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Convivial Control, Culture War, and the thatswhatshesaid Watershed

In recent months, issues of casting and interpretation have led to what may be considered an open rupture in the American theatre. In an open letter dated November 18, 2015, Doug Wright, the president of the Dramatists Guild of America bought the issue to the fore. “Recently, issues of casting and race have arisen in our national conversation about theatre. While the Dramatists Guild applauds these necessary, rigorous and heartfelt conversations, it seems to us that there is a simpler principle at stake here: the right of authors to safeguard their work.” In essence, Mr. Wright urged the theatre community to set vital cultural conversations aside for something that the DGA felt was far more important.

The specific productions referenced by Mr. Wright’s letter, include productions which either had the right revoked or took casting decisions contrary to the playwright’s intentions (possibly the most prominent of which was a production at Kent State University of Katori Hall’s The Mountaintop, which featured a white actor in the role of Martin Luther King, Jr.). In these cases, specific racial components of the scripts were disregarded (or even subverted, as the case may be). In some cases, the argument was that no actors of the appropriate race were available to play the role. In others, the director asserted that they made the casting choices explicitly to provide commentary (as in the case of the Kent State production) on the subject matter.

Wright continues in his letter to point out that, “directors who wish to dramatically reimagine material can choose from work in the public domain.” Mr. Wright is, legally and practically speaking, completely correct. Works which have passed into the public domain (which can be tricky to figure out at times depending on jurisdiction and composition … will the second act of At Home at the Zoo [aka Zoo Story] enter the public domain long before the first?) have no legal protection. They are public property and producing artists can do with it what they like.

However, this becomes problematic because Mr. Wright asserts a lack of meaningful consultation with the writer to be both a legal and moral breach. That it is a legal breach, in the case of copyright protected works, is self-evident. The wording rests in the law. However, the assertion that it is a moral breach seems to border on acts of a NIMBY. NIMBY (Not in My Back Yard) is a movement that advocates for needed improvements and infrastructure so long as the subject does not need to undergo any form of duress or hardship. If consultation (or, barring that, abiding by the playwright’s implicit intentions) is a moral imperative, why is this limited only to living playwrights with legal protection and litigation support? Wouldn’t an appeal to said moral imperative be all the more important given the public domain playwright’s lack of legal protection? Instead the call seems to be “Not my play … go do it to Shakespeare. Go do it to Behn. Go do it to Hurston and Hughes.”

Wright finishes by asserting that “one may agree or disagree with the views of a particular writer, but not with his or her autonomy over the play. Nor should writers be vilified or demonized for exercising it.” This is an assertion, which is strictly correct in terms of the law, that playwrights who have copyright protection are allowed to exercise autonomy over their play. However, it goes on to state that writers who exercise these rights should not be demonized. It seems implicit that a writer who exercises autonomous control over their plays should not be criticized in any way for doing so. After all, they have the right to do so.

In this writing, I have no desire to “go to bat for” the casting choices made at Clarion, Kent State, or any other productions that precipitated (but may not be mentioned in) Wright’s letter. These are aesthetic judgements that, for the time being, lay outside of my inquiry. The question of casting a white actor as Martin Luther King, Jr., though certainly a provocative one, overshadows in its very provocation the wider ramifications of Mr. Wright’s assertions, particularly in terms of the playwright’s aesthetic rights as being morally based. In essence, since this is not a discussion that Mr. Wright feels is as important as the issue of authorial ownership, let us discuss the latter issue instead.

Erin Pike in "That'swhatshesaid." Photo by Tim Summers

The Seattle production thatswhatshesaid provides an excellent trial balloon and thought experiment in terms of a playwright’s rights as an artist. Already discussed in this journal by Arwen Mitchell, thatswhatshesaid took the lines belonging to the female characters from the country’s most-produced plays and wove them together into a performance commenting on the plight of women in the American theatre. Upon hearing of the production, Samuel French, the publisher and representative of a number of dramatic authors, sent a cease and desist letter to the producing agency, Gay City Arts, demanding that the production not be allowed to go on. The first letter received regarded lines from Joshua Harmon’s play Bad Jews.

