Comment of the Day: “The Ice Child” and Staging Theft Ethics”

Arts blogger Jeremy Barker contributes a provocative counter-argument to my stance in the controversy over a D.C. based theater company that borrowed/adapted/stole an original production concept from a New York company without attribution or permission.  My position was (and is) that no rule, principle or law designed to discourage such conduct could avoid suffocating legitimate adaptations, mutations and new uses of  ideas devised by others, with devastating effects on creative expression. This is one of the great ethics controversies in the world of art, and I am glad to see it back in the ring.

Here is Jeremy’s Comment of the Day on my post, “The Ice Child” and Staging Theft Ethics.

“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 privileges 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.”


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.