The Artful Jurist

Like community theater revivals of The Odd Couple, this is an issue that just never seems to disappear. I’m talking about the debate over the question of whether directors of stage plays are legally entitled to copyright their stage directions.

This issue first popped up around the mid 1990s when a couple of lawsuits started making headlines. The suits involved cases where directors were suing others whom they claimed had infringed their intellectual property by staging plays in ways that too closely resembled the plaintiff director’s way of staging it. Those cases were later resolved without the litigation going all the way to a finish. But the argument still pops up here and there – the latest I’ve seen in recent issues of The Dramatist, a publication of the Dramatists Guild of America, where an article and follow-up letters to the editor once again were hashing it out.

Here are the arguments in a nutshell…

The director says: “I’ve taken the basic script the playwright has written and added to it my artistic vision through particular staging elements that weren’t specifically referenced in the original script. Those elements are my creations, not the playwrights. And, therefore, they’re my intellectual property and shouldn’t be fair game for just any snot-nosed Johnny-Come-Lately director to scoop up and put in some later production of the same play.”

Meanwhile, the playwright says: “Staging is just a natural extension of any play script. Plays are written to be performed and, as such, any stage directions are implicitly a part of the script, whether specifically referenced or not. Allowing a director to copyright the staging infringes the playwright’s ability to have the play produced. If one director copyrights ‘Enter Stage Left,’ and another copyrights ‘Enter Stage Right,’ then no actor can ever again enter the stage unless dropped from the ceiling.”

Of course, the issues are far more complex than that. And, if you want to read a detailed analysis, I invite you to read Elvis Karaoke Shakespeare and the Search for a Copyrightable Stage Direction, which I wrote and was published in 2001 in the Arizona Law Review. But, for our purposes here, we’ll keep this short and simple.

Despite some rulings the Dramatists Guild cites as being beneficial to the playwright’s side of the issue, we still don’t have a conclusive, final legal ruling on the applicability of copyright for stage directions. And don’t look to the U.S. Copyright Office for a definitive answer, either. In its 2007 annual report to Congress, the Copyright Office referenced the case of Mullen, et al., v. Society of Stage Directors and Choreographers as a case it was “monitoring” regarding the stage directions copyright issue. The report stated that “the Copyright Office refused to register a copyright claim for the stage directions on the grounds that the expressions of stage direction are not fixed and do not rise to a level of originality that is sufficient to achieve copyright protection.” (Annual Report of Register of Copyrights, Fiscal Year Ending September 30, 2007, p. 44.) But it didn’t say whether that decision applies to all attempts – past, present, and future – to register stage directions or just to that particular attempt.

The bottom line, of course, is typically about money. And, despite the language from the Copyright Office, the Mullen case was settled in late 2007 for an undisclosed amount.