This talk was very emotional and, yes, I admit it, choked me up.  Jordan came at the talk from a very emotional place and it was affecting.  I have given two eulogies in my life for grandparents (Ruth Hayes and Frank Warden) and I wrote from a very personal and emotional place and Jordan’s talk hit me right in the same place, so I was quite affected by it.

The story that Jordan tells is of her incredibly strong-willed, strong-spirited grandmother (Mary) whose strength clearly resonates in Jordan.  Jordan’s tale is unfortunately not that unique, as she admits.  My grandmother, Ruth Warden–not Ruth Hayes–grew up on a farm in the great depression and had 10 siblings.  She worked tirelessly herself on farms, in canning factories, and scrubbing floors, and finally as a nurse.  She was a strong woman whose work ethic and practicality make me blush like the girl I am compared with her.  My wife, Kirsten, can tell similar stories of her grandmother.  The early part of the 20th century produced strong women, and men, the likes of which we don’t find too often anymore in our age of entitlement.  I don’t think I ever heard Ruth Warden, my “Meme,” once say the word “owe” as in, “he…she…they… owe me.”  Or “I deserve.”  Whether she thought it or not, I do not know.  But by all signs I would say that she did not.  She simply did what needed to be done.  This, too, is the tale told by Jordan of her grandmother.

The point, and focus, therefore, being as it is on strong women, is that there is an imbalance in the number of women playwrights being produced, especially given the number of women playwrights working, and Jordan sought answers to the “why” of this.  As well, she worked with several other playwrights, including Martha Norman, to establish the Lilly Awards, named after Lillian Hellman, to recognized women in theater.  And yet, as Jordan points out, after all her grandmother went through in her life, the idea that she is complaining that her theater career is not as it should be seems somewhat frivolous.

Jordan notes that was in looking with a friend at the list of plays that were being produced in the upcoming year, and noting that there were less women on that list than the usual “one in five slots to which we were accustomed” that she finally decided to do something.  Jordan says that she firmly believes that if the “production rate had stayed above the 17-20% mark that she would have kept her mouth shut.”

Jordan then listed the common arguments to which she was exposed and to which she often listened:

• That established writers are overwhelmingly male;
• That male artistic directors were just more drawn to male works;
• That male writers write more dramatically, while females write more poetically;
• That drama is more commercial that flowery and poetic script;
• That things will get better in the future when there are more women artistic directors;

The problem for Jordan was that she had been hearing those arguments for years: since she was a student, and now, no longer a student but a teacher at Columbia, and things still had not changed.  Jordan then looked at her 2001 NYSCA report which noted that 17% of productions were by women playwrights and then Jordan examined the TCG list of top ten plays (she refers to it as “most often produced plays”) and noted numbers here, where are unclear to me–17% of first productions and then double that the next year? 34%?  For clarification as to the significance of this discovery, Jordan called her date to her senior year high-school valentine dance, which was Freakonomics author Steven Levitt.  While Levitt told her that she really hadn’t discovered definitive proof of bias in the American theater, as Jordan suggested, he encouraged her to find someone who had a statistical bent to look at the issue more closely.  In the mean time, as she googled about on the subject of bias in the arts, she discovered the study Orchestrating Impartiality by Claudia Goldin and Cecilia Rouse; which found that when orchestra performers auditioned behind screens (blind auditions) the representation of women and minorities in orchestras vastly improved.  So, Jordan found Cecilia and met with her: Emily Sans was guided toward the project as her thesis.  She did three studies:

