Can You Copyright ?Enter Stage Left??

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.

It's a Wonderful 25 to Life

If you know anything at all about lawyers, you know they can find a way to argue about any topic under the sun. Case in point?a lighthearted little article in a recent edition of the American Bar Association?s ABA Journal. The topic of the article: Would James Stewart?s character in the movie classic, It?s a Wonderful Life, have gone to jail over the missing bank funds at his Building and Loan business? According to the article, George Bailey (Stewart?s character) might have faced a larceny charge and a 2 to 7 year prison sentence for the financial fiasco even though his friends bailed him out of the shortfall. (Keep in mind this movie was made back before government bailouts were handed out like trick-or-treat candy.)

Okay, so accounting shenanigans are no laughing matter. But we?re talking about a movie here. And Hollywood's more interested in telling a good story than in getting the details nailed down on legal issues the story might raise. Of course, that didn?t prevent lawyers reading the article from weighing in with their take on the fictional matter in the online comments section of the ABA Journal.

First, it was generally agreed that George lacked the requisite ?intent? to commit a crime that?s a key to finding one guilty. But then, with a lawyerly shrewdness that would have made Perry Mason proud, a number of the contributors started laying the groundwork for pinning the rap on Mr. Potter or Uncle Billy. And there were those who were less concerned about the financial issues than they were about George?s drunk driving and smashing his car into a tree. (In the movie, he didn't even get a ticket.)

And one astute reader couldn?t help but wonder, if George Bailey got 7 years, what would the Grinch get?

You can read the article and its comments at the ABA Journal web site.

Rules of the Blog

Yeah, yeah...I know. It's the Internet, and rules take all the fun out of it. But, like any other well thought out venture, it's probably best to lay out a few ground rules at the start just so we all know what we can expect. Here then are the answers to a few likely questions this blog might raise for those who visit it:

Can I ask questions of the blog author?
Absolutely! In fact, it's encouraged. My hope is that people will write me with their questions about legal issues involving the arts or entertainment industry -- things that might be in the news or that they might have heard about somewhere. Or perhaps there's something about the law that you've seen on a TV show or in the movies, and you're curious about it. That would be a welcomed question, too. I?ll try to respond as best I can. I can't promise I'll always have an answer. But, if the question is something that could be of interest to others, I might write about it on the blog just to see if anyone else out there has any insights they might be willing to share.

Is this blog legal advice?
Absolutely NOT! Application of the law is extremely fact specific. For example, you're not allowed to go through a red light...unless you happen to be driving a fire engine at the time and you're racing to a three-alarm blaze. See how a small change to the facts can make a huge difference? That being the case, absolutely nothing on this blog can or should be taken as legal advice for anyone?s specific situation. The Artful Jurist?s sole purpose is to provide a forum for writings about general legal topics involving the arts and entertainment fields. If you have a legal issue that?s specific to you, personally, there simply is no substitute for consulting a lawyer as your professional legal counsel. Although I?m a lawyer, I?m not your lawyer just because you?re reading my blog.

Is this blog just for lawyers?
No. The goal of the author of this blog is to put things in plain English rather than ?Legalese.? Before I became a lawyer, I used to be a journalist, and I have a lot of experience communicating all sorts of things to a general audience. I hope you?ll find the writing understandable and easy reading.

Can I post a comment on the blog?
Not directly. This is a blog, not a bulletin board. My hope is that people will view this blog as a place to find interesting or fun musings on legal topics concerning arts and entertainment. Outside user messages on Internet bulletin boards sometimes get off the main topic and, worse, are sometimes subject to abuse. I?m trying to avoid that. But that doesn?t mean you can?t write comments to the blog. Your feedback is welcome. What?s more, if you?d like to share what you?ve written with other blog visitors, just let me know that it?s okay to republish your comments on the blog, and I just might do that.

Can I ask questions about legal issues that aren?t related to the arts or entertainment fields?
You can ask. But, if they?re not related to the subject matter of this blog, what?s the point? I?ve chosen to create a law blog dedicated to arts and entertainment because, as a lawyer who?s also an artist, I?ve a special interest in this area. I can talk about other areas of the law as well. But questions regarding other legal matters are more properly directed to me through my practice at Amada Law Office rather than through this blog.

Yours most truly,
Rich Amada

Welcome

Welcome to The Artful Jurist. This blog is dedicated to news, issues, opinions, and musings about the law as it relates to the arts and entertainment fields. It?s hoped that the entries to follow will be informative, thought-provoking, or, at the very least, entertaining. You?re encouraged to send comments and questions.

Unless attributed to someone else, the opinions expressed here are those of Rich Amada, attorney and counselor at law. Rich is also a writer, actor, former broadcast journalist, and general arts enthusiast whose legal practice includes helping artists who work in various disciplines. For more about Rich and his practice, check out the Amada Law Office web site.