The Artful Jurist

The state of Colorado has snuffed out onstage smoking in its live theaters, even when cigarettes are called for as part of the performance. According to a decision from a state appeals court, Colorado's ban on smoking inside public buildings extends even to the actors in a show. And, apparently, the ban also includes herbal substitutes sometimes utilized as stand-ins for genuine tobacco cigarettes.

As you might imagine, this has riled play houses as well as the Dramatists Guild who see this as an infringement on First Amendment rights. The argument is that smoking "in character" is a form of creative expression. The appeals court's rebuttal is that, in its opinion, smoking by itself isn't sufficiently expressive enough to merit the free speech protections of the First Amendment.

So I guess you can burn a flag on stage in Colorado as a First Amendment right so long a you don't roll it up and put it between your lips.

Apparently, there's talk around Broadway about taking the current Brooklyn Academy of Music production of Tennessee Williams' classic, A Streetcar Named Desire, featuring Cate Blanchett in the role of Blanche DuBois, and moving it across the East River to a Broadway theater.

Why should that raise a legal issue? Well, Actor's Equity (the actor union) has rules about the percentage of non-American actors it allows to traipse about the boards on a Broadway stage in any given show, and Ms. Blanchett's production features a cast of Australian actors from her Sydney Theater Company.

Yes, there are legal agreements about such things. And they're not just in the United States. Ask any professional actor how difficult it is for an American actor who's not an international household name to get permission to perform in London's West End.

Still, with these sort of things, money usually talks loudest. The show has reportedly been a big hit. So, if Ms. Blanchett's willing to do it again on Broadway, my guess is the legalities will someone get worked out.

There's an interesting article in this month's Dramatists Guild newsletter. The article was about a theater company that had invited playwrights to apply for the opportunity to write a commissioned musical. So far, so good. Right?

Well, according to the article, the commissioning contract the theater company was using would give the company 25 percent ownership of the copyright as well as such things as creative control, subsidiary rights, and the right to fire any authors at will.

If you're a budding playwright, let me just say that these contractual demands are way out of whack for the industry. (Something which the Guild's newsletter also strongly pointed out.) That kind of "we own the script" outlook is the sort of thing writers deal with when they sell a movie script to a Hollywood producer. It's not the kind of control that a producer gets over the script of a stage play.

The screenwriters deal away such rights, but they're typically paid handsomely for that sale. Trust me, playwrights aren't making anywhere near the same money. As a result, playwrights have little to no incentive to sell their intellectual property to someone who's merely intending to do a performance. As a playwright, you need only licence your script to a producer—giving that producer the right to perform the show but reserving the property rights to yourself. That, my friends, is the industry standard.

Yes, yes...we all know the show must go on. But not the actor if he gets mercury poisoning.

A New York Times article reports that an arbitrator has ruled in favor of actor Jeremy Piven, saying that Mr. Piven didn't violate his contract when he dropped out of the Broadway production of David Mamet's "Speed-the-Plow." The producers had filed a grievance against their lead actor when he bowed out of the show early because Mr. Piven reportedly got mercury poisoning.

The cause of the mercury poisoning was apparently Mr. Piven's diet—heavy on fish.

A friend recently shared with me a post from a theater listserv or bulletin board. The topic had to do with what a dramaturg actually does. If you're not familiar with the term, a dramaturg is someone who's supposed to work with a playwright during the early stages of a new play's production to help that author better craft the play for its performance.

I don't begrudge those who like working with dramaturgs. But, as a playwright, I have to admit I'm a bit skeptical of them. I fail to see the necessity for what amounts to a professional kibbitzer. (Isn't it the director's job to work with the playwright to make a better performance?)

Anyway, the post my friend sent me was composed by a dramaturg who described her role as one who is "an advocate for a dialectical process of meaning-making among people."

Uhhhhm, okay...if you say so.

But here's the part of that dramaturg's post that really troubles me, not only as a playwright but as a lawyer. She wrote, "I think that we get into the problem of the 'intentional fallacy' if we think of ourselves as somehow trying to realize a playwright's 'vision'--it assumes that the author is the source of all possible meaning."

Well, there's no disputing that theater is a collaborative process. But I think you'd be hard pressed to find too many playwrights who would agree with the statement that their vision of their own play isn't the source of the play's meaning. And, while I don't claim that a playwright couldn't benefit from someone else suggesting a new interpretation of the work, I'm very leery of anyone who comes into the process to revamp a play into something that has a meaning other than what the playwright intended.

The problem is one of authorship. The law is quite clear that one doesn't become a collaborator just by making some suggestions. But there have been court challenges where people who helped authors revise their works have later claimed joint ownership of the final product. The case involving the musical Rent was just such a case that ended with the script doctor reportedly getting a settlement payment from the estate of the late Jonathan Larson, who's credited as the work's author.

As a playwright, I don't want to be the next person who has to share proceeds or credit with a person who's supposedly been hired to help me polish up my play. So I'm disinclined to work with a dramaturg.

As a lawyer, I recommend to any playwright who wants to (or is forced to) work with a dramaturg that you first get an agreement in writing with that dramaturg to spell out exactly what that dramaturg will and will not get. It's not enough just to have that clause in the production contract with the theater company. Unless the dramaturg's working as an employee of the company, that company can't enforce its agreement with you over the dramaturg. So my advice is to get the dramaturg's signature on the agreement, or tell that dramaturg to go advocate a dialectical process of meaning-making with some other person.

Just a suggestion to fellow playwrights.