Nourishing the Commons

Rethinking Intellectual Property

It was fun when off-off Broadway was just starting…when I lost all of those playwrights or when we all went wandering away, they stayed with me and just increased and added some of the other ones I respect and I admire. If Sam Shepard discovered something, it belonged to all of us. It was, “Oh good, we can do that, that is possible.” It was very much like we were inventing or discovering theatre for ourselves. If Megan Terry did something or Jean-Claude did something, it belonged to all of us suddenly.  -- Lanford Wilson

Last month, all of my social media accounts were ablaze with the effort of my fellow artists to save the Internet from the existential threat of the Stop Online Piracy Act (SOPA). This bill would’ve empowered the Federal Government to shut down websites accused (but not proven to be engaging in) online piracy, enabled software companies to go after open source developers whose products could be used for piracy, and, thanks to ambiguous language within the bill, paved the way for an internet blacklist not dissimilar to the one China uses to crack down on political dissent. While piracy is a (overstated) problem, SOPA (and its sister bill, PIPA) represented a huge overreach by an Internet-ignorant Congress—several sponsors of the bill violated copyright on their own Congressional websites—and corporate forces determined to maximize profits from their intellectual property holdings.

There is a general sense—both within creative communities and the public at large—that efforts by large corporations to control their intellectual property have gotten out of hand. DRM technology and other anti-piracy tactics treat users as criminals before they’ve done anything wrong. The advent of The Cloud also ushered in a novel time where users own a license to access a work rather than a copy of the work itself. With the rise of remix and mashup culture, we also daily see the benefit of violating existing copyright law and expanding the idea of fair use.

At the same time, we in the theatrical industry have largely either turned a blind eye to or actively encouraged an ever-expanding concept of individual intellectual property. We are comfortable with the idea of looser copyright laws if it means we can watch a reedit of The Shining trailer on YouTube, yet reluctant to give up the idea that creators should have unlimited control over our work forever. We’ll gladly burn copies of The Grey Album for our friends while demanding exclusivity when we option material to adapt it. We love remixes, but we are quick to accuse each other of being derivative. I hope that with the provisional defeat of SOPA and PIPA, we are in a moment where we as an industry can finally question the current copyright and intellectual property regimes under which we labor. We must dream together new systems that encourage creativity and move away from our current privatized, exclusivity-based system.

Congress’s power to set and define copyright comes from the Constitution, Article I, Section Eight. The purpose behind copyright was neither the making of money nor the idea of creative control. Instead, Congress was empowered “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The ideas behind this clause are simple: Allow people to make money off their work for a short time to incentivize invention, but limit that time so that people have to continue creating so past creations can be used by others to spur new innovation. The original term for a copyright set by Congress? Fourteen years, renewable once. Not everyone at the time even pursued copyright. Benjamin Franklin famously refused to patent his inventions, claiming “that as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.”

We’ve come a long way since then. For a work published after 1978, copyright protection lasts the life of the author plus seventy years. For works published between 1922 and 1978 things are a bit more complex, but the rule is generally 95 years after the publication date. If the work is anonymous or made for hire, it lasts either ninety-five years from publication or one-hundred and twenty years from its initial creation, whichever expires first. A thriving public domain—an artistic commons where artists are free to converse with the works of the past—is necessary for the arts to flourish and for the past to be preserved cheaply for the schools and libraries of the future. Thanks to the various copyright extension acts, we are starving this artistic and intellectual commons. Due to the retroactive nature of the Copyright Term Extension Act in 1998, no works will enter the public domain until 2019. Given that the 1998 bill came roughly twenty years after the last copyright extension and that corporations rely more and more on intellectual property for profit, there’s no reason to believe that copyright won’t be extended again prior to the 2019 deadline.  (A partial list of the works that could’ve entered the public domain this year can be found here).

Concurrent with this is a more problematic development for artists. Our output has gone from being our creations to being our intellectual property. Instead of art being a living thing, a thing that we create and whose creation we trace in part to the world (and other artworks) that surround us, and thus give back to the world, what we create is now a house to be protected from thieves and invaders, rigged with alarms and (preferably) surrounded by a moat, forever.

I’m no originalist, and I think it’s long past the time that we should set nostalgia on an ice floe and push it out to sea, but I prefer the original ideas behind copyright to what it has become today. I believe that creators should have some authority over and ability to make money from their creations, I just believe that time (and that authority) should be more strictly limited than it is now. Copyright has gone from something that encouraged creativity to something that restricts it, and it has poisoned our thinking about collaboration and originality along the way.

This shouldn’t surprise us. Ever-expanding intellectual property protections are in the best interests of people seeking to make money, not people seeking to make (or, especially, experience) art. Being unable to use a ubiquitous American icon like Mickey Mouse is of no benefit to visual artists.  It is in no composer’s interest that creative quotation of other people’s work—a frequent practice in classical music—is strictly forbidden under current law, particularly when rights are held by publishing companies rather than the music’s actual writers. In a recent outrageous case, the creator of the character Ghost Rider must account for any money he has made off of selling drawings of his creation, because Marvel, not he, owns the character.

