Legally Speaking, It Depends – Playwrights & Playwriting – Act II

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We pick up the discussion of playwriting again looking into some of the aspects that vary considerably from theatre's counterparts in the film and TV worlds. You might be surprised by how many differences can be found with such things that are in essence so very similar. Words on a page are interpreted by actors in an elaborate production for an audience in all of these forms. You could even have the same elements (writer, actor, audience member, etc.) participating in several of these forms at different times. So just how different can they be? (Longtime readers can anticipate the answer here.)

Venue matters

There are significant differences in the venue of each form and those differences dictate approaches and restrictions as well as highly impact the life of the works. For our own clarity I'll define venue as the place (or medium) where the intended audience experiences the work. Over the life of a created work the venue can change but the type and style of its nature tends not to, at least initially for most works. I'm going to be very general here, which actually means wildly inaccurate, but you'll be able to get the gist.

A television show is created to be telecast in some fashion to multipurpose receiving devices under the control of its intended audience. Viewed usually in intimate though not exclusive environments and in small groups per place of performance, a multitude of venues share the experience (for broadcast, often counted in the millions) at the same moment in time for a single, or very limited number of repeat showings.

A film is intended to be shown multiple times over the course of its run in a vast array of special purpose venues (cinemas) to which the audience must travel and share the experience with a hopefully largish group of people at each repeated showing. The venue is controlled by a third party and is constructed to be a grander experience than what could be achieved at home, removed from most distractions and catering specifically to the medium of film, but, not to any individual film.

A play is intended to run much longer than a single showing. There is only a single location venue for each performance run of the work but that venue is especially adapted for that individual run of the show (i.e. the set, the marquee, etc.). While every performance is in essence the same material throughout a run, elements of each show change, either expectedly (e.g. changes in cast over the course of a run) or unexpectedly (e.g. flubbed lines) that makes every performance a somewhat unique experience.

These variances are incorporated in subtle and not so subtle ways in a well written script aimed for one of these targets. For example, a whispered emotional scene only works best in the quiet and manipulatable environment of film (combined with close ups). Televisions live in noisy, distracting environments where the whispered dialog can get lost, and “stage whispers” are difficult to pull off believably for the audience members sitting in the 28th row balcony seats.

Beyond the technical alterations necessary for the writer to tell a riveting story in each of these media, there are significant differences that affect the business and legal approaches to production as well.

Because a play is performed at a single theatre per performance run, the initial theatre chosen to put on the play carries a lot of influence in the realizable potential of the work and helps toward establishing the prestige of a play. The usual course is to start as big as possible, for as long as possible. A producer will strive to get a new play into the best theatre available for the initial run. That isn't to say that the play may not be workshopped or previewed in a theater of lesser renown prior to it coalescing into a Broadway-ready “debut.”

Where a play is first performed is usually tied contractually to the play's future publications and performance notices. Few people care where a film was premiered (beyond a few festival directors, I'd venture almost no one truly does). If a play is performed in a “first class” theater ( a contractual term, the definition of which is amorphous and vague. Just assume that legitimate Broadway or West End theatre's qualify) there will be contractual constrictions and considerations that follow the play's progression. Different contractual rules apply for performances on “second class” levels (read, Off-Broadway, large Regional Theatres, etc.). This isn't to say that high caliber theatres off the traditionally beaten path, say Steppenwolf in Chicago for example, won't have serious claim to be considered first class and treated as such contractually. And don't count out smaller avant garde theaters who are keen to provide new play incubator space on their stages. Every theatre contract is unique to some extent and shouldn't be overlooked or deemed insignificant.

The choice of theatre is often influenced by the contractual obligations within the playwright's contract as well. Terms may demand a certain minimum number of paid performances in a first class theater, not counting previews, in order to acquire the rights in the first place. And don't forget prime tickets reserved in case the playwright wants to see their show.

