“The Ice Child” and Staging Theft Ethics

Copy or inspiration?

Well-reviewed, received and attended, the Washington D.C. production of “The Ice Child,” an original horror play by members of the three-year-old ensemble Factory 449, has stirred controversy because of its staging and production design, which is not only strikingly similar to a New York production of another horror play, “Americana Kamikaze,” but the company candidly admits that its visual concept was inspired by the 2009 work. Factory 449 also maintains that the plays are different, and that their appropriation of the design elements of the Temporary Distortion production of “Americana Kamikaze” is within the realm of acceptable, and ethical, theater practice. In a statement responding to charges of theft of creative output, the company wrote:

“Factory 449 has enormous respect for Temporary Distortion, and we are surprised and disheartened to see them react so negatively to our show.  We wish we could have hosted them here in DC to see “The Ice Child” before it closed, to improve upon the distanced and limited context under which they’ve judged our production. The two productions are very different.  We set out to tell a very specific, linear narrative, wholly of our own devising and written collaboratively by Factory 449. “The Ice Child” took its inspiration from many sources, and while the staging was partially inspired by Temporary Distortion’s 2009 production of Americana Kamikaze, we place equal if not greater weight on the story, tone, style, and acting components.  For these we were inspired by the writings of Edgar Allan Poe and Ambrose Bierce, television shows such as “Criminal Minds,” and from the filming conventions of horror films in general.

“We admire Americana Kamikaze, but “The Ice Child” lives, speaks, and breathes completely differently.  In addition to a completely different narrative, the sound and video elements in The Ice Child were birthed from the text and were in no way influenced by Americana Kamikaze….And while our staging was partially inspired by Temporary Distortion’s production, it was also an extension of multi-media presentation concepts that Factory 449 has been pursuing since our inception in 2009.

“If Temporary Distortion deems these factors irrelevant, we feel they overlook a fundamental aspect of creative inspiration.  Artists are constantly inspired by each other’s work, and it would be naive or dishonest to say otherwise….”

Over on Culturebot, Jeremy Barker sees it differently:

“The end result, borrowing so liberally from Temporary Distortion’s show, seems to have crossed a line of professional courtesy and ethics. Throughout, I’ve done my best to be even-handed in trying to understand the various parties’ perspectives, but in discussions with other designers and artists whose work spans the experimental to mainstream, the sense seemed to be that “The Ice Child” was just too similar, without substantially altering or adding to the concept, for anyone to feel comfortable with the practice, particularly given the critical recognition of the production’s unusual style without credit being paid to the individuals who developed the concept originally”

I didn’t see either production, and I’m a member of the D.C. theater community, so perhaps my objectivity is suspect. But I’m also an ethicist, a professional stage director, and the artistic director of a theater company. I’ve seen other directors “borrow” staging innovations from me (“borrow” is director-speak for “steal”) and I’ve “borrowed” staging and design concepts from others. This is my wheelhouse, and I side with Factory 449, with one reservation.

The ethical practice is to acknowledge an inspiration. When I have taken a distinctive piece of staging from a particular director or production, I acknowledge the source. I’ve even acknowledged dead directors. I don’t describe exactly which aspect of the show prompted the credit, but a director, designer or company that provides inspiration ought to be recognized. This is Golden Rule territory for me. I absolutely and unequivocally deny, however, that a director has any obligation to ask permission from another artist to use a staging idea or concept.

A couple of years ago, a director friend called me to say that he had seen a videotape of a 30-year-old production of “The Pirates of Penzance” I had directed, and found himself on the verge of duplicating the whole show because he liked it so much. He was apologetic, and said that if I objected, he would do the show a different way. I told him that I was flattered, and that I had no problem at all with him using as much of my staging as he wanted. “I don’t even remember who I stole all those bits from,” I said, “but I know they weren’t all original with me.” I also told him that if my version was the best he could imagine, he had an obligation to the audience to use it as much as he had to. And that it was his show.