Concurrent with this is a more problematic development for artists. Our output has gone from being our creations to being our intellectual property. Instead of art being a living thing, a thing that we create and whose creation we trace in part to the world (and other artworks) that surround us, and thus give back to the world, what we create is now a house to be protected from thieves and invaders, rigged with alarms and (preferably) surrounded by a moat, forever.

a man looking at the camera
Isaac Butler. Photo by Isaac Butler. 

In theater, things are getting similarly out of hand. We work in a system where we lionize Shakespeare—who lived in a time without copyright, lifted stories wholesale from other sources and likely had uncredited collaborators—while expanding the idea of Intellectual Property to cover not only text but interpretation. Now, directors sue for copyright infringement of their concepts while heirs to various estates limit the range of interpretive choices that productions can make.

The ever-expanding, ever-renewable copyright is part and parcel of a wider problem. Despite the fact that we work in the non-profit sector, and despite our public espousals that theater is a living thing, a process, a mercurial beast that draws its strength from the culture surrounding it and speaks back to that culture, we also treat our work as property to be owned and protected. What is “premieritis” after all, if not a logical outgrowth of the values of ownership, of the idea that something becomes worthwhile only when other people can’t have it?

The recent example of Elevator Repair Service’s Gatz is particularly illustrative of how copyright and the values of exclusive ownership conspire to strangle creativity. ERS adapted a work that would have been in the public domain had the Copyright Term Extension act not passed in 1998 (it will enter the public domain in 2021 and is already there in many other countries). They entered into a multi-year negotiation with the Fitzgerald estate to be able to perform the show in their hometown because a commercial musical of Gatsby was in the works and had an exclusive option on the material in New York. No one was well served by this situation, neither audiences, nor artists, nor the source text itself.

Had the commercial production been a financial success rather than a turkey, Elevator Repair Service’s Gatz would have likely never opened in New York. If the Gatsby musical had toured, there is some chance ERS would have had to stop performing it in the U.S. period. This arrangement may have served the interests of the commercial producers. After all, they would no longer have any competition when it came to Gatsby adaptations. The interests of commercial producers, however,  are not the same as those of artists or the art form in general. Perhaps, as we have different tax regimes for commercial and nonprofit art, we should have different intellectual property regimes as well.

In this time of resource scarcity, it’s tempting to adopt a bunker mentality in which we insist it’s every artist for herself and try with even greater fervency to “protect” our “property.” We must resist this temptation; it flies in the face of our lived experience and runs counter to our art form's history. Almost every playwright I know has a script that’s an adaptation of something in the public domain—generally a story from The Bible, or the Greeks, or Shakespeare or Chekov—while almost every single person reading this has worked on a production of a show that used copyrighted music in its sound design without asking permission or paying royalties. I wouldn’t want to live in a world where only Aeschylus’s The Libation Barrers exists because he sued Sophocles and Euripides over their Electras, or where Peter Brook’s A Midsummer Night’s Dream never happened because some distant heir of Shakespeare’s forbade its radical design scheme. As Outrageous Fortune makes clear, intellectual property is also not where playwrights are actually making their money; the average playwright earns under $40,000 a year, with only 3% of that coming from licensing fees and only 9% coming from production royalties.

I don’t think there’s much we theater artists can do about the legal realities that shape our industry, but it is time to reexamine and reinvent the way we think about the art we make. We must move away from the inaccurate and debilitating image of the writer as sui generis visionary and recognize that our work draws heavily on influence, that the true meaning of originality is in how we approach, arrange, reconfigure, and create out of the materials the world has given us. That our work exists in dialogue with other work, and with the people in our lives. That our work has parents and, hopefully, children.

Theater artists labor in the second oldest written art form in the Western World. Our history is one of the glories of influence, of the artistic and intellectual commons, of seeing works reexamined, reinterpreted, recombined and adapted, often without permission. This makes us uniquely well suited to search out and create new philosophies and industry norms that embrace art as a gift that arises out of our culture and one we, in gratitude, eventually give back.

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Sadly, we have new news about how crappy and antithetical to art our IP regime currently is, as David Adjmi's "3C" gets closed down by a seemingly-spurious copyright claim from Three's Company's producers:

http://www.nytimes.com/2012...

The problem is not copyright in this case, but the uneven playing field. DLT Entertainment has deeper pockets and can "lawyer-up" before trial. the tactic is either sufficiently intimidate Adjmi or to threaten him with bankruptcy over his legal fees before trial so that he accepts an out-of-court settlement in DLT Entertainment's favor-- without a trial on the merits of the case.

If Adjmi's "3C" is as transformative a reworking of the original material as the critics say it is, then were the case to be decided purely on its own merits, Adjmi would win under current copyright law. The disparity here is one between how copyright law works and how the civil court system works. If Adjmi were to get a law firm that specializes in copyright and first amendment law to defend him pro bono, he would have a good chance of winning.

Not to be crass or 'commercial' sounding, but so much of this argument and concern is rooted in the fact that (see OUTRAGEOUS FORTUNE, etc) playwrights and other theatre artists are making so little money from their work as it is that it's hard to tell them that they should just suck it up when other folks take their work and go make money off of it.

Be it a script or someone's direction or choreography - whatever - if you've put blood, sweat and tears into your creation for $5, and then someone replicates/duplicates/rips off/etc your work - especially in some commercial operation that makes more money - it feels very unfair and like you should be entitled to some 'royalty' on that sold product.

