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Where Do Broken Hearts and Intellectual Copyright Go? The Ponderings of a Dumped Artistic Director

Three actors and a baby on stage
Three Little Kittens created and directed by Ernie Nolan at Emerald City Theatre’s Little Theatre, Chicago, Illinois. Photo by Johnny Knight.

In January 2016, I went about the afternoon at my theatre company like any other Thursday. I answered emails, had a quick catch up with the associate producer, and then attended the weekly sales meeting. For almost an hour, we discussed strategies for the upcoming spring repertoire. Our fall had huge audience numbers, a hit show was extending, and we were continuing to analyze how our holiday production grossed more than $100,000 past it’s box office goal. When the meeting completed, the executive director and I prepared to leave for what I thought was a pre-board meeting “prep meeting.” I got my coat, packed up my briefcase, and used the rest room before finding the executive director in front of the building. It was at this point I discovered I wasn’t going to the meeting I thought I was and, was actually, about to reenact a scene from the George Clooney movie Up in the Air.

I was told by the executive director there was no pre-board meeting “prep meeting.” She announced that she and I were going to have a “very serious” conversation and then led me into the theatre for the very young space that I helped to create and build for the company. A table was already set up and seated at it was the board chair, who commented again about the theatre piece I created for toddlers and how magical it was. The executive director opened up a manila file folder and began to read from a script. I was told that “the company is going in a different direction” and that “I didn’t have the qualifications or the time” to continue in my role as artistic director. When I asked what the new direction was or how it pertained to the company’s new mission statement that I recently wrote, I was told I “couldn’t be privy to that information.” A pre-written letter of resignation, including all of my personal details, was put in front of me. After I was asked to sign it, I was complimented on my contributions to the company over the past ten years. (I started as a guest director, and then quickly moved up to artistic associate, then associate artistic director, and finally artistic director). I was then asked for my keys, told my email was being closed as we met, and made aware that I could come in on a weekend or after hours to clean out my desk. I refused to sign the letter of resignation. The executive director, seemingly exasperated, wondered what she was going to tell the staff in twenty minutes at a staff meeting. “What will we put in the press release if you don’t sign this?” she asked. I replied, “The truth,” which did appear in the press release along with the announcement of the appointment of a new artistic director, which had been arranged the week before my termination.

I am very conscious of the ghettoizing of black writers. There is a need for publishers and critics to compare me to Terry McMillan, but never to Anne Tyler.

As you can imagine, since that fateful day I have asked myself over and over again, “How could this happen?” In the past when the company dealt with difficult employees, we went through hours of meetings discussing employee improvement plans and documenting performance issues, so I turned to my own performance reviews for some sort of trail. According to the document given to me three weeks before, I was a “Valued Employee,” meaning that my “performance consistently met expectations in all essential areas of responsibility, at times possibly exceeding expectations, and that the quality of work was over all very good.” Individual comments included everything from acknowledging my patience with staff, to admiration for my “amazing eye” for properties, to recognition for the public’s view of “my artistry and vision,” to kudos for my understanding of the production budgets. There were suggestions on how to manage new staff members, but no red flags or demands for significant improvement. So how, after ten years of accomplishments (including five years in multiple leadership roles and five as artistic director), could I be dumped this easily?

Easier than I might have thought. Since Illinois is an employment at will state, the employer or employee may terminate the relationship at any time. No documentation or warnings to fire an employee are needed.

Another reason why the process of letting me go was simple, was my letter of hire at employment had me reporting solely to the executive director. Through the years I discussed wanting to report to, as well as have a seat on, the board like other artistic directors I knew. But I was the first AD that wasn’t the company’s founder, so I knew the organization was on a learning trajectory when I accepted the position. In fact, the day I was let go I was told that only a few board members knew that I was being terminated, the majority learned of it that evening at the board meeting.

Another reason why it was a clean break, the theatre wasn’t my only, major source of income. Since I shared my time between my university position at DePaul and the theatre company, I would not be receiving unemployment. Unfortunately, the only compensation offered was a four-week severance package contingent on signing a separation agreement that I have declined to sign.

Do Artistic Directors have any claim over their work, or is it sacrificed when they leave the organization?

In an effort to recover from my shock and grief, I quickly began to throw myself into other work. While prepping for the classes I teach, I came across a quote by Timothy J. McClinton, President of the American Express Foundation, in Tobie S. Stein’s new book Leaderhsip in the Performing Arts. McClinton shares in an interview, “Leaders really have to focus on the future not just on he present; they have to focus on the people not just the systems; they have to not just imitate what others are doing but differentiate and originate.” I became fixated on the word “originate,” thinking of all of the ideas, policies, and programming that I involuntarily left behind at my former place of employment. My work as a playwright, contracted separately, is copyright protected. But what about the continuation of programs I developed, such as theatre for the very young, my knowledge about titles, and even next season’s programming? The theatre has announced it still plans on producing titles I planned for next season, despite the company going in a “new direction.” Doesn’t this qualify as abuse of my intellectual contributions?

