“A gorgeous, great play. American theatre at its most engaging.” Could a producer invent a more perfect pull-quote? Unless you were launching a critique of the whole hype-y synergy between salesmanship and criticism (one well worth launching on another occasion), you could hardly blame the marketing team for The Trip to Bountiful—which opened last night at the Stephen Sondheim Theatre—for plastering this socko line on its website and other promotional materials.

Funny thing is, the line, though specifically describing the play itself—Horton Foote’s widely beloved 1953 drama about an elderly woman making an insistent last visit to her rural hometown, called Bountiful—comes from a review of another production. And not just any other production, but one that played a part in this new revival. Yet except for that pull-quote, the contribution of the earlier production has been disappeared, left behind by the bus that took Bountiful to Broadway.

Nothing illegal has happened here, nor anything that dims the astonishing radiance of Cicely Tyson, returning to Broadway after a thirty-year absence to play the central role of Carrie Watts. Nonetheless, something wrong has happened. An artist has not been given his due. Perhaps that’s business as usual. But for a play that decries a self-serving, individualistic urban ethos that has supplanted the human decencies and connections of old—as starkly signified in the contrast between Carrie’s meanspirited daughter-in-law (Vanessa Williams) and Carrie’s kind-hearted young seatmate (Condola Rashad) on the bus to her old home—the ethical breach seems especially blunt. And it didn’t occur in a vacuum, but in a commercial theatre where African American directors find few opportunities—and in a culture with a long history of white appropriation of black creativity. The case of this professional slight intertwines some longstanding vexing issues: the amorphous nature of a director’s intellectual property and the abiding failure of our theatre community to create a climate where diversity can thrive.

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Several years ago, the director Timothy Douglas hit upon the idea of staging The Trip to Bountiful with African American actors as the principal characters. He had just finished working with Lizan Mitchell on August Wilson’s Gem of the Ocean and wanted to cast her in a substantial role for an older woman that would take advantage of her considerable power and grace as an actor. Too bad she can’t do Trip to Bountiful, he thought to himself—and then, as he puts it, “the explosion went off in my head”: why couldn’t she do it? Reframing the play as a story about a black family wouldn’t require any tinkering with the text, Douglas realized as he reread the script, but the casting change would give it new valences of meaning. Set in Houston some sixty years ago, the play would make perfect sense: Carrie’s son, Ludie, working hard and underappreciated at his job, would fit right into the striving black middle class in Houston in that period. His frustrations and his domineering wife’s disappointments—their seeping bitterness is beginning to spread through the small apartment they share with Carrie—would have the personal sources they have always had in Foote’s play, but now they would also be tinged by a context in which black dreams were sparked and then doused. Ludie’s fears that Carrie would sneak off again and hop a train to Bountiful would intensify as she became not only an old woman with a heart condition setting forth by herself, but also an African American woman traveling alone in the Jim Crow South. The kind gesture of the sheriff who tracks Carrie down and ends up assisting her would add new dimension, too, when cast with a white actor. In sum, the concept would work. Douglas sought approval from Hallie Foote, the late playwright’s daughter and executor of his estate (and a formidable actor in her own right). She readily agreed.

The production premiered at the Cleveland Play House in February 2011. (The quote in the current Broadway publicity comes from Tony Brown’s review for the Cleveland Plain Dealer.) Hallie Foote supported the show with enthusiastic local press interviews and when she came to see it, Douglas recounts, she was effusive in her response. “She could not have been more accommodating,” he says. “She was the biggest cheerleader.” (Foote did not respond to an email requesting comment.) The play moved on to the Roundhouse in Bethesda, Maryland (which had coproduced with Cleveland), where it was warmly received again. Then, early this year, Douglas mounted the show at the Cincinnati Playhouse in the Park, once more with great success.

While Douglas was putting that show on its feet, he received an email late one night from Michael Wilson, a directing colleague with whom he was friendly. Wilson, who had frequently collaborated with Horton Foote, including staging the first productions of several of Foote’s plays, was writing to tell Douglas personally, hours before a press release would announce the news, that Trip was on its way to Broadway starring Cicely Tyson and that Wilson would be directing. He thanked Douglas for giving birth to the idea of putting an African American family at the center of the play and for his contribution to bringing it to Broadway.