If you want to use someone else's material in your work, you should pay them for it. That makes it very straightforward and easy - except that the whole ecosystem is so cash-poor that taking your $5 you'll make and divvying it up to 18 other folks you've pulled from takes your take-home pay down to $.02 or less.

Which really, begs the uber-question of whether playwrights and theatre artists generally are really 'professionals' (making their living) or hobbyists. If they're hobbyists at every level, then pay isn't important and everyone should just share everything for the benefit of the artform and creative process. But if we value compensation and artists' standard of living, then there must be reasonable respect and accommodation for using someone else's work to make money.

Thank you for the essay, Isaac.

At one point you wrote: "I don't think there's much we theater artists can do about the legal realities that shape our industry...."

Why not? Certainly, if only a dozen or 25 of us were to try to change these laws, we would not be successful. But if there were hundreds, thousands, throughout the United States? I think then we could see some tangible change begin to occur. Put the principle and the idea into action.

And what about actors and directors and an excellent dramaturg being part of the writing? Working early on with Lanford Wilson and Marshall Mason I learned how closely the writer in the room listened to actors. In contemporary (or late 19th century) theater I'd say, from my fortunate theater experiences, that what developed was an embracing of blurred lines between the writer director and actors creating the narrative, typified by the Open Theater's The Serpent with director, Joseph Chaiken, writer, Jean Claude Van Italie and the original acting company. It was the seminal theater culture of the time influenced by jazz. Yes, that culture has changed, and questions of ownership impacted by charged senses of power relationships and the sampling culture facilitated by the net. The earlier culture happened in rooms with voices and discussions which were generative in many cases for the writers. Nothing new of course. The late beloved theater educator, poet, and director, Omar Shapli, imagined something likewise happened among the early Folger actors. Perhaps questions around who wrote Shakespeare's plays reflect such practices. In the early 90's some years before The Laramie Project, I shaped in different cities, community interviews and script shaping to make work on racial dialogues (-- a whole other discussion re: the popularity of subject matter.) I used the phrase, 'in collaboration with', as did Kaufman, which seems fit for some scripts. Participants have not raised questions of ownership, but this discussion presents with me with an ethical dilemma. And resistance to doing business I hate having to do. What if the scripts are published? In those early New York off off Broadway days, there was little or no concern with the categories of credit.

Appropos of comments about the benefit of patents expiring and generic drugs: __ http://www.nytimes.com/2012... __ "Across the country, dozens of lawsuits against generic pharmaceutical companies are being dismissed because of a Supreme Court decision last year that said the companies did not have control over what their labels said and therefore could not be sued for failing to alert patients about the risks of taking their drugs. __ Now, what once seemed like a trivial detail — whether to take a generic or brand-name drug — has become the deciding factor in whether a patient can seek legal recourse from a drug company."

Just an interesting aside to Isaac's comments about the cost of dealing with lawsuits: the copyright office recently did some research and wrote a paper on the challenge of small copyright claims -- i.e. claims where there is not enough money at stake to justify the costs involved in bringing the federal court claim. One of the suggestions that the copyright office had was to establish some type of a small claims court for copyright claims. There are no plans, as of now, to create that small claims system, but perhaps sometime.

Louise,

Real quick follow up here:No problem on the spelling. I understand the difficulties with dictation software. (This also explains this odd ___ thing that keeps cropping up).

Alright, perhaps i should've written intellectual property protection rather than copyright with the Ben Franklin quote, but as I said before, the issues here-- treating ones ideas as property-- are interrelated. You are right that the piece doesn't propose specific solutions. That is because the essay is explicitly framed as an invitation to begin a broader conversaiton. To whit:

"We must dream together new systems that encourage creativity and move away from our current privatized, exclusivity-based system."

Or the piece's final paragraph. Polly and I have talked tentatively about doing a follow up piece in which some ideas are laid out, but I was hoping to just open some doors and see what people thought here.

To address the lawsuit thing real quick: The switftness with which lawsuits are brought in with regard to issues of intellectual property is a major problem for most creative industries. Given that "Fair Use" is decided on a case by case basis by judges and that people often cannot handle the cost of the lawsuit, the problem is not simply that people are abusing the system. The problem is the system is set up to encourage abuse. No one wants to get sued or to go through the major cost of dealing with lawsuits, and so they settle out of court, thereby creating incentive for people to sue again.

As to your last sentence, I think Im in agreement in general. My point is that the gift aspect and the property aspect of a work of art are in tension, and our current way of thinking about things weighs the latter aspect too heavily and that this in turn is reflected in industry practices like premieritis that do not on their face appear directly liked with things like how long a copyright lasts for.

Anyway, Im starting to rephrase and rewrite the entire essay. Which I already spent time writing. So that is a pretty good sign that I need to sign off. Nice talking/writing with you.

Isaac -- I put in the '__ symbols to make visual breaks in what I'm writing, because this commenting system apparently doesn't respect paragraph breaks people put in their comments. __ I look forward to your article. __ One more point -- the Cloud is not a totally new phenomenon. Time-sharing computers operated similarly, in the sense that you didn't own the software you ran, it was stored on the mainframe and could be run by different users by license. Also, your files were stored on the mainframe.

