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.

So, I’m catching up on a play-viewing backlog and, unfortunately, this review will seem a bit terse from the lapse of time. I’ll start at an uncomfortable place: as I reported in my entry dated September 16th, I was pretty pumped about seeing Finn in the Underworld at convergence. But the seeing didn’t translate into what I thought, and the seeing actually accentuated some problems with the script that I didn’t notice earlier in reading it.

Probably the most glaring problem was a rather large plot hole in Harrison’s script that undermines the credibility of a substantial element of the thing. Toward the end of the first act, Rhoda tells Gwen (the two are cleaning out their family home) that she just had a conversation with Carver Bishop, a neighbor who lived in the crummy little eye-sore of a house down the street. The only problem being that Carver died a year before. This fact is pointed out in a rather dramatic moment by Gwen and a stunned Rhoda has to deal with the fact that, like her weird sister, she now sees ghosts. This would be a compelling moment, aside from the fact that Rhoda has lived in the town her entire life and visited her family house all the time during that period. The fact that she somehow lived in the town for 30+ years and did not know that Carver Bishop died and somehow failed to notice that the house down the street (the house that everyone hated) had been (finally) torn down, is just beyond believability. The whole moment was thus revealed as a fraud–that is, a plain writing device for effect that is destroyed by its own misconception; and I found myself asking questions about the integrity of what Harrison was doing. For instance, was this ‘hole’ an intentional thing? Was it an oversight? Neither really sit on the palate so well. Also, the revelation of Carver as a ghost, as a structural thing, (in light of the error and unusual dramatic focus) becomes comic rather than titillating. The fact, also, that the revelation happens late in the act reveals that the construction of the piece was directed too much toward an emphasis on this point.

In reflection, this was not so much a factor in the reading as it was in the watching, as the ghost reveal seemed to take forever as I watched–maybe because I was expecting it? On top of this, the horror effect is not elevated enough in other aspects of the play–or maybe not enough emphasis was placed on it in the production. But I think Harrison himself seems to highlight Gwen’s addiction to pills as if that is enough of a placeholder to carry the horrifying aspects of the house–when, really, too many things can lead to addiction today, and too many things in Gwen’s life particularly, so the house seems to take third fiddle to a broken down marriage and a bad mother-son relationship. It is suggested that the pills are precisely because she sees ghosts, but I don’t think that point is pointed enough, nor does it, inandofitself carry the weight that true gothic tension would carry. And the fact of a past murder or “accident” in the house is really moved over too quickly to be a concern.

Ultimately, I think, Harrison tries to do too much, so that nothing is in focus. The mother-son issues aren’t given enough attention, the horror element (house) isn’t given enough attention, the ghost story isn’t given enough attention, the sister relationship isn’t given enough attention, the sexual relationship between Finn and Carver is given too much attention–almost nauseatingly too much attention. There is a cell phone conversation with a distant character that has nothing to do with the action of the play. The confirmation that reading a play and seeing a play are very different is here demonstrated as the script and commentary read like a nice little book and the play played out like a disorienting exercise in confusion. As Mike Geither, said about this play, it’s almost like Harrison isn’t finished with it–or it was rushed to completion.

The production at convergence led to confusion in the second act, I’m sorry to say, as the direction in the play script is explicit that the second act takes place in the bomb shelter. The space constraint would have led to intense claustrophobia and intensified character relationships and definitions by the physical proximity. This instruction was cast aside and the cast spread out across the set. This fact led to confusion amongst people I’ve talked to since who could not understand why the characters changed relationships like they did and were confused about the clock and why it was used before but not after and so on. The constriction to the bomb shelter would have made the “underworld” apparent and would have highlighted the captive nature of the family in the house and the surreal nature of it all. I am reminded of the quote from Hamlet, Scene II, “I could be bounded in a nutshell, and count myself a king of infinite space.” But here the bounding is cast aside altogether and the characters wander freely about the set, confusing the boundaries that should have been strict. Small technical things, too, were odd: choices such as moving from the hands of an analog clock to a digital clock were disappointing, as the movement of hands showed direction (forward and backward), but the digital clock threw things out of state. I can understand that (unfortunately) some people may not be able to tell time, but if movement by the hands is done correctly, people will understand without even needing explicit times.

The character of Finn drawn by Gorbach was too much of a spoiled brat rather than a caustically disconnected and injured character and that further undermined what tension there could have been and I wished there would have been a bit more sophistication in him.

I still enjoyed the fact that Harrison played with time and that the play was delivered in pieces that were out of order. The fracturing gave some weight to a piece that, in the end, seemed thin.