Wilson was thoughtful to reach out, but that didn’t keep Douglas from feeling, as he describes it, like he’d been “hit in the head with a brick.” The stunner wasn’t primarily that the producer Nelle Nugent hired Wilson at Hallie Foote’s urging, nor even that Wilson is white—Douglas understands a producer’s desire for “bankable” personnel and Wilson has Broadway experience as well as expertise in Horton Foote; “I’m a big boy,” Douglas says, “but treat me like a professional. Call and tell me you can’t afford to take a risk on me.” (A request for a comment from the producers made through the show’s press office also went unanswered.)

What shocked Douglas was that the project was going forward based on his idea without anyone having spoken to him or having offered any recognition. (Wilson has acknowledged the debt obliquely to at least one reporter, telling the Observer, “There was a regional production, I believe in Cleveland” that set out “to explore the family as black.” He adds that Hallie Foote asked Wilson what he thought of the idea and that when he answered favorably, she asked if he thought it would work on Broadway. “‘Sure,’” he recounts telling her, “‘if you get Cicely Tyson.’” Without naming him, Wilson draws a straight line from Douglas’s idea to the production on 43rd Street. Hallie Foote admitted as much back in 2011, when she told the Plain Dealer that “Director Timothy Douglas came to me with this idea.

But when Douglas sought some kind of acknowledgement, producers, he says, told his agent that others had done black productions of Bountiful before. A search of Lexis-Nexis and Ethnic News Watch did not turn up any reviews or stories, so certainly they weren’t in major theatres, which bring the kind of acclaim that, as the writer/director/dramaturg (and expert on black American theatre) Talvin Wilks puts it, go into “making an idea viable.” The regional theatres where Douglas’s version was presented are part of what Wilks calls the “Broadway development machine” and “his success clearly made the investment in a Broadway production much more alluring.”

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But does providing such allure command a price or even a nod? Not according to any court of American law. To earn copyright protection, explains Ronald Schectman, an attorney with Pryor, Cashman, Sherman & Flynn who has represented directors seeking redress when alleging that their work was copied, material has to be unique and expressed in fixed form—for example, published in some material way, like stage directions in a script. In some cases, Schectman notes, artists do better by arguing according to trademark law, asserting that theatres co-opting a prior production’s staging are misrepresenting who the creator is. But either way, there has been “no authoritative determination” that applies across the board.

In one of the most famous tests of this issue, in 1999, Joe Mantello declared victory in a complaint against a Florida theatre whose 1996 staging of Terrence McNally’s Love! Valour! Compassion! he regarded as suspiciously close to his own previous Broadway production. The parties settled out of court, with Mantello receiving a payment of about $7,500, the New York Times reported at the time. But the defendants did not see the exchange as an admission of malfeasance, and the Settlement Agreement, issued by the U. S. District Court, Southern District of Florida, kept the murkiness of such disputes in place: “The legal issues asserted by both parties have not been resolved by the court,” it reports. In a similar case in 2006, a production of Urinetown that played in Chicago and Akron, Ohio, was challenged by the original Broadway creative team, and, two years later, was also settled out of court, but this time with the midwestern artists agreeing to pay to license elements of their production incorporated from the original. Bit by bit, directors, choreographers, and designers seem to be winning a piece of the royalties that traditionally have been mostly reserved for writers and composers. It’s a tricky business to compensate artists fairly and, at the same time, to avoid producing a chilling effect on new productions. And it’s a fine line between stealing another artist’s work and being properly faithful to a show’s original intention. (Using spangly gold costumes for the finale of A Chorus Line: following the dictates of the play or design theft? What about the way Bynum sings in Joe Turner’s Come and Gone? And so on …)

A director’s claims become harder, still, to delineate when they revolve around a concept. “You can’t copyright an idea,” Schectman explains. And matters that are “purely conceptual”—like casting—cannot rise to a level the law will recognize. Douglas has no beef in these terms. But artists offering key ideas to projects have often been listed as consultants and paid a fee. The Stage Directors and Choreographers Society suggested this standard to Douglas, and he proposed it to the Broadway producers; they were not moved.