Hey Louise,

In my time I've actually done quite a bit of research into IP and copyright issues (as well as the cause that generally gets called the "Copyleft") and I try to link to a couple of accessible sources for readers within the piece. Additionally, Polly Carl, who edited this essay, is quite familiar with the issues and legalities involved.

I think you might be reacting to the fact that certain aspects of essay are written in a little bit of a shorthand (this is also a blog post, not a white paper) which is why you don't get a long disquisition on how Mickey Mouse is actually a trademark and how its a little bit different but still philosophically linked and why i don't get into patent law or anything like that. The actual goal of this essay was to talk about intellectual property a bit more conceptually, which I why I move through that stuff swiftly. Besides, that ground has been covered very well by Lawrence Lessig (http://creativecommons.org/... and Jonathan Lethem (http://www.harpers.org/arch... and Cory Doctorow and a whole host of others. (BTW: If you haven't read it, I can't recommend the Lethem article highly enough.)

While this post talks about IP law and policy a bit, in other words, I'm far more interested in using that as necessary background for discussing the difference between treating our art as a gift vs. treating it as a property and what that means for our work, our collaborations, our freedom to interpret texts on stage, our concepts of originality, what we value as a society etc. And I'm trying to do that and give a brief copyright overview in under 1500 words, so theres some vagueness/generality that creeps in as a result.

My guess is also that some of the things you ascribe to my misunderstanding are actually things we disagree on. For example, in an earlier comment, you mention that (to you) the problems aren't with intellectual property per se but with who holds intellectual property rights. I disagree. I don't think this is about a few bad apples. It's about a system that's lost its way and no longer functions in way designed to encourage and enable creativity. That said, I am not for-- and have never said I was for-- getting rid of all protection for a creator's work. My interest is just in getting people to rethink the current way we do this. I'm a reformer, not a revolutionary, in other words.

Cheers,

Isaac

PS: BTW, it's spelled with one "s" and two "a"s, just for future dialogue.

Isaac:

The problem is that for those of us who are somewhat versed on intellectual property law (even as an educated lay person like myself) are very unclear what it is you are advocating. While I certainly agree that the prolonged corporate ownership of culture (as symbolized by Mickey Mouse or the Island Records v. Negativland case) and the exploitative nature of work-for-hire (as symbolized by the way many of the creators of cherished figures like Superman were left with nothing to pass on to their heirs) are disturbing. But at the same time, not only are you not suggesting any remedy to these problems, you aren't explaining how current intellectual property laws are stifling artistic expression in the new play sector. So again, I'm going to ask: how do Tony Kushner's intellectual property rights to "Angels In America" (or say, the Thorton Wilder estates rights to "Skin Of Our Teeth" if you want something older) infringe on my artistic freedom as a less-established playwright? Because I have been asking this question since you posted this article and neither you, nor anyone else, has suggested a scenario that explains why this debate is relevant to the new play sector in the same manner that it might be relevant to cartoonists or musicians who specialize in remixes or sound collage.

That's my frustration with this article, and I imagine, the frustration that both Vincent and Louise have been articulating.

Isaac -- First, sorry about the misspelling of your name -- apparently my dictation software doesn't spell it right. __ I said that *some* of the problems you mentioned aren't problems with intellectual property per se, but problems with who holds intellectual property rights. Not that *all* of them are. __ Also, you can't make your points effectively if you don't write like you understand the issues and the law correctly. For example, "Not everyone at the time even pursued copyright. Benjamin Franklin famously refused to patent his inventions..." Copyright and patent rights are two different kinds of intellectual property. "Now, directors sue for copyright infringement of their concepts..." You can *sue* for just about anything. Whether your suit has any merit is a totally different issue. These problems you could have fixed and still stayed within your word limit. __ I agree with Ian, I'm not sure what you're advocating as a solution. If you're interested in the difference between treating our art as a gift vs. treating it as a property, what do you see as the solution? __ Also, my art is a gift, *and* what I create with my art (the art I create) is my property. The two aren't mutually exclusive.

Issac, overall you make great points, but there are so many things you misunderstand about intellectual property. You could make your points much better if you did some more research on intellectual property. __ In any case, ever since I took an intellectual property law course in 1999, I have believed that copyright protection be shorter.

What does an artist have but his trade? The great-grandchildren of Henry Ford still have stock in the company. No one said "Henry Ford is dead, now his work is for everyone". James Joyce had a wife and children. Should they have been denied the proceeds from Joyce's work after he died in 1941? They never lived in the luxury that the Fords could have, but eventually his works gave them a reasonably comfortable life they would not have had otherwise. Shall we dispute this? Shall we say to artists "make your money quick and invest it, otherwise we will take it all away soon"? On 1 Jan 2012, James Joyce's work was released into the public domain. It can now be "mashed up" as much as anyone wants.

Vincent, Henry Ford's patents did, indeed, expire after a certain term. Anyone could then make use of his inventions without having to pay licensing fees. So why shouldn't copyright also expire? __ Having stock in a company is different from owning intellectual property. Just because Henry Ford's great-grandchildren own stock doesn't mean they own (or ever owned) any of Ford's intellectual property (his personally, or his company's).

