, he added, “would clearly operate as liens on a playwright’s play” and have “a potentially devastating effect on the facility and vitality of theatrical production.”
Whether or not the danger is so grave, no legal finding has yet established that a copyright for staging exists. And the “Tam Lin” case may not answer the question. The defendants’ lawyer, Toby Butterfield, argues that the material Mr. Einhorn says he owns consists mostly of minor restatements of the author’s original stage directions. “Instead of ‘Exit,’ it’s ‘Exit left,’ ” he said. “Instead of ‘Picks up book,’ it’s ‘Picks up red book.’ What he created is so insubstantial that it doesn’t rise to the level of a copyrightable work.” Mr. Einhorn’s lawyer, …., disagrees.”
I find a particular interest in this case, both as a photographer that is interested in how copyrightable elements are designated within a photo, and from my past experience haveing written and directed plays as part of my Masters Degree. From a playwright perspepctive, I know if I’d written a script, I sure as heck wouldn’t want to pay royalties to a director because he scribbled his staging notes in the margins of a copy of my play. In regards to an example in the NYT article, things like “Exit stage Left” or “puts the glass on table” should not count as a significant new contribution to a work such to warrant protection as a new or derivative work On the otherhand, as a Director, I sure wouldn’t want someone copying my original staging. But just because I, as a director say “Exit stage Left”, I can’t really justify that any subsequent production that also incldes “Exit Stage Left” is a derivative copy. But an exact “re-staging” of an entire production would be rather upsetting. This would seem to be more an issue if a performance of a play was videotaped, or in copyright parlance, put into a fixed and tangible form.
As photographers, we have a mirror interest in seeing how the courts decide some of the issues. Many of the same concepts can apply to us when we ‘borrow’ lighting techniques, or poses, or set design, or perspective (camera angle), etc.. But unlike the where the play’s the thing, our photographs are considered fixed at the moment of creation, therefore making copyright claims or defenses much more immediate. These issues of the originality or similarity of ideas, or the expressions thereof, were brought to light in a case involving a commerical photographer and a Vodka bottle. The courts held that the more common the expression, the less protection is afforded in determining similarity between copyrightable elements.
In the end, this boils down to a case of “Hey, that was my idea”. But can the ideas warrant protection for an intangible staging, or if it all falls down to the ‘fixed’ expressions of those ideas, are they substantive enough to deserve compensation or derivative status.
Perhaps “Exit Stage Left” should have the same protection afforded as “backlit”.
