The Artful Jurist

My friend, Lars, asked some excellent questions as a follow-up to the previous blog post, “Can You Copyright ‘Enter Stage Left’?” That previous post concerned the still much debated issue over whether a director can legally claim a copyright on the stage directions the director creates for a particular production of a play. Lars described a New York production he had recently seen in which the director’s touches were so extraordinary (and, I take it from my friend’s explanation of his own research, outside anything specifically instructed by the script) that there was little doubt the director had gone well beyond simply moving the actors on and off the stage.

Quoting Lars’ question in part, the following was posed:

[C]horeography is clearly copyrightable since it's as complex as a musical score or script, so why shouldn't a significant directorial touch be copyrighted? I guess the question then on which future rulings will hinge, is what constitutes significant?

Let me start by addressing the question of copyrightable choreography. The U.S. copyright law specifically lists choreography as something that can be copyrighted. That wasn’t always the case. In fact, the original copyright act listed only books, charts, and maps as tangible expressions covered by the law. Perhaps back in the 18th Century that seemed to embody everything Congress thought needed copyright projection. Or perhaps that’s all they thought was applicable to the constitutional clause that gives Congress the right to allow for copyrights on artists’ “Writings.” (See U.S. Constitution, article I, section 8, clause 8.) But, of course, those 18th Century framers of the Constitution hadn’t envisioned future inventions like the camera. So, when photography came around, and photographers started claiming they had as much right to their photographic images as an author has to a book, the courts saw the logic in this and began to expand the meaning of the constitutionally defined “Writings” to include images and later sound and visual recordings.

Choreography was a late addition to the copyright law. But it’s there, bolstered by the fact that there now exists a specialized means of notating specific dance steps, thereby creating a tangible expression of the choreographer’s exact ideas for the dance.

In contrast, there is no specialized notation for a play’s stage directions. These tend to be handwritten in the margins of the script – sometimes by the director and sometimes by an assistant – and are governed by no particular format or vernacular. Where choreographed dance steps are fairly precise and detail an entire sequence of movements, by comparison the stage direction, “enters swinging from a chandelier,” is but one described movement for the actor and could potentially allow for any one of a number of subtle or not so subtle variations. In terms of copyright, that distinction could work to a stage director’s disadvantage.

But then one has to ask what happens if a director adds so many unique touches as to create an original sequence of activities not automatically suggested by the playwright’s script. This gets back to Lars’ question about “what constitutes significant.” Is there a threshold at which the director can transcend physical embellishment of the play and turn a production’s stage directions into something independently copyrightable? And how does one measure such things?

A truly detailed analysis would be far too long for this blog. So, as I did in my previous post on this topic, I’ll have to direct any interested readers to the piece I wrote and that was published in the Arizona Law Review in 2001, titled Elvis Karaoke Shakespeare and the Search for a Copyrightable Stage Direction.