The analogy to patents is a good one. Read my post again - I am not arguing for copyright to never expire. I am saying that it makes no sense to expire the copyright because the creator has died (or even before). It ignores a raft of other issues. Three points: 1. Copyright protects the reputation of a work as well as the revenue stream. If anybody takes a work that became famous recently and changes it how they like, it can certainly affect that work's perception. If everybody starts using Mickey Mouse because he is such an 'icon', it will dilute his icon status and any work relying on that status will be rendered less meaningful. 2. When a patent expires, other companies can use that concept and expand on it, or in the case of drugs, make cheaper versions because they do not have the overhead of development costs. What do we get when copyright expires? Cheaper printed novels, maybe. But when you speak of, say, a musical based on The Great Gatsby, ask why - why that work. The story isn't unique. Fitzgerald didn't write it as a musical. Similar characters exist all over literature. So why Great Gatsby? To piggyback on its reputation. To draw in people who like GG; probably people who would not have attended otherwise. To compensate for the paucity of imagination on the part of the "creators". 3. Patents are used to create and sell things and make money. The money lives on after the patents expire. And there are plenty of billionaires who never invented anything or own any patents at all. They will pass their money down for generation. What's my point? Intellectual Property is vastly more important to artists than others. Artists are rarely good businessmen, and good businessmen are rarely artists. Why remove this one protection prematurely? Well, Isaac says "intellectual property is also not where playwrights are actually making their money". This is a poor argument for radically changing the concept of intellectual property. Joyce published his last novel, Finnegan's Wake, two years before he died. Artists don't work on quarterly profit reports and meeting the Street's expectations. Their work may go unappreciated until after the end of their life. Is the abuse of copyright by corporations really addressed best by changing copyright law?

Vincent, I think you are correct that intellectual property rights are often the only legal protection artists can count upon in a society that is not always friendly to artists-- furthermore, weakening those rights, as Isaac and others have suggested, would actually make artists more subject to exploitation. This is why I raised the specter of how, under a weakened notion of intellectual property, HBO might have been able to make an "Angels In America" miniseries without any involvement from Tony Kushner had they so chosen. As to Mickey Mouse: the figure is so iconic, that it is easy to create a recognizable "lawyer-friendly" pastiche that in the hand of a good artist could be used in an artistically valid manner.

Vincent, about 1: patent laws can also protect the reputation of the invention or process. An invention or process can get a good or bad reputation in the marketplace. A patent allows the patent holder to restrict others from using the invention or process. My father had a number of patents, both in his own name and in his company's name, so I have first-hand experience with this. So copyright isn't unique in that regard, and that's no basis for saying it's different. __ Also, Mickey Mouse is a trademark; there are different laws covering trade marks. __ 2: You can easily argue that patent expiration also compensates for the paucity of imagination on the part of inventors. A patent expires, and anyone can use the invention or process described in the patent without having done any work to create it. Again, this doesn't prove that copyright is different from patents. __ 3: Patents are used to give the patent holder the legal right to prevent others from using the invention or process that's been patented. They don't create anything or sell anything, and a patent holder doesn't have to make money from what he or she has patented. __ All money lives on; J.K. Rowling's money, for example, will live on even if her rights to her Harry Potter books lasted only as long as patent rights. __ If artists are poor businesspeople, that's no argument for copyright lasting a long time. That's like saying that if Patent X generates Y amount of money in a certain time, and Patent Z makes only half that amount of money, Patent Z should last twice as long. If artists are poor business people, artists should become better business people. Plenty of patent holders are bad business people. Having a patent isn't any guarantee of success. __ You sound like you have a good everyday knowledge of intellectual property law, but the actual law is more complicated. Issac Butler also doesn't have a good grasp of the law. __ I agree that if someone creates something that can benefit him or her, that someone should have exclusive rights to keep others from benefitting it *for a limited time.* Some of the problems Issac talks about aren't problems with intellectual property per se, but problems with who holds intellectual property rights.

Since we are getting into a cavilling spiral here, I will say this. My first point had nothing to do with copyrights versus patents. It addressed the folly of expiring a work of 'intellectual property' based on the death of the creator. Applies equally to patents and copyrights. The second point addresses the utility of expiring a copyright or patent. I do not value nearly as highly as some commenters do the contributions of "artists" who take the work of original artists and redo it. "That's like saying that if Patent X generates Y amount of money in a certain time, and Patent Z makes only half that amount of money, Patent Z should last twice as long." I said nothing like that. Nothing. Not even close. You "remixed" my comment. "If artists are poor business people, artists should become better business people. " Oh, I love this comment! If you can't beat them, join them. Brilliant. Rowling is a billion dollar corporation, opening a Harry Potter them park soon. Very representative example you chose there. "Having a patent isn't any guarantee of success." Neither is a copyright - does that justify a quick(er) termination of it? "Some of the problems Issac talks about aren't problems with intellectual property per se, but problems with who holds intellectual property rights." Correct, and this tacitly acknowledges my point made earlier: Is the abuse of copyright by corporations really addressed best by changing copyright law? Finally, as to the matter of credentials, unless you are a lawyer you have no more credibility than anyone else in this discussion. There is no point in saying that matters are "more subtle"; of course they are. This isn't a scholarly discussion (obviously) and you have no more claim to subtlety than anyone else. Oh, and one last point: in the days of mainframes there were no PCs, everyone had dumb terminals attached to the mainframe. The analogy would be more apt to several monitors and user logins tied to a single PC. A subtle point...

