Media & Entertainment Law

Should there be a ?Director?s Copyright? in stage directions? (Reader survey)

By Gordon Firemark

I’ve recently been grappling with a question of whether a theater director’s efforts to stage a play or musical can be protected by copyright.

Now, at first blush, this might seem a simple  issue, but it’s actually rather complex.  The parameters established by  copyright law itself, are inconsistent with the custom and practice in the theater industry,  which is also inconsistent with some of the typical contracts found in theater production projects.

Here’s what I mean.

Directors routinely include in their contracts a clause providing that the Director will own the “direction” of the show, and shall have the right to copyright it in his/her own name. This is true, certainly, in Directors who are members of the SDC, the union representing stage directors and choreographers, which means, that producers have agreed to this provision in the course of collective bargaining.

The trouble is, under copyright law, a copyrightable work created by an employee in the course and scope of his employment (as with a director hired to stage a production), belongs to the employer, rather than the employer.  This is one part  of the often-misunderstood “work made for hire” definition contained in the U.S. Copyright Act. (the other doesn’t apply to theatrical productions, so I’ll save that discussion for another post).

What complicates things even more, is that in theater, and under Copyright law, the playwright, composer and lyricist own the show, and in almost all cases, the contract for the production of a play or musical provides that any changes or additions to the show must be approved by those authors, and if so approved, become a part of the show, and therefore the authors’ property.  Since the production contract is  often signed before a director has been hired, isn’t the producer, simply by hiring a director under the terms of contract allowing the director to own the “direction” of the show, a breach of the production agreement between producer and authors?

Since the direction of a play is, necessarily based on the play itself, it is a “derivative work”, and therefore requires permission from the copyright holders  (i.e., the authors).   Moreover, the only way the direction of a show can even be eligible for copyright protection is if it is “fixed” in some tangible medium, and that fixation, too would require the authors’ permission.

Now, this whole issue hasn’t been litigated very much, and the few cases dealing with this issue have arisen out of “copycat” directors of subsequent productions.  In those cases, the rights to stage the show had been obtained from the authors, but under a license that didn’t make reference to the staging and direction of the performances.   In at least two cases (both involving the musical  Urinetown (which I wrote about here and here ), the producers of  the original production sued later productions that were too similar to the originals.

So,   I’m taking an informal poll.  Who  really should own the direction of the play or musical?  Should the director be entitled to a royalty if his/her staging is re-created by later licensees of the show?  Should the show’s authors benefit from the efforts of other creative team members in this way?  Should play publishers begin licensing the direction along with the book, music and lyrics?

Please let me know your views on this by commenting.  I’ll publish a summary of the results in a few weeks.

Full post as published by Entertainment Law Update on June 24, 2010 (boomark / email).