At the last moment, the artists responsible for the show opted to redact the lines from Bad Jews and continue with the performance otherwise as planned. However, they would receive numerous other cease and desist letters in regards to material from the various plays which comprised the pastiche of their work. The one which seems to be the furthest limb of logical extent is the one in regards to material utilized from The Whipping Man by Matthew Lopez. For those of you playing at home, The Whipping Man contains absolutely no female characters who have lines. Indeed, it contains no female characters whatsoever. There are no lines from The Whipping Man contained in thatswhatshesaid. Instead, the absence is noted by the sound of 72 pages being turned.

The upshot here seems to be that The Whipping Man is being criticized for a lack of female characters, and the representative authority is attempting to silence said criticism through use of threatened litigation. To claim that Samuel French and Matthew Lopez are within their rights to demand a cease and desist in regards to material that is absent from the show strikes me as the ultimate legal absurdity, an absurdity on par with the estate of Robert Harling (Steel Magnolias) sending me a cease and desist because I didn’t take a moment in this essay to tell Shelby to drink her juice. Though maybe I am safe now.

Steel Magnolias
A screen grab from Steel Magnolias. Photo by YouTube. 

Should Courtney Meaker and Erin Pike have asked the permission of the playwrights in order to use their materials? It seems disingenuous to expect an artist to approach an author asking to hold their work up as an example of what is wrong with the American theatre.

Returning to Doug Wright’s letter and not being able to disagree with an author’s autonomy over their play, the threatened legal action seems to state that this autonomy extends to criticism of the play as well. Should Courtney Meaker and Erin Pike, the artists responsible for writing and performing the play, have asked the permission of the playwrights in order to use their materials? It seems disingenuous to expect an artist to approach an author asking to hold their work up as an example of what is wrong with the American theatre. Such an expectation is almost designed to put a particular group beyond any possible reproach and to shut down forms of critical discussion under the aegis of standing for the rights of that same particular group.

The philosopher Daniel Haybron, in his Happiness: A Very Short Introduction, examines the concept of rights, particularly when rights are asserted as a defense for behavior. “Obviously, if the only constraint we put on our behaviour is to avoid doing things that might warrant the use of force or compensatory proceedings against us, life will rapidly become, as the English philosopher Thomas Hobbes might have said, ‘nasty, brutish and short’.” Considered as a legal entitlement, to say that you have a right to something is simply to say that nobody can stop you from doing a thing. Broadly speaking, you have the right to be a total jerk, and nobody can stop you. You can do with your property as you wish, but to treat this status as an inherent good, as good in and of itself, points to a major weakness in our system. It seems interesting that the theatre, which has always sought to elevate civilization, finds itself at this crossroad.

The question of who is the villain, and who is at fault, reminds me, more than anything else, of the American “culture wars” of the 80s and 90s. This fight for respect, and the “soul of a nation” reverberates in the discussion of “who really owns the play.” Copyright is treated as an inherent good as opposed to the tool that it really is. If one side can be said to lose in such a cultural conflict, they are left to cast about for a differing grievance while firmly convinced that the American theatre is screaming toward a place generally approached in a handbasket. Directors may fume that “those rotten playwrights are standing on our neck and killing innovation,” while playwrights insist that honoring their intentions is a matter of needed (and all too often lacking) respect.

Dividing playwrights from producers and directors and getting them to fight over respect and intention does wonders when it comes to keeping people from questioning the production model altogether.