I couldn't be bothered to come up with an original idea for a comment so I just figured I would remix and rehash and restuff and rewrite other people's stuff - like your post, Isaac.

Corporate forces determined to maximize profits from their intellectual property holdings - because freedom isn't free, and the rights of people like AT&T, Exxon, and yes, our dear departed Enron, must be constantly protected. We are comfortable with the idea of looser copyright laws if it means we can watch a reedit of The Shining trailer on YouTube. We love remixes, but we are quick to accuse each other of being derivative. We have all been to China and interviewed Foxconn workers who have been poisoned, and sat in on meetings with Rumsfeld and Cheney where Stuff Happened. We’ve come a long way since then. The important thing to remember is that it is perfectly acceptable to put copyrighted work into the hands of people you don't know because, well, because they are creative. I wouldn't call this plagiarism, but it's not what I call journalism. Being unable to use a ubiquitous American icon like Mickey Mouse is of no benefit to artists who can't come up with their own ideas. It isn't plagiarism, it isn't theft. But it is lazy.

Remember, you said some of this stuff. Don't blame me if people get the wrong idea - I'm just the creative remixer/rehasher.

Vincent, what have you against lazy playwrights who for the most part cannot bother to articulate a case as to why the "fair-use" provisions of copyright law does not give them sufficient license to build upon recent works by recent or contemporary not-so-lazy playwrights, let alone actually conceive of a play that does not go well beyond the "fair-use" provisions of copyright.

I'm using sarcasm to make a point about how no one has made the case that theatre artists (especially playwrights) need copyright laws to be curtailed beyond current "fair-use" provisions in order to make artistically valid statements. I certainly subscribe to the notion that great artists steal (at least in the figurative sense), but theft alone does not make one a great artist.

Hi Isaac,

I’m not reading your valuable piece as a cry for plagiarism or against stealing others’ work and presenting it as your own.

Of course, we’ve all been influenced by and draw from old work and each others' work. Tony Kushner was deeply influenced by Caryl Churchill, as she was influenced by Off-off Broadway in the ‘60’s, the Open Theatre and Café Cino—I think—and of course Sam Shepard was there along with Lanford Wilson, Megan Terry, Irene Fornes…and almost everyone was deeply influenced by Brecht. I don’t think that Lanford’s statement that you quote means that they shared credit or subsidies, but that they were influenced by each other’s discoveries.

In my opinion, not being allowed to perform a theatrical piece using The Great Gatsby is silly. Rendering, adapting, mashing up classic texts can make wonderful theatre and can connect us with the past while making something new. And using “found material”—like parts of someone’s essay and pieces of blogs and beauty magazines, etc.—to make a theatrical collage or to create vivid interruptions or commentary or texture in a play, as long as you reference your sources, can make dynamic theatre. Of course these are old practices in theatre as well as in all the arts.

All art is somehow responding to other art and to life. I’m a bit confused if a play that I wrote twenty years ago, where I spent many months or years making something—yes, me, just me, with the ghosts of many others in the room with me--should be allowed to be taken, changed, improved. Wait til I’m dead! But of course each production brings its own group of collaborators and they create the play anew.

Hey Kathleen,

First off, its great to see you commenting here, since we can't just run into each other on the street anymore. I'm especially touched, as I recently mentioned your play MEMORY HOUSE in the context of plays about motherhood over at my blog.

Anyway, I want to clear up a misunderstanding. I am NOT in favor of doing away with copyright all together. I never say that and I don't believe that's a good idea. I am for expanding the territory of fair use, coming up with innovative copyright arrangements like the Creative Commons License and for shortening the term copyright currently lasts. I tried to stay away from super-specific proposals within this post because I'm more interested in talking about principles and concepts, in providing some additional ideas for an ongoing conversation.

I think it's worth all of us getting together and thinking about (amongst other things) how long we actually want copyright to last for. You mention that copyright lasting for the life of an author makes a lot of sense. It makes a lot of sense to me too (I vacillate between life and thirty years). Believing that copyright on a work should perish with its owners-- a fairly common sense position, if you ask me-- puts you (and me) squarely against the current political establishment opinion on this issue, which wants to see copyright maintained and expanded for as long as possible.

Isaac, I don't think you manage to articulate anywhere in this essay why the "fair-use" provisions do not grant playwrights sufficient license when using pre-existing work nor do you give an example of artistically valid theatrical work that has been suppressed due to copyright law, nor do you even mention Creative Commons Licensing anywhere in your essay. Furthermore, given our shared interest in the comic book medium, might I not remind you that Alan Moore and Kevin O'Neil's "League of Extraordinary Gentlemen" has managed to be both critically acclaimed and commercially successful while making use of a large cast of characters both covered by the public domain and by copyright without running afoul of copyright law.

Plagiarism should not be confused with derivative works that give appropriate attribution and credit to the original author and to the person who had the "original" idea. Ideas are not copyrightable although passing off someone else's idea as your own is plagiarism. As for the notion that fair use allows for the necessary and fair ways to use a playwright's work, determining whether a use is "fair use," is oftentimes problematic -- a judgment call that can either end up in a copyright infringement lawsuit or conversely have a chilling effect on the proposed use.