Thinking back to the time of my promotion to AD five years ago, I never signed what’s known in business circles as an assignment agreement, which basically says that a company owns all the rights to my ideas both now and, in some cases, in the future. Orly Lobel, a law professor at the University of San Diego and cofounder of its Center for Intellectual Property Law and Markets remarks in a Fortune 2013 article, “Assignment agreements used to be mostly confined to people specifically hired to create or invent, but not anymore.” Lobel continues that these days, “the trend is toward companies trying to control all creativity, including skills, ideas, discoveries, and techniques—tacit knowledge that isn’t subject to patent or copyright under the traditional scope of the law.”

Even without such a specific kind of agreement, I have to wonder if the ideas and programs of the nonprofit arts leader are his or her’s or the company’s? Do ADs have any claim over their work, or is it sacrificed when they leave the organization? It’s the case that many individual arts leaders appear to be specifically linked with and celebrated at their institutions. The Goodman Theatre specifically credits on their website, “Under the leadership of Artistic Director Bob Falls, the Goodman gives life to the work to today’s most dynamic artists.” Would the Goodman not give life to the work of dynamic artists if it weren’t for Mr. Falls? Is it his definition of dynamic or the Goodman’s? While the Goodman existed before Mr. Falls, is it what it is today because of his ideas and programs?

In order to search for answers to these ponderings, I turned to colleagues in the theatre for young audiences field about what they thought an artistic director might claim as their own. Not surprisingly, many knew about the rights of a creator in terms of a specific artistic work, but others admitted knowing very little when it came to intellectual property and the theatrical workplace. Email responses varied from “My opinion doesn’t really matter, it’s what the law says” to “I think most human resource employee documents state that ‘work accomplished during employment is owned by the company.’ Is that right? IDK.”

Director, dramaturg, and Assistant Professor of Applied Theatre and Cultural Engagement at University of Texas at Austin Megan Alrutz admitted, “I have been facing some similar questions in my work as dramaturg and I think they also apply to work that we do at the university.” She added, “Unfortunately (in my limited experience), when we are employed by a particular organization, they tend to own the ideas we came up with while working there­­—unless we have something in our contract that says otherwise. The key, I am finding, is to now put my requests in writing before I do any work.” But what about the ideas of the full-time employed artistic leader? Artistic directors are frequently employed with letters of hire versus. a contract. Alrtuz noted, “Disney owns everything their employees create/think of while they work there. But they get paid way more than we do, so I think there are some compensation questions to consider.”

Michael J. Bobbitt, Artistic Director of Adventure Theatre MTC, discussed the complexity of the issue with me as well, “As an employer, I see both sides of the discussion. I have had many employees that have instituted great programs

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Anything you do on the company's dime belongs to the company. The end. That said, I went through the same thing as you and understand your pain.

As much as I understand the murkiness of intellectual property and institutions, I agree the work belongs to the organization. I also speak from the perspective of both the employee and employer, though I work as Education Director. Something that helps me wrap my head around this is this: As a leader, I don't just go to an institution to do whatever I want. I study the institution, its constituents, its resources, its values and aesthetics and design programs that fit all of that. These programs will be intrinsically different from those I would create on my own, or for a different theatre. Therefore, they do belong to the theatre when I go and I do consider myself fortunate to be paid to think creatively and leave a legacy at the institutions I work.

Really sad to read this. Sending solidarity...

It does start an interesting conversation about the varying roles of Artistic Director and what it means to different people/organizations. The idea of unionizing is tough because of the completely different job descriptions per individual/institution...

Judith used to always talk about Joanne Akailitis being outed after Joe Papp wanted her to be his successor. In fact this fear probably keeps some non profit theatre companies from creating too strong a board of directors. It's another interesting example of how that corporate structure does not suit the arts quite right.

Anyways, thank you for writing this, I'm sure it was not fun,

Brad Burgess
Artistic Director
The Living Theatre

I think the magic of the human spirit lies in the artist and not in the artistic institutions. The theater is just an empty stage with no intrinsic beauty or majesty. It amazes me that so many people in the arts don't understand this power dynamic. The very idea that my vision could somehow transfer to a theater just makes me laugh. My biggest problem lies in showing what I have within me, the "show" part of show business. I don't have to worry about anything being taken from me.

I've been in this situation but never had a reason to think that any changes or programs or initiatives I created while employed by an arts organization belonged to me. When they hired me to be the artistic or executive director, they HIRED me to come up with new ideas or better systems. To quote Don Draper, "that's what the money is for!", and when the gig ended, regardless of the reason, the ideas I came up with and the work I did there remained their property, since they'd already paid me for it.

While it sucks to be let go under circumstances like this, the best answer to the broken heart or raw butt is to get up and create something different, newer, better than what you left. Chicago's a low-cost town to start a new project, and the field is open for others who have different ways of approaching the market.

Ernie, sometimes we are put on this earth "as a warning for others." Few AD's are ever compensated for all the creative toil and tears. Thank you for telling your side of the story. Do the funders, foundations, designers, staff, (rest of the board) artistic associates support you? Bring your brilliance to DePaul's children's theater. We are so proud of what you contributed to the Chicago theater scene and how you did it. Take a bow.

I think that the severance was tied to the separation agreement may be the wedge to file an Intellectual Copyright suit - even as a test case. This is especially true as they are continue to use your programmed season while terminating because they were going in a "different direction." If they don't want to go to court, they may settle and you might get some compensation. Even if they don't the publicity will help other ADs. Good article to discuss in class.