I would not be surprised if the arresting design for “Americana Kamikaze” had a variety of parents too. This is the nature of stagecraft, and every artist takes, learns, borrows, adapts, and is inspired by the work of those who came before him, who, in turn, were standing on the shoulders of other artists before them. Live theater is barely breathing as it is; a good injection of intellectual property law could kill it.  I can see the court case now: “But our boxes were wider and shorter, and we had a woman in ours, in red light. You had a taller box with a man in it, and he wasn’t Asian, and he was in blue light. It’s completely different!”  All we need to do to strangle theatrical innovation is to require productions to run the equivalent of  patent searches to ensure that what the director thought was her innovation wasn’t done identically in a Tulsa experimental theater in 1989.

Once an idea is put on stage, it should become part of the resources of every other theater artist, and the theater artist whose creative inspiration should feel one thing when it is transplanted elsewhere by another director to enhance anew production: pride and generosity. This is how theater, and indeed all the arts, evolve, improve and thrive.


Pointer: Toni Brotons

Source and Graphic: Culturebot

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.

20 thoughts on ““The Ice Child” and Staging Theft Ethics

  1. I’m on Jack’s side here. I’ve seen (and been in) a number of productions of “Man of La Mancha”, “Carousel” and especially “The Fantasticks”, etc., and know that producers and directors wouuld go insane trying to make each one of them totally different from any others. Perhaps sometimes we must, of necessity, be pygmies standing on the shoulders of giants.

    • This is certainly true for these popular, iconic works – people know them and expect certain things which tradition dictates. But Temporary Distortion is no giant (most theatergoers in DC wouldn’t recognize them I’m sure), and Factory 449 wasn’t putting on a remount of Temporary Distortion’s show. Instead, Factory 449 (self-admittedly) watched a video of TD’s show on On The Boards TV, replicated the design, changed the text, and then called it their own, without a single credit to TD.

  2. It seems its not just “staging” that was used but the total production design, concept and presentation. Was it different enough that it was more inspiration then theft? Having not seen both productions I cant comment on that.

    • If it’s two different shows, I don’t see how that can be. Is a production of “Coriolanus” stealing if it takes the design concept from “The Sound of Music”? Can the New York production swear with confidence that no other production used a similar concept or design?

      • Its not just the concept but the actual design. Lets say you do a show and someone does a completly diferent play but uses your costumes, your set, your sound design , your lighting design your blocking, and photos that resemble yours plus its all composed the same way. What would you call that?

        • And im not saying thats what happened but only that it is what people claimed happened. I didnt see either shows so i dont know.

        • If they literally steal the plans, plots and designs, that’s theft. If they watch the show and imitate it from memory or videotape, “That’s entertainment!”

          Back in community theater, I had completely original take on Jesus Christ Superstar” that was beaten out in the end of year awards by a production of “Sweeney Todd” that was copied move for move, stitch for stitch, inflection for inflection and flat of flat from the videotape of the Broadway production. I was pretty ticked off at the time. But you know what? It was a great show. And its not was if they hid their source.

          • Its a fine line between plagiarism and inspiration and i think that the only people who can truely judge whether it happened or not is someone who saw both shows.

            • My point is that it never rises to plagiarism. The exact same staging, design, you name it is still different enough with a different state, time, cast and director, and certainly different play. Just give credit.

          • Oh and one other thing. I once went to see a play i had previuosly done where there was an actor in it who had been in the production I had been in but now was in the role i had performed. And you know what he did? He stole my take on the character . And he did it better. Afterwards he and i had a drink and laughed our butts off becuase he admited he stole it and i told him he was better . Its the best compliment i ever got.

  3. I saw “The Ice Child” and enjoyed it very much. Factory 449 is filling a void in this DC by producing inexpensive, multi-media, original (yes, it’s stil original in my book) theatrical work. It’s not very often I go to the theatre and get the crap scared out of me. But when I saw the picture that you’ve got in your post, it did make me pause. A little.

    I agree with Jack and everyone else–an acknowledgement of their inspiration (perhaps in their program) would have made this much less of a deal than it turned out to be. I’m sure as a director I’ve “borrowed” staging, acting moments, design elements from other plays and films I’ve seen. I certainly would never think of it as “stealing.” In any case, I think Factory 449 handled this situation well–they made one statement and are, I hope, moving on to their next creative piece.