Isaac: when you were attending Vassar, was plagiarism acceptable practice for students? Now that you teach (I know you were teaching college a couple of years ago, I presume you still do) do you give credit for plagiarized works? Can your students use the "mash-up" defense if their authorship is contested?

Upon further reflection, the theatre may be the least creative of the arts - at least, in terms of content.

"We must move away from the inaccurate and debilitating image of the writer as sui generis visionary and recognize that our work draws heavily on influence"

What a depressing thought. And probably quite true. Playwrights are thought of as mere technicians - "here's a commission - write about what we tell you" or "adapt this person's novel or movie". Creativity is being defined in the presentation - the "mashup", the "remix", the various unconventional production techniques. Creativity in the content? No thank you, this is the theatre. We let other people do our thinking.

Ian -- Thank you for your comment. I am taking this opportunity on HowlRound to brainstorm ways to tweak the copyright law to make it work better -- especially small local theaters. I would think that if my suggestion ever actually got some traction, it would also have movie adaptations (including HBO, etc) fall into the exception category. Just for the sake of discussion, if copyright is for a limited time (and one that lasts beyond the lifetime of the author) at some point in time, the author is always going to be entirely out of the process. The actual time period seems somewhat arbitrary. The free exchange of ideas -- including, arguably, bad ideas and bad adaptations, is at the heart of the First Amendment. Copyright is an exception, for a limited period of time, to our First Amendment rights; fair use addresses that issue, in part, but only in part.

My question then is, as a playwright, what usage must I make of other playwright's works that isn't already covered by already existing fair-use practices? I use the example of "Angels in America" because it is a relatively recent work that is generally regarded as a classic-- certainly it is acceptable for me to write a play that makes allusions to AiA, certainly it is acceptable for me to imitate the structure, or use some of the same imagery, or refer to the same historical events, but should I be allowed to copy the story line wholesale? Should I be allowed to present a version which cuts narrative elements that don't interest me with or without replacing them with my own material? Should I be able to then just do this with my own name as the author? Should Kushner not have recourse to intellectual property rights for his hard work? My latter examples would generally be seen as plagiarism in every other genre of writing, why should playwrights not be protected on that front?

What if the licensing mechanism for plays was similar to that for music -- i.e., a compulsory license (with a few exceptions -- a Broadway production being one of them). Within that framework of compulsory licensing, have a period of time (I would think 10-15 years) during which no derivative works could be made without specific permission; this would allow a new play to establish itself. After that restricted period, if you choose to make changes in the script or other derivative works, the credit line would be required to note something like "adapted from . . . ."

Is American theatre really losing out because I can't just adapt "Angels in America" and present myself as the primary author? I support "fair-use": making commentary, satirizing, or making parody of an established work, but unless this is something that the original author opts into out of his or her own free will, Dan Ellison's suggestion is one that rewards parasitical relationships between authors and "adapators." Because by the 10-15 year standard, HBO could have chosen to lock Kushner out of the process entirely and hired a mediocre talent to write the television adaption. I'm terribly disappointed that artists are more interested in finding new ways to exploit other artists then collectively empower artists as a class of workers.

The problem is not copyright per se but the enforcement of it, which mainly is done by and for large copyright holding corporations. (Of course, "corporations are people" in the US these days...) I don't see big problems with restricting people from using existing works as platforms. The Great Gatsby has a certain reputation as a novel - a good reputation - and it should be protected. Why can't ERS come up with their own ideas, or base their work on a public domain work? They want to build on the reputation of a work they did not create, and their interpretation may distort the perception of The Great Gatsby. Another question is why are we defining creativity in terms of taking someone else's work and changing it? "the true meaning of originality is in how we approach, arrange, reconfigure, and create out of the materials the world has given us." That's quite true - the materials the WORLD has given us, not other artists. In the fight against money-grubbing giant corporations, don't throw out the protections for artists.

So copyleft may be particularly effective for theatre as political statement. But the question is: how viable is it as a means of advancing playwriting as an artform? That's the argument that's not being made here. Sure, Charles Mee copylefts his plays under a Creative Commons License (that allows him to retain some rights) but its part of his aesthetic to build his plays from pre-existing texts-- but I'm not convinced that model should be the norm. There have been numerous artistic triumphs in the field of playwriting that were made under some recent variant of the current copyright regime. Do we really need a "remixed" version of Angels In America whose redactor has decided that all the material about Mormons, Chernobyl, and angels is extraneous? Should Tony Kushner simply accept such a "remix"? Using examples from completely different fields of popular culture, notably corporate owned characters like Ghost Rider and Mickey Mouse doesn't help because they are the product of a completely different industry.

Hmmm -- and I thought the two prime examples of current plays in copyleft -- Churchill's Seven Jewish Children and Daisey's The Agony and The Ecstasy of Steve Jobs -- would have been mentioned by now. Both were opened up for performance and copying as political statements -- is that the difference, that the idea transcends property concerns?

Thanks, Isaac, for a good overview. I think it works best just as an invitation to think.