Since the time it takes to ready a play is long, from rehearsals and set building, through run-throughs and tech, and there is a lot of competition for the limited supply of stages added to the fact that theatres make no money when they are dark (no paying performances scheduled) the job finding a theatre is not an easy one. And there are lots of complications unique, or at least different from other script based entertainment as well.

Besides the Dramatists and Director's Guilds mentioned earlier, there is other strong union control over most theatrical venues. Unlike a film that mainly uses lots of union workers only during the short few weeks of production, the life of a play constantly employs teams of union workers at each performance of a run. Actor's Equity governs the actors employed at nearly every theatre in the United States. Then there are the stagehands, technicians, property masters, wardrobe, musician unions (whether or not its a musical) and many other union skilled labor employed each day to keep a theatrical production running smoothly. Each union has it's rules and stipulations to abide by and the fact that the relationships continue each day for the run of the production mean that a producer must pay extra attention to all the little (and big) details constantly not to run afoul and have the whole production grind to a halt. And this attention to detail must be maintained for the life of the run which could last for years.

Musical theater has its own special complications. For one there are multiple “writers” involved. The spoken words, or book, is written by the playwright, the composer writes the musical compositions, the lyricist the lyrics. The final product intricately and inextricably intertwines the work of these three elements into the whole of the performance. They each are co-authors of the final work according to copyright terminology, even though their contributed elements are often vastly different in type and style. If it weren't so lucrative (musical theater on Broadway far outpaces the profit and run-life potential of a drama or even a comedy,) the hassle of getting all the owning parties to agree on a musical run would be off-putting. And don't forget about the choreography (another interesting copyrightability and ownership concern.)

Just to give an inadequate glimpse at one of the many complex issues we're required to overlook out of brevity in this review of the differences encountered in stage work, let's look at a seemingly simple question, “who owns the choreography?”

Choreographers are hired by producers to create unique works for a new production. You would think that there would be contractual arrangements made to ensure that the ownership of the result would be made clear. And usually that is the case, but, there are complications. Here's one, even though choreography is one of the categories of work that are protectable by copyright law in the United States. There is the requirement, as there is for every copyright matter, of the work being fixed in a medium of expression. For a writer, that means it's written down on something (paper, computer, scribbled on a chalkboard, etc.) Remember the problem of the extemporaneous dialog I brought up at the end of the last article? The reason for the fixation requirement is that if a work is sufficiently fixed in a medium that can be understood by another, then it can be “copied” exactly and therefore there is something tangible to protect. Memory alone isn't sufficiently reliable (at least legally) to assure that the original was “copied”.

But dancers aren't glued to the stage or fixed in any tangible sense. In fact motion and “non-fixed-ness” is key to it being dance. How are all the subtleties of the motion required to fill the choreographer's demands certain to be carried out? With the choreographer watching they can correct any errors, but, what about the tenth performance, the one-hundredth?

Courts have accepted certain types of fixation as sufficient for the highly complex task of registering choreography as a copyrightable work. If it is accurately detailed enough and shows the entirety of the stage for blocking purposes, a video or filming of the performance may be sufficient. This is often how owners achieve fixation for film work as a byproduct of making the film itself. There is also a highly specialized choreographic documentation language available for the work to be written down with sufficient exactitude to be replicable. But in the rush to get a play to opening night it is possible to forget to secure this requirement. Suppose a competitor choreographer comes to the opening night performance and loves what she sees, memorizes several of the best moves and immediately incorporates whole swaths into her new work opening across town in a couple of weeks. If the first choreographer hasn't fixed their work in any acceptable form, do they have an actual copyright infringement claim? Who owns the choreography then? The answer could be, “nobody”.

There are many other areas where playwrights and other script writer's works and end results differ drastically, but, we'll stop here. Suffice to say that every medium of expression has its unique character, problems and opportunities. Far from just the different format used on the page, awareness of these differences can help to keep the production – in whatever medium – flowing smoothly. If your interest has been piqued, there are many other resources where more in depth discussion of the differences will enlighten.

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