Real People and Musical Scores

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.

So, Molly Smith was the Keynote speaker at the Dramatists Guild tonight, and never, I think, have I heard/seen a more appropriate choice for a keynote speaker in terms of setting the tone.

I feel compelled, immediately, to discuss Mike Daisey and his explosive article on how Resident Theaters failed America. A year or so ago I brought up Mike Daisey at a Dramatist Guild meeting at the Cleveland Play House–which was boasting about its “innovative” adaptation approach to “theater”. I think Michael Bloom’s head nearly exploded when I suggested that adaptations weren’t real theater.

Molly Smith’s talk goes directly to the heart of this. Smith, at Arena Stage, has turned the “theater” into a “center” that addresses her “four pillars”: production, presentation, development, and study of American Theater. This is more than talk. When Gary Garrison introduced Smith, he noted that Arena Stage has started a new program (New Play Institute) that provides 3 playwrights with 3 years at Arena at Full Salary, Full Medical Benefits, an Office, Travel Expenses, and 1 Full Production. Smith immediately corrected Garrison to note that now it is 5 playwrights. Thunderous applause followed.

Let me be clear. Daisey’s argument in How Theater Failed America is that the whole point of Resident Theaters was to SUPPORT theater artists. To provide a living to playwrights, actors, directors, and other technical stage personnel instead of what has happened: a steady stream of support to Artistic Directors, Marketing personnel, Development Officers and staff, etc; while theater artists have been designated as expendable and thrown aside. Case in point, the Cleveland Play House now makes the majority of its season’s productions Adaptations of works by “popular” or “long dead” writers. Then it adds some “classic” plays. In the past few years it has expanded to “Fusion Fest” which may be considered new theater, but, it pales in comparison to Cleveland Public Theatre, for instance, which is dedicating itself to a complete process of staging new works by local playwrights–such as Eric Coble‘s My Barking Dog. The question might legitimately be asked, why hasn’t the Playhouse given Eric Coble and Eric Schmiedl and others the 3 year salary and 3 year health benefits and 1 guaranteed main stage production? Where is the Play House in the innovation game that Arena Stage clearly is marking out? Arena worked with the Mellon Foundation to get it done and support the artists in its community, and it aims to go national with it.

I’m no fool. I have a certificate in Nonprofit Management from the Mandel Center at Case. I know you need Artistic Directors to provide charismatic leadership; Marketing people to develop your targets and “offerings”; and Development officers to keep in touch with $$ in the community. But somewhere along the line too many theaters got far too caught up in this aspect of the “corporation” and lost sight of the actual reason for their existence.

Thank God Molly Smith has come along to provide clear and refreshingly committed energy to theaters and their commitment to their artists.

Smith is no fool. She understands the necessity of a variety of offerings: Classic theater for audiences that expect O’Neill and Williams and so on; Musical theater for those who want relief from thoughtful anything when it comes to theater entertainment; and new voices for those who are more daring in their palettes. She has worked at the Shaw Festival in Ontario, for instance, and knows assuredly the value of the “marketing mix.” But she hasn’t let that kill her vision of the place of the modern artists in the equation–and God bless her for it.

Smith received constant applause and a standing ovation for her keynote, as she well-deserved, for saying what to my mind should be a basic truth: playwrights provide value to our culture: not through simple “civilizing” of theater-goers, nor through new, modern approaches of “engines for economic development”, but as forces for empathy and understanding in a world that is becoming more and more detached, impersonal, and removed in its day-to-day human interactions.

Smith, equally, pointed out that Theaters as organizations deserve loyalty from those whom they helped. Smith posited the question of what would have happened to Florida Stage had every writer and actor who had his/her start at that theater come to the aid of that theater in its time of need? As artists we are obligated to our theaters and theater communities just as much as we insist that our theaters are obligated to us.

In another fascinating moment, Smith pointed to a resource or experiment called the New Play Map (http://newplaymap.org) that seeks input from all playwrights. This map will “map” new productions and second productions and so forth so that trends and patterns of the staging of plays can be seen; as well as the theaters in which they are appearing.

Along these lines, like so many others, Smith bemoaned the fact that playwrights are not getting full productions, but readings and workshops, etc. A topic that was equally taken up by Christopher Durang, whom I’ll touch on soon.

Coming from the Perseverance Theater in Alaska, Smith frankly stated that theaters owe more to their artists, especially playwrights, but it is equally important that playwrights (as assembled at this conference) take responsibility as well and work for serious systemic change.

Clearly Molly Smith is someone to be admired and respected and I look forward to talking with her at greater length.