A key issue underplayed is that copyright only protects the fixed work and prohibits only a significant copy; we're all still free to be inspired by new ideas and further them as long as we don't copy things too closely. When estates and corporations try to claim more, artists need to stand against them. (And smart, sympathetic lawyers need to help.)

I believe the more central concern remains one of power/control. As our ability to make and share copies has increased, our ability to control work evaporates. Maybe that's worth celebrating. But the inequality of power between, say, a small not-for-profit ensemble in the Midwest and a multinational distribution-savvy corporation means that a brief term for protection will simply have Sony and Disney wait out the five/ten/fifteen years of the creator's control before they release the blockboster mass-market version of a work--and rarely paying a creator for something before that time.

Guys, I really don't see how Isaac is advocating (or even really talking about) playwrights giving up exclusive rights as much as starting a conversation about how open-access, copyleft ideas might work (and have, in the past, worked) in theatre. The larger, underlying questions are really about the nature of collaboration and how that functions in a system where one person is deemed the "creator" of a work. (The Gary Friedrich example is actually a good one for that, since, by all accounts, the creation of Ghost Rider was the work of several people, all working under contract to a corporate entity, as work for hire. It wasn't really a matter of copyright, in the terms of what Isaac is talking about, but of who gets to claim "I created Ghost Rider.")

It would actually help playwrights quite a lot to have the rules of collaboration and inspiriation loosened a bit. If I could adapt a play from twenty years ago more easily, or use chunks of a text or film in my work without worrying about being sued, wouldn't that open up possibilities for me? Artistic avenues that are currently closed to me? Shakespeare (not to mention the Greeks) did more than work with old, historical texts. Some of their work was with very contemporary material, and not all of it was simple or pretty. But that freedom allowed them greater artistic license.

This piece is less a work of "playwrights, go and do likewise," and more of a "playwright, maybe you should think about this." Don't you think?

There are playwrights today who give up their copyright for their work, and get paid well for it and get benefits. They're called screenwriters.

If screenwriters who participate in that system still use agents and management systems that protect their plays' copyrights, what does that tell us about the desirability of putting a body of playscript work into Creative Commons?

Ralph,

There is no solution that does not create its own problems. That is not in and of itself a reason to eschew rethinking debilitating paradigms.

But to follow up Ralph's point, to suggest a model that has already shown itself to be damaging to writers within the theatrical community without suggesting a manner in which the potential negative impact can be lessened doesn't help. There is a huge difference between foreseeable and unforeseeable problems. I certainly see a legitimate argument being made for why SOPA, PIPA, and the "Mickey Mouse" Copyright Extension go too far-- but I don't see you proposing anything that would actually help playwrights. Should playwrights feel solidarity with Elevator Repair Service because they wanted to do "Gatz" without clearing it with the Fitzgerald Estate? ERS' founders have specifically stated that their preference for non-theatrical texts is because they find dealing with living playwrights to be too burdensome.

Certainly, we have to rethink intellectual property given recent technological changes, but I'm not sure how the historical examples are very good models. Aeschylus couldn't have sued Sophocles or Euripides under current copyright law since they were all drawing upon myths that were effectively already part of the "public domain" of Hellenic culture. Shakespeare may have taken most of his plots from other sources, but a.) some of those sources were historical; b.) some were stories so old that they would have fallen into public domain anyway even under our 21st century laws; and c.) Printing presses were so few and so regulated, that authorized editions were still profitable. Ralph Lewis also has a point about how friendships can easily be wrecked from "who-stole-what-from-whom" disputes, especially when only one or two whos experience a modicum of success. And while in a moral world, Gary Friedrich would get a share of the revenue from the Ghost Rider franchise he created, the mainstream comic book industry is a remarkably exploitative one-- that story is an argument as to why playwrights should hold on to their rights, not give them up.

While the Lanford quote is very cool, it is also true that some of the playwrights from that era still do not speak to one another to this day, because of who-stole-what-from-whom disputes. And, Robert Dada who rescued Dames at Sea from a trash can, and made it a hit a Cafe Cino, was completely screwed by future productions. So, while I appreciate how well this article highlights an important issue, I'm not sure the prescription cures the disease without just creating others.

I agree in some aspects to what he is saying but what he refuses to acknowledge is the exploitation of authorship by the corporations.There are actual laws regarding such works as transformative , or parody- but when a corporation uses artistic expression for financial gain- it actually DILUTES CULTURE_ !! That is why we are in a NATION OF SNOOKIES

I did not interpret the article as suggesting to artists the 'giving up' of their copyright, but revisioning and restructuring its form. I enjoyed reading this thought provoking, carefully written, sometimes challenging, inclusively spirited, and often eloquent article. Thanks Iasaac.

Artists have all sorts of have the ability to opt out of copyright as it is currently defined in either Europe or America: there are several levels of Creative Commons licensing. There is also nothing preventing you or I from releasing our work under those licenses or switching our work to a less restrictive license or even releasing such work to the public domain. Copyright law also allows for derivative work that substantially reworks the original source material in terms of parody, collage, commentary (the only problem is when the copyright holder is a corporate giant that can win simply by outspending on legal expenses as with the infamous Island Records v. Negativland case.) So I'm not clear what you're offering artists in return for giving up their copyright.