However, much like the culture wars from American politics, this “cultural conflict” in the American theatre shares a similar root. Dividing playwrights from producers and directors and getting them to fight over respect and intention does wonders when it comes to keeping people from questioning the production model altogether. If I am beating the bounds of my story to ward off interlopers who may reinterpret it, I am far less likely to question why a theatre never writes back on a production proposal but is johnny-on-the-spot when it comes to that fundraising letter. It is a form of divide and conquer that has been a benchmark of class warfare for a very long time. From the outset, Mr. Wright’s letter recontextualizes the issue of race (arguably one of the single most important conversations happening in America) into that of authorial ownership. Since, if deconstruction is to be believed, there are a multiplicity of meanings inherent in a text, this well of distracting conflict will never run dry and real progress can be significantly slowed if not largely halted.

Let us short-circuit much of this difficulty by embracing a theatre which is truly convivial. Ivan Illich, an Austrian Roman Catholic priest and social critic, defines a convivial society as that which allows open access to the necessary tools of said society. He considers “conviviality to be individual freedom realized in personal interdependence and, as such, an intrinsic ethical value.” Each person who participates has the materials that they need to do so on a truly equal basis. Control of said tools is truly collective, in this case, as opposed to the capitalist industrial model where tools are held ransom to provide goods that are rendered necessary by the society. Nowadays one needs a play for a production, and the play is held ransom to the legal and moral rights of the author. Such things are not convivial.

Playwrights have experienced their share of abuse and deprivation. John Augustus Stone, author of one of American history’s most produced plays, Metamora; or, The Last of the Wampanoags, committed suicide in 1834, and some critics place the blame at the feet of the paltry remuneration he received for his plays, which were wildly successful. Copyright and licensing protections have done a great deal to protect the professionalization of playwriting and increase the quality of plays on offer in the American theatre. However, Illich points out that any system has two watershed moments. The first is when the benefits of a particular regime plateau, and the second is when said regime becomes actively harmful. In terms of tools, as Illich frames his thinking, people now no longer control their tools but are instead controlled by their tools.

We are locked in the grip of a culture war, driven by a copyright regime that has, in the case of thatswhatshesaid crossed its second watershed and become actively harmful. Litigation is threatened in response to critique that does not even contain material from the play in question on the grounds of copyright infringement. All this can do is silence dissent, divide artists from one another, and smash hopes of convivial control of the means of production and real, respectful collaboration between artists. Thus the steps of progress are forced to falter.

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I was hoping, in this article for a clearer conversation starter about the idea of rights and theater. I firmly believe that a playwright's words must be respected, that directors and actors have a responsibility to get the words right. I think that all writers should be paid for their work and the royalties paid are a cost of doing business for me that I have no argument with as an AD. That said, parody is a critical element of art and social criticism and thatswhatshesiad is a perfect example of parody. Simply said, no court should hold up the copyright laws as infringement in this case. Art makes commentary and thatswhatshesaid was a brilliant use of parody to comment on a very sad state of American theater.

To the points of interpretation—casting, etc. As a director, as a theater producer I have little interest in trying to recreate what was in an author's head. While I have no trouble being true to their words, and paying to use them, my art, and the art of the actors I work with begins with the brilliance we see in the writing and how that writing inspires us to create our own artful production. If my hands are tied to using only the "type" of actor envisioned by the author's idea (and I have no opinion on the Kent State issue, having not read much about it but having a sick visceral reaction to a white MLK) there can never be parity, there can never be change, since most of the plays we have are anglo origin and are overdone with anglo/male characters. And this is not, in the least, artistically interesting to me. I love working with living playwrights, and have no trouble conversing with them about my intentions as a director, of working with them on my production ideas. Playwrights are writers. Actors are actors. Directors are directors and together we can meld our varied skills to create a combined art that is beyond the limits of our individual talents.

Finally, as a visual artist, writer, and theater artist I do not think we have control of our "products" once we release them into the world. Teachers have students read our work and develop interpretations, often claiming the meaning of our work to be one thing, and in truth maybe even something we were not talking about at all. As artists we do not get to control how others experience our works once they are broadcast. For playwrights, that first letting go happens when a theater company wants to produce their work and pays them to do it. Sometimes they will love the conclusions reached, other times they may not, but still the work lives in its many iterations. Letting go can produce so much more than tight fisted control.

