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.

The Register denies that stage direction, as presented to the Copyright Office for registration, is copyrightable subject matter…[the] Register properly refused copyright registration for Mr. Rando’s claim concerning stage direction.

So reads a Department of Justice motion from 2007 regarding the claim by a deranged Broadway director and the Society of Stage Directors & Choreographers (SSDC) that the rather common and unoriginal “choreography and pantomime” contributed to a Urinetown production be protected (and hence paid for) by other companies producing a play he happened to work on.

Whose getting Pissed on?

I suppose I am old enough now that I should not be surprised by the depravity of human beings and their actions, but I am continually amazed, newly, again and again, by the lengths that people will go to satisfy their voracious greed.

The case I’m discussing here is another case mentioned by Ralph Sevush when he spoke at the Dramatist Guild National Conference this past week.  It involves cease and desist letters sent to Akron and Chicago theaters producing Urinetown, asserting that John Rando’s rights were being infringed. To my mind, this case is an example of the most egregious and insidious of the SSDC activities.  In fact, if I were a Choreographer in that particular society I would be protesting the activities of the society for even pursuing cases that attempt to inflate the work of some of these directors to that of choreography.  Especially given the list of “creative” additions that this John Rando attempted to copyright:

• Using red scarves pulled from the actors’ pockets when they are shot to signify blood

Really?  That’s your copyrightable creative contribution?  Attempting to copyright a stage action that has been done in countless children’s theater productions, such that the number of scarves could stretch from NY to LA?  Hell, I believe that technique was used in the movie Rosencrantz and Guildenstern Are Dead back in 1990.  God knows, of course, how many years, decades, or centuries it has been used prior to that.

• Using the chorus to march and fight in slow motion for comedic purposes.

??? oh, I get it. ha ha.

• Having the supporting actors follow the lead actor upstage and downstage as he delivers an inspirational speech;

???

• Having a dead character speak when his final words are being communicated by a live character;

Oh, you mean, being theatrical?

• Using blue fabric stretched across the stage to symbolize a river;

Like that’s never been done.

• Using a moveable ladder and rowing gestures by actors to indicate characters rowing a boat.

Really?

I would heartily laugh at all of this if it weren’t for the presumption that Rando and his group of half-wits have actually attempted to place this crap in the legal domain and inhibit the production of a work elsewhere in the country.  In fact, as the article points out, Carousel Theater in Akron has gone out of business and who know to what extent this toxic power grab by John Rando contributed to their demise.  The needless, rapacious, voracious, and greedy lawsuit is precisely the sort of putrid sludge that is destroying this country.  I’d wrap myself in a flag and stand silently, but Rando would probably sue me for infringing on one of his stage pictures.

Now is the time when I disclaim.  I know directing is a creative activity.  I know it requires men and women with tireless energy, commitment, and the ability to marshal a tempestuous collection of variables and make them all cohere.  Many is the director I have watched marveling at their political ability with regard to handling tense and tricky situations, their command ability in getting all the variables to listen and move and perform as instructed.  Many is the director I have admired for his perseverance and fortitude in doing a scene over and over and over.  I understand that a good director can make a show or break one.  I know many directors and have found each of them to be warm, charitable, generous, funny people. People that I like being around. However, all THIS BEING SAID, directors are paid to get a script off a page.  As Sevush explicitly pointed out in his talk, directors are hired by producers to do a job.  THE STAGING of the play is THEIR JOB.

Directors (in this case) are members of a Society that PAYS them, including BENEFITS.  They are immune to the risk that writers necessarily have to take (if I write a script and no one produces it, I just spent a year or more with no result for my work). For this director to seek some sort of creative attachment to a work above and beyond that for which he has been justly compensated is flat out rapacious, unwarranted, and delusional.  It demonstrates concretely that the Tony Award and Broadway compensation was not enough: Rando needed to take from each and every future production of the show, even though he has contributed to that future production nothing, 0, zilch.  Sure, you say, but people at Carousel Dinner Theater go to Urinetown to see the Broadway show, which is Rando’s staging.  Perhaps. I might say, instead, that people go to Carousel to see Urinetown as it was created by Mark Hollmann and Greg Kotis–the LEGITIMATE AUTHORS. Rando may have won the Tony, but his interpretation of Urinetown is only possible by his interpretation of what is ALREADY in the SCRIPT.  And any director has the right to re-create that, only limited by his/her ability.

An even more egregious portion of this story is the suggestion that Rando took elements of his production from original director Joseph McDonnell’s New York Fringe production–thus making Rando a hypocrite.  Further, as Sevush points out, the action by the SSDC is so demonstrably selfish on the part of one person (Rando) that it puts other directors in a position where they will have to fight with him regarding the staging of the same play.  Talk about a vision squarely focused on the “me.”

The original copyright application sent in 2006 by Rando’s representatives “were for the sets, lighting, choreography and ‘stage directions’ for Urinetown.”  One must wonder, by this wording, if Rando wasn’t attempting to copyright the already-created stage directions in the script; perhaps even the set descriptions, presuming they’re in the script–which I would assume they would be.  I would also assume, by this application, that Rando was responsible for the scenic design and light design, otherwise he’s stepping on the territory of other creative artists who are associated with theatrical productions.  One must wonder just how much farther along it would have to go before Rando and the SSDC simply asserted that the whole of Urinetown was infact their creation and idea from start to finish!

Thank God, per the opening, the Copyright Office and the Department of Justice stepped in to say, firmly, that stage directions are not copyrightable.

Stage directions ARE NOT copyrightable.

Let’s all say that a few hundred times together.

Unfortunately, the suits in Akron and Chicago were settled.  That is, they didn’t go to court where a judgment could be reached to become firm precedent. Sevush posits and then answers the terribly depressing question: “Why were they settled?”

Sevush: “As anyone who has ever been involved in a law suit knows, litigants with deep pockets can prolong a court case, whether their position has merit or not.  And they can almost always force a litigant without deep pockets to settle a case which has become, quite simply, too expensive to pursue.”

So everyone send a happy thank you letter to John Rando and the Society of Stage Directors and Choreographers for their embarrassingly unabashed attempt to steal creative content that is not their own, hamstring productions of other people’s work, and for holding up (like highway robbers) productions to which they lay envious claim.