New Copyright Frontier Opens on Stage Left
Often the interplay between litigation and legislation is a strange phenomenon that boggles the mind. In an era where politicians routinely lambaste so called activist judges for legislating from the bench, many are led to believe that judges simply put to paper whatever notion they have in their head. The reality is that judges often must fill in very narrow but contentious blanks in statutes that simply cannot be drafted to cover every contingency in the known and unknown universe.
A new and soon to be classic example of this principle is the recent suit over whether a director’s stage directions are protected by copyright. There, a spurned director, Edward Einhorn, claims that the ultimately staged version of Tam Lin, the play he worked on for two months, borrows substantially from his stage directions. The Defendants claim that Plaintiff’s directions were merely de minimis clarifications of the playwright’s original directions. Unfortunately, the Copyright Act does not address whether stage directions are inherently protected and, if so, what are the standards to determine infringement. In other words, this is a matter ripe for judicial intervention. The New York Times has an excellent analysis of the case, the players and the history of this and related disputes.
More than legislative politics at stake, the decision could pour gasoline on the always collaborative fire of theater, creating another front in the war for attribution. And so the entire theater-making process is in jeopardy. If directors are afforded copyright protections it could result in a royalty chain extending to every run of the play. In fact, the price tag on the current suit is damages of 150K per performance–each one a potential infringement–for a grand total of $3 million (odd considering that statutory damages are awarded per the work of authorship, not the number of infringements). Oh, and the director is also suing for the $1000 he was supposed to be paid. This is a terrifying prospect for many.
So what’s a judge supposed to do? It’s a difficult proposition and Judge Kaplan of Manhattan Federal District Court (yes, the same Judge Kaplan of Rent fame: Thomson v. Larson) has no direct case law to rely on either, save a few close encounters. A similar suit in Florida, involving the popular Broadway play “Love! Valour! Compassion!,” ended in settlement, despite the noteworthy refusal of the court to grant summary judgment in favor of the defendants’ proposition that stage directions are inherently not copyrighted. There are those that would instantly view this as a usurpation of the traditional role of the playwright and an unnecessary legal intrusion–The Times piece has an excellent palette of one liners from various industry players who voice their opinion on the legitimacy of this case and its underlying proposition.
The seemingly divergent views of the Copyright Act’s purpose: a tool to foster creativity through open discourse, or a tool to protect original and fixed forms of expression, preclude relying on the cozy ambiguity of the status quo, in contrast to the Plaintiff’s proposition. I believe that directors in providing visual and temporal arrangement put the flesh, face, and a voice on the bones and soul of a script. To say that one is protected under copyright and the other isn’t is to jump headfirst in the pool of spurious logic. That said, I’m mindful of the serious and painful consequences this might cause, but I am confident in the power of contracts and fair negotiation to resolve them. However, no matter what the outcome, the Judge, lawyers, and the law will come off the bad guys.
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