• Supply (are women present in the same numbers as men?)
• 30% of submissions are women (artistic directors reporting)
• Doolee/TCG — 30% representation
• Tough, because it doesn’t match up with women’s experience.
• Hard also because of the reality, which is making a living as a playwright is hard. Jordan notes that as hard as it is for men to juggle responsibilities and playwriting, it’s harder for women and the attrition rate is higher–less supply.
• Audit study
• 4 scripts read by various artistic directors
• Reported, variously, as authored by men or women
• No bias on subject of excellence with regard to the sex of the individual playwright
• However, Sans did find that women respondents regarding the plays believed there would be:
• Fewer tickets sold
• More negative reviews
• Top talent would be harder to attract
• Artistic directors would not want to produce
• Would not fit with the theater’s mission
• That is, if the script was “penned” by a male, it was not viewed as having these challenges.
• Sans found bias — “A really interesting kind” — “self-fulfilling prophesy” or “women in theater are just reporting honestly what they see and know to be true”.
• Broadway Study
• 10 years of Broadway plays
• Throughout outliers
• Judged plays against plays, musicals against musicals, and one-person shows against one-person shows.
• Shows by women made on average 18% more money, but were subject to shorter runs than shows by men.  This was the strongest evidence of bias in economic terms, because, of course, why would investors willingly cut short runs of plays that are making more money?
• The only way that there is a problem with the study’s judgment is if each show by a woman cost 18% more to mount than did a show by a man.  But, as Jordan pointed out, on average plays produced by women are produced in smaller spaces and have smaller cast sizes than plays by men.

Jordan then goes on to note that women dominate theater in high school and college.  In writing departments their numbers are similar to those of men at the graduate level. Agents rep around 50/50. Theaters state that 30% of scripts are submitted by women, and in turn that theater produce 20% of those scripts.  “That’s what happens to female writers: attrition.”  Jordan then casts the argument and findings in terms of race to highlight the discrepancy and “merit” considerations.

Per my comment above with regard to my Meme, Jordan’s grandmother never complained or bemoaned what had happen to her.  And she won’t complain about her own position.  But all things being equal in any conditions and circumstances, men will do better than women in terms of making a living in the theater, or Jordan suggests, any art: except the orchestra: which holds its auditions behind screens to ensure that the race and gender of the applicant is hidden.
While Jordan notes that the fact that only 1 in 5 women playwrights get produced is a small problem in a small context that many people don’t care about.  But she notes, as given the story and history of her grandmother, that the problem isn’t just in theater: it’s bigger than that and reflects the whole of our society.  Further, Jordan encourages that if it’s our small problem in our small area than it is ours to fix.  And that by fixing it, and putting the stories of more women on the stages “we will help in the best way we can to re-define in the audience’s mind: who, and what women have always been, are, and can be.”

Real People and Musical Scores

Other People's Property

Real People

Using real people in your fiction or playwriting can throw you into a truly tricky environment.  Generally, if the real person you are using as a character is no longer alive, you’re off the hook.  However, this doesn’t mean that you still can’t be sued (of course). One of the stickier points with regard to using a real person, living or deceased, has to do with what are called “publicity rights” or the Right of Publicity. These rights concern the property right that any person exercises over his/her public image.  As a rule, it seems, the intent of using a public figure’s image or likeness has to be purely for commercial purposes in order for a Right of Publicity suit to work. This is to say, that using a real person in a play or fiction is an artistic use of a person and can be held to be an act of speech, which is protected by the First Amendment–which trumps the Right of Publicity. However, if you’re writing copy for a radio advertisement that uses “Heeeeerrre’s Johnny!” as one of the lines, you likely have used the late Johnny Carson’s Right of Publicity, and, as it is a property right, lives beyond his death and his family/estate can sue you for the use of it.

The Right of Publicity is a property right in many states, and the enforcement is left to the statutory definitions passed in the legislature.  The Right of Publicity is not a federal statute, nor is there any such thing as a privacy right or a right of privacy to which to point (legal fiction).  See Griswold v. Connecticut; and Roe v. Wade.

Beyond the question of the Right of Publicity is the question of defamation. There are several factors that must be considered when determining if there is defamation:

• Statement must be untrue
• published to 3 parties (publication)
• must related to a living person (identification)
• lower the reputation of the person (damages)
• knowledge of untruthfulness (malice)

Note that defamation can also apply to a corporation for all of you activist, anti-corporation playwrights out there. 

There is also a thing called defamation per se (false statements that are immediately considered harmful)–saying that an accountant is a thief; saying that a love rival has an STD; suggesting that someone engages in criminal activity; etc.

For clarification (and the record) libel and slander are forms of defamation (libel is published; slander is spoken).

In the talk given by Sevush and Faux, Faux stated adamantly that “dead is good”; that there is no libel or invasion of privacy for deceased people.  Again, you would have to consult the intent and purpose of the work to determine if Right of Publicity concerns rise to the surface.