  4. And that thief Arthur Laurents STOLE the book of “West Side Story” from “Romeo & Juliet” by that thief Shakespeare, who STOLE the story from “Pyramus & Thisbe” in “Metamorphoses” by that thief Ovid, who STOLE the story from….ad infinitum.

  5. It may not be criminal but it’s still shameful, for a theater company attempting to bill itself as “experimental.” Experimental theater is an arena where new ideas are intended to be worked over, analyzed, synthesized – not copied wholesale from other companies in other cities, thinking nobody will take notice. It’s a much different animal from community/regional theater directors ripping off the staging/design of this or that Broadway musical that everybody’s heard of – in that situation, everyone understands and even expects some consistency between the original, iconic production and their local remount. But in this case, few theatergoers in DC would know Temporary Distortion’s work well enough to recognize Factory 449’s original “inspiration” – and their billing as an “experimental theater company” would imply that the work has been developed by the company as an original piece. Not so, it seems.

    • I hadn’t considered the “experimental” angle, which indeed suggests that the company is taking risks, not recycling someone else’s experiment that already proved successful.

      Excellent point.

  6. Jack–I just came across this piece and wanted to respond because I think, in quoting me, you ignore part of my argument, and I’m curious if you can clarify your perspective.

    Specifically, I feel like your caveated argument in favor of Factory 449 is based on the sense that it’s common practice to borrow such design or staging elements in text-based theater. I agree, it is. But if we were speaking of a specific author’s text, I think most commenters would have swung the other way. We tend to protect the playwright’s text in a different fashion than we do a design concept. A writer could be accused on plagiarism for either (a) imitating a distinctive plot, or (b) appropriating the same words. Yes, we can argue about what is an acceptable form of “referencing” (no one thinks Arthur Laurents wrote Romeo & Juliet, for instance) and what crosses the line. Often, this applies to how the text is used. But we understand and appreciate a playtext as a protected, distinctive thing.

    Indeed, I’d argue that this logic, which priveleges the text, is the basis on which people in this thread are defending Factory 449’s appropriation. Since it wasn’t the same “play,” by which they mean “play text,” it’s not really the same thing, ergo, it’s not ripping someone off wholesale.

    My argument though was that this is the wrong way to look at what Temporary Distortion does. It’s an imperfect analogy, but useful nonetheless, to think of them as visual artists. They don’t write play texts and produce those, they develop ideas and ways of exploring those ideas in a time-based process in a space. And yes, I can see people’s eyes rolling as I make this argument because often theater people don’t like to give the performance world credit for having a substantially different process of creating work. Which is why I’m using the analogy to visual art. What is an acceptable form of appropriation of visual art? If a theater company staged a performance by Marina Abramovic, would that be acceptable? Perhaps if it was well known enough to pass a “reference,” something we assume any reasonable person would understand was not the authorship of these artists. But if a company in fact just plain staged an Abramovic performance, without any substantial reframing, wouldn’t we consider that a theft? Just as surely as we’d consider it theft to use Jerome Robbins’ choreography from West Side Story?

    The line between the work produced by Factory 449 and Temporary Distortion is much less clear, I admit. But if one appreciates the process of creating art rather than just the end product, it becomes, I think, much more problematic. The argument risks stating that as long as you don’t produce a text that we can all agree you own and that those words are yours, then not only do you have little protection for the work you’ve created, but furthermore, we don’t care that much, because from our perspective, this is just how things are done.

    I’d also point out that, from this process-based perspective, Factory 449 also devised the show. They did not start with the playscript, they started with a concept. They’d used direct-address performance, and video, and wanted to do a horror play that used video that made use of the recognizable vocabulary of horror-thrillers. Of course if you start with the same material, those videos will wind up looking alike. No one is suggesting that Temporary Distortion owns the look and feel of the video component, nor that they invented direct-address performance. But I find it specious for Factory 449 to argue that the only thing they borrowed was the set/staging concept. They surely knew that if they were using the same raw materials and putting them in the same setting (which is indeed the very reason they responded to Temporary Distortion in the first place), that it would look substantially similar. I doubt we’d be having this discussion if this were a romantic comedy or, say, a set for Patrick Marber’s “Closer,” for which it would obviously work well. Their argument, it seems to me, is somewhat akin to one architect borrowing the design for a distinctive parking garage from another architect and then, when called on it, saying, “Well, I only borrowed the aesthetic; it’s purely coincidence they’re both used for parking cars, and anyway, no one owns the idea for a parking garage.”