A very long piece, and I still can't really make out what the author's opinion is, though he seems to be circling some idea of copyright preventing non-playwright theater artists from expressing themselves. In particular, this bit: "It seems disingenuous to expect an artist to approach an author asking to hold their work up as an example of what is wrong with the American theatre. Such an expectation is almost designed to put a particular group beyond any possible reproach and to shut down forms of critical discussion under the aegis of standing for the rights of that same particular group."...

...Comes off as an attack on playwrights as a whole. In no wise have playwrights asked to be considered beyond reproach (or critical discussion). The two issues, which have been conflated, are about respecting the rights of the property owner: the playwright.

The "Mountaintop" casting was something the playwright had the right to address, ask for to be changed, or withdraw her play.

thatswhatshesaid, as a found/derived piece (I thought) fell under the protection of parody or satire. (And "fair use.") Not the same thing at all.

In the beginning was the Word. And in much of theater, it's the playwright who creates the word, from which the production is derived. Continuing to insist that ownership of the work (which is why the Dramatists Guild is a guild and not a union) is unfair to the people who want to interpret isn't an argument that has any basis in fact (or law.)

Please note I do not question the legalities. The law is the law and, for the most part, the law is clear.

What I am interested in here is what might it look like if we push the law (and Mr. Wright's assertions) to their furthest logical extent. Insofar as he places the discussion in the realm of authorial ownership, this is the approach I have taken. And placing playwrights beyond reproach for the exercise of their rights is precisely what Mr. Wright does in his letter.

What concerns me is the ownership regime as it currently exists in contemporary law and practice. It is that ownership culture that opened the way for the bunch of cease and desist letters received by thatswhatshesaid, including the letter received in regards to material that doesn't actually appear in the play.

Essentially, I think the current copyright regime is either approaching or has entered its second watershed, a la Illich. What was once beneficial and healthy for everyone involved is now beginning to show signs of untenability.

I very much appreciate the sentiment of conviviality. This is a basic problem of capitalism. We are not raised to be convivial, but rather competitive. Theatre should be one of the places where we best show how to be convivial. Unfortunately, in my experience its even more competitive than sports teams and leagues, with far less resource sharing or recognition of development or connections between the academy and the industry.

More collective creation can help this and eases the idea of ownership and the strangle it puts on things. And more thought out methods of funding and creation and community involvement are needed as well.

Brad Burgess
Artistic Director
The Living Theatre

Most of the system is set up in a deeply hierarchical pattern, all inherent to Capitalism. I use conviviality in Ivan Illich's very specific meaning, where the people control the tools as opposed to the tools controlling the people. Though collective creation is one remedy, what also interests me is can we find a way into it even for those "traditionally" written plays? As others have pointed out elsewhere, playwriting can be a lonely business, and ownership has provided at least some form of bulwark against the complete sidelining of the author.

Great Article! I have been arguing for a while that we ought to separate a few ideas that seem to get treated as the same when they are not. This one you are hitting dead on - the difference between authors deserving to get paid when their work gets used, and deserving to control _how_ their work gets used. Right now we in the US bundle those, based on our capitalist idea of what it means to "own" something. But we could separate them - making sure that authors make a living, but also making sure that other artists can make the art they want to. The other thing that I want to unbundle is something you glance on in this article: the idea that casting should be done appropriately for non-white-male roles. This is actually two ideas: that only a person of X background can understand what it means to be X, which is a tricky proposition; after all, if that is true, then the audience won't be able to understand unless they already know, so why do the play? But the other reason to cast non-majority actors has nothing to do with artistic considerations, it is purely a matter of fair labor practice. White male neuro-typical actors get the vast majority of the roles, so when you have a lead role where the character is not that, it is unjust to other actors to cast a white male in the role.