With regard to well-known or public figures, the so-called “public figure doctrine” applies (from which the phrase “absence of malice” originates). This doctrine states that “prominent public persons must prove actual malice on the part of the news media in order to prevail in a libel lawsuit. Actual malice is the knowledge of falsity or reckless disregard of whether a statement is true or false.” citation So, you can feel  free to use a public figure in your play, but you had better be certain that your intention is not malicious and that your assertions are absolutely true or are likely true given the inference of certain verifiable facts.  That being said, Sevush pointed to a growing trend amongst high-paid lawyers to engage in what is called “venue shopping” for suits.  For instance, the United Kingdom as a far lower threshold for proving defamation than does the United States, so lawyers might sue you in the UK, get the ruling they want, and then seek to have the ruling imposed in the United States. From what Sevush and Faux stated there are efforts underway in the US to stop this sort of activity from occurring; as it undermines US law.

According to Faux and Sevush, these factors regarding Defamation and Right of Publicity make themselves pertinent to you whenever you license a play to a producer.  That is, you often must sign a statement to the effect that you “warrant and represent” that you own the rights to whatever it is you’re publishing or licensing for performance. The contract might also make you “warrant and represent” that there is nothing defamatory in your work.  Sevush cautioned that playwrights should not make “over-broad declarations” in any contract that they sign–nor should you be forced to–for instance, that your play is not obscene.  Sevush noted that obscenity is decided locally and producer has to decide what he/she/they want to produce and where to produce it–NOT THE PLAYWRIGHT.

Again, the discussion of the Rights of Publicity came up, with a few relevant past cases being highlighted — celebrity (pecuniary, name/likeness for commercial purpose)

• vannah white/
• johnny carson and the portable toilet
• tony twist (doe v tci cablevision)

Often the contract that you sign with a producer can be accompanied by E&O Insurance, short for errors and omissions.  Faux and Sevush encouraged that you should ensure that you are included on this insurance policy if a producer gets it.

Found Scores

Should you use music in your play?  If you are, chances point to the fact that you should get permission to do so.

There are several places that you can go to license music:

• ASCAP
• SESAC
• Harry Fox
• BMI
• Warner/Chappell

When it comes to licensing there are small rights and there are grand rights.  Here is a link to a website that outlines some of the rights that pertain to music and performance. According to the website I link to above, small rights are called “nondramatic performance rights;” and grand rights are called “dramatic performance rights”.  Unfortunately, that sounds clearer than it is.  For instance, simply using the song in a play is not in-and-of-itself the “dramatization” of the song, and so may only require “small rights”–as a song is not inherently dramatic.  If, however, you are “dramatizing” the song, you will need to get “grand rights”.  So, if for some reason you decided to make a play out of the song “Me and Bobby McGee” you would have to get “grand rights.”  Grand rights are usually held by the writer of the song.

Faux and Sevush pointed to ASCAP, BMI, and SESAC for small rights.  Faux and Sevush also noted that grand rights can pertain to the whole of a work — but might also qualify if you are using music to advance the plot or character development in your play. Regardless, they both note that you should assume that you should have to get permission.

Grand rights are what playwrights own with regard to their script (use of songs in a narrative or dramatic way).

Sevush and Faux also discussed parody (fair use, valuable form of comment and criticism) on the subject that is being discussed. They pointed to the use of Roy Orbison’s song “Pretty Woman” by 2 Live Crew.

Parody/Satire Distinction

Parody is directly making fun of one thing, but Satire is using one thing to comment on or make fun of something else (Dr Seuss / OJ Case)

Licensing Music for Your Play

Music should be licensed by the producer.  Sevush was careful to point out that if you, as a playwright, are indicating the use of music in your play that you should note the following distinction:

• Use the words, "and then a song like comes on the radio…"  producer pays
• Use the words, "and then Born to Run by Bruce…" comes on the radio playwright pays

One question that I had, which I didn’t get to ask, is what happens when you contact one of these companies on multiple occasions and get no response?  For my part, in my most recent play Patterns, I went right ahead and used the music.  I figured, if some music publisher made a stink about it, I had the multiple unanswered emails to demonstrate that I had made an effort.