    There are obviously huge intellectual property law questions here and I think a lot of the time, the resistance to calling something “plagiarism” is the sense that the arts thrive on borrowing. I agree. So does Temporary Distortion. Obviously, their work is based on an exploration of existing material–they have no desire to have people clamp down on IP either. But at an ethical level I think that this sort of usage raises huge issues for artists. Factory 449 does several plays a year in a more traditional model; Temporary Distortion develops each show over years. Factory 449 mentioned several times that they felt they were too impoverished to match the production values of Temporary Distortion, but that’s totally untrue. If Temporary Distortion’s production values were higher, it’s because they spent several years crafting that show for maximum effect. That set was built in Kenneth Collins’ living room, the show developed and crafted at his apartment, and the video produced by one guy over the course of months. They don’t have a lot of money, and companies like them rely on touring and multiple commissioning opportunities to make their work possible. So while I appreciate that borrowing and adaptation are crucial components of the development of the arts, I think that certain ethical standards have to apply.

    That’s why I find Factory 449’s usage unethical. If everyone did what they did–borrow heavily and receive credit for originality in the process–it would become impossible for companies like Temporary Distortion to develop the new approaches and designs people want to borrow from in the first place. The field would essentially cannibalize itself. And surely even accepting the desire for a freer use of ideas and concepts, we have to draw the line at behavior that risks destroying the ecology that permits for the realization of those ideas and concepts in the first place.

    • I’m going to make this the comment of the day, Jeremy, and thanks for such a thorough and thoughtful discussion.

      I have a three-way perspective on this—as a lawyer, as a director/writer/theater founder, and as an ethicist. They collectively cause me to agree with everything you say, but to reach a different position regarding what to do about it.

      “Hard cases make bad law,” it is said, and that is true: cases make precedent, and inexact analogies tend to be drawn to use that precedent to come to a damaging decision in a subsequent case, which then pushes a flawed concept down the line.

      I agree that in theory, “we have to draw the line at behavior that risks destroying the ecology that permits for the realization of those ideas and concepts in the first place.” I believe that in practice, in the real world, that line can’t be drawn without doing irreparable damage to all performance art. I don’t know how Temporary Distortion can protect its innovations from appropriation in different contexts without reaching a point where, for example, “The Magnificent Seven” can’t be made or imagined, because it rips off “The Seven Samurai,” and “A Bug’s Life” is considered over the line because it rips off “The Magnificent Seven.” The defense of these adaptations would sound a lot like the rationalization given by Factory 449. “What? That was a Japanese film and this is a Western!” “What? That was a western, about Mexican peasants being bullied bandits, and this is a cartoon about ants being bullied by grasshoppers!” Absolutism fails in such cases. You are right: if everybody did what 449 did, the end result would be disastrous. And, I would argue, any rule or law that prevents a company or artist from doing what they did would have just as devastating effects.

      If I gave the impression that I was “in favor” of what was done with Temporary Distortion’s work, that was not my intent. I think 449 had an obligation to give full credit to their source, and if it would have been me directing I would have asked permission…except that I can’t imagine using another artist’s concepts to such an intimate degree. Why do the show at all, if you’re not going to take your own risks? This is where ethics comes in. An ethical artist and an ethical company doesn’t behave as 449 did, and Temporary Distortion has every right and reason to feel aggrieved, and treated with disrespect. But the line you speak of has to remain in gray, fuzzy territory, delineated informally, on a case by case basis, according the the traditions and culture of the theater community.

  7. And I definitely agree that line is fuzzy–that’s why I keep stressing that the desire isn’t to somehow prevent others from using, responding to, and adapting ideas that are out there. The difference between appropriate and inappropriate can’t easily be spelled out except very conservatively–and damagingly to the form. I guess it’s sort of like pornography–you know it when you see it.

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