The Artful Jurist

I was making a presentation to playwrights in Charlottesville, Virginia, last weekend, and one of the people in the audience asked a question that I hadn't considered before.  If a production company changes the gender of characters in a play without asking permission of the author, does that constitute a violation of copyright law?

Basically, it can be argued that a theater company's changing of Mr. So-and-so to Miss So-and-so constitutes the creation of a derivative product of the source material, and it's the exclusive right of the copyright holder (typically the playwright) to make or authorize derivative works.  Even beyond copyright law, it's pretty standard that production licensing agreements include a clause that forbids the producing company from making any unauthorized changes to the script as written.  So it stands to reason that some (if not quite a few) playwrights would take issue with a theater company deciding to change the gender of a character, and it's possible that those playwrights could make a legal issue out of it.

For years, theaters have been lauded for "blind casting," in which roles are cast with absolute disregard for the race of the actor.  After all, who's to say that an actor can't play the part of someone of a different race.  It is, to belabor an obvious point, just the actor pretending to be someone other than who he is (which is the very definition of "acting").

But here we're talking about an actor of the opposite sex pretending not to be the gender chosen by the playwright for the character but, rather, a gender opposite of what the playwright has called for.  There the playwright might have a case to step in and say "no."

It's an intriguing issue, and I'd be interested to hear more about it if anyone has any real experience with such a situation.  Click the "Contact" button above and send me an email if you'd care to share your experience on this topic.