The difficulty of identifying and crediting Douglas’s contribution, in the best light, has to do with how one understands the nature of his casting concept. Is it a form of  “nontraditional casting” that merely reiterates, as Hallie Foote has said, how “universal” the play is, and thus sees Douglas’s idea as adding no interpretive new insight? Or is insisting exclusively on the idea of “universality”—and, presumably, erasure of the actors’ particularity—part of the trouble? That is, this is not a case of “colorblind” casting, where actors’ ethnicities are meant to disappear into the imaginative world of the play—a practice that works best with nonillusionistic canonical works like Shakespeare’s, where we both know the plays well and are reminded by their self-conscious form and meta-theatrical comments that no actor is meant to mesh wholly with her or his character. Even in Ibsen, say—and, of late, in all black productions of Tennessee Williams—the classical status of the work might allow for the operation of the old liberal piety that would say the actors “just happen to be” black. But dramatic realism makes that prospect much more difficult to compass, as do a few centuries of America’s unresolved meshugaas about race. (Consider, as one striking recent example, how ardently some Americans insist that the Tsarnaev brothers are not white.)

In a naturalistic play like Bountiful, we “read” race as a fact in the story when it is portrayed by black actors. The casting doesn’t make the play about race or about being black, but neither does it pretend that the characters—and the audience—are not aware of who they are historically. More than an ordinary casting choice, then, Douglas’s idea shifts the angle of view, bringing new insights to light by dint of what Talvin Wilks describes as “a black director reinterpreting through a particular cultural lens.”

For the producers to acknowledge that contribution opens them to a contentious question: Would a white director see through that same lens and as capably lead the cast in the same exploration? Understandably, the producers probably don’t want to see the issue explode as it did in 2009, when Barlett Sher was chosen to direct August Wilson’s Joe Turner’s Come and Gone. While the matter may have been starker in the case of a play by a black author who explicitly asserted that he wanted to reserve his works for black directors, Douglas maintains that with an African American Bountiful, too, a black director can more organically elicit from the actors the sense of context and historical connection that the production raises. That’s not to take away from the considerable gifts and expertise that Michael Wilson brings to the job, Douglas is quick to point out, but to recognize a differentness that the Broadway show simultaneously banks on and seeks to make invisible. (How less heated—or necessary—this debate would be in a landscape where black directors had more opportunities for all kinds of plays. Despite the promises by producers in the wake of the Sher flap to reach out to more African American directors, you can still count on one hand the ones who have worked on Broadway in the last decade—Debbie Allen, Kenny Leon, Marion McClinton, Charles Randolph-Wright, and George C. Wolfe—and they aren’t exactly being tapped for Shakespeare or Odets or Durang. If they can’t even hang onto the African American shows, what will they have?)

As for banking on Douglas’s proof of concept, Broadway’s Bountiful is reaching out to a black audience that has not been a target for Horton Foote’s plays in the past. Along with special marketing and group sales efforts in African American communities, the multi-star cast savvily attracts various specific generations, notes Marcia Pendleton, president and founder of Walk Tall Girl Productions, a boutique marketing, audience development and group sales agency for the arts. The Sondheim Theatre—selling nearly 77 percent of its roughly 1,000 seats each night of the last week—draws a sizable number of black spectators (who take the lead in joining in as Tyson sings a rousing hymn). This audience, for whom Pendleton says critiques by white reviewers do not matter so much, can keep a show going even when reviews are mixed, as in the case of the all black Cat on a Hot Tin Roof. They are likely to buy tickets for Bountiful no matter what the mainstream press has to say. (And Tyson’s performance is certainly reason enough for anyone to go.) It’s Douglas who demonstrated that this market for Foote was viable. 

The reviews out this morning are, in fact, mixed, but they agree on Tyson’s brilliance and on the easy transfer of the play’s themes into a black milieu. The play is about “the buried desire to go back home,” writes the AP critic, and “about finding grace and about keeping a connection to your roots.” What a pity that the same can’t be said for the production.