A ridiculous and offensive example of misuse of legal process and interference with free speech was just flagged by self-exiled Ethics Alarms star, Barry “Ampersand” Deutsch on his blog.
In her one woman play Thatswhatshesaid, playwright Courtney Meaker cherry-picked lines from the female characters in the eleven most-produced plays of past theater season, according to one list, anyway. She mashed them up for effect, the effect being to show how “society forces women to conform to certain harmful and paradoxical gender stereotypes, and America’s most popular plays reflect those stereotypes. Playwrights perpetuate the patriarchy by creating roles for women that reduce them to one version or another of male fantasy or fear, and playhouses make sure those plays have a home.”
Okaaay, I think I’ll be passing on that one! Nevertheless, re-arranging bits and pieces of other copyrighted works to create a different work and message from any of the components is such a well-traveled and obvious tool of the modern arts that to say this play’s content is fair use, legal and ethical should be completely unnecessary. Collages that do this (see above) have been accepted as routine; musical works and videos too. Here’s a favorite of mine…
But law, ethics and art didn’t stop Samuel French, the theatrical publishing company which licenses some of the plays quoted in Thatswhatshesaid. The company sent a last minute cease-and-desist notice right before a performance, demanding the play not be presented, and also left a threatening message on the voicemail of the show’s sole performer, Erin Pike, promising to “go after” her, “the presenter and the theater and all the folks connected to it.” Despite being warned by the theater not to defy the mighty French, Pike made sure her show went on anyway, like any good and courageous artist should.
What’s going on here?
I can’t imagine. French is dead wrong on the law—Barry cites a relevant case in the graphic arts field, and there are many others—and this appears to be an unethical use of threats to stifle legal and legitimate expression. My position is that it is unethical for lawyers to send cease-and desist letters when they know their threat is a bluff at best and a lie at worst. Barry, social justice warrior that he is, writes,
“It’s interesting that a feminist critique of a male-dominated art form, is being treated this way. It’s an illustration of how the power of wealth and the power of male dominance often work together – in this case, they’re virtually indistinguishable.”
No, it’s interesting that a smart guy like Barry lets his confirmation bias and progressive mania eat his brains. Samuel French, which I have dealt with for decades, cares about money, not politics, and knows its market, which is mostly amateur theater, is overwhelmingly dominated by liberals, women, and gays. French’s attempted shakedown is terrible business, but it is obviously designed to see if it can squeeze money out of this and other works that use pieces of its plays. If Thatswhatshesaid is a hit, French will be happy to market and license it, too.
Barry is correct, however, that
“…it’s unlikely that anyone involved with Thatswhatshesays has the financial means to allow themselves to be sued if there’s any alternative. Which is the fundamental corruptness of the copyright system – for pragmatic purposes, very often the right of fair use is worthless, because very often the cases involve people with truckloads of money threatening to sue people with none.”
This is why I immediately shot a link to Barry’s post to Ken White and Marc Randazza at Popehat, as they often ride to the rescue of such victims of censorious extortion.
My contribution to the cause can only be circulating the tale of French’s despicable and unethical attempt to crush a legitimate theater work through its false threats to the theater community. Theater companies have choices regarding what works to schedule and produce, and there are other licensing houses. I will strongly suggest that they produce the shows that are licensed by companies that support the theater and its artists, rather than bullying, extorting and threatening them without good cause.
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Pointer: Fred
Source: The Stranger
Ethics Alarms 
So, Courtney Meaker and company are giving free (though presumably critical) publicity to Samuel French productions, and Samuel French wants to shut it down. Hmm…there’s a word for people like that…even several words for people like that. What happened to “any publicity is good publicity”?
Thanks for the great video. I remember a lot of those movies! I used to watch movies on Saturday afternoon,they ran a lot of old movies.
My favorite part of this is the subsequent cease and desist on the 72-page script flip that involves NO words because there’s no female in that play at all. Because that play’s words ARE NOT USED, how can they have ANY gripe?
Well, legally and ethically it’s no worse than the first one. Just a bit dumber…
Jack, if I can play Devil’s Advocate for a moment, I’m not sure that “fair use” guarantees her the right to assemble a play that consists entirely of material from 10 copyrighted plays. Is she using 10% of each of those plays? (At what point would you be quoting more than is permissible?) Does her work have the potential of reducing the market value of the originals? How much of a play can she quote under “fair use” doctrine? I don’t know….. Jack, if you were hired as an attorney by Samuel French Inc. to protect the rights of a playwright quoted in her play, I bet you could come up with reasonable arguments for why “fair use” does not give this playwright to create a work entirely assembled from copyrighted work of others. If she wrote a scholarly article about sexism in the theater that consisted mostly of her own words but included occasional illustrative quotes from copyrighted scripts, there’d be no controversy; everyone would agree that is “fair use.” But court cases that have allowed the inclusion of SOME copyrighted materials in collages do not guarantee the rights of anyone to assemble as much copyrighted material as desired into new works. MGM could create a film like “That’s Entertainment” that consisted of scenes from their copyrighted movie musicals. But an independent producer–working without permission from MGM–could not have put together a film like that without infringing on MGM’s copyrights. When the Kennedy Center honored Ginger Rodgers, they could not obtain the rights to some famous film footage of Astaire & Rodgers; they simply left it out; they knew that they did not have a right to use it under “fair use” rules (even if snippets of Astaire & Rodgers turn up in video mashups on YouTube). Astaire’s widow was paid handsomely when a vacuum-cleaner company used a brief clip of Astaire dancing (which did not damage the value of the original motion picture) in a commercial; that was not considered “fair use.” Could you create, under “fair use” policies, a musical revue called (and I’m just making up an example, randomly) “Sondheim was Sexist” that consisted entirely of scenes from 10 different Sondheim musicals, with an aim of making a point about supposed sexism? No, you’d be infringing. I’m not saying Samuel French Inc. was right; I’m not a lawyer, and it would take a court case to resolve this. But if Samuel French Inc. read that a play was being mounted that consisted entirely of material from copyrighted works by others, it doesn’t seem surprising to me that this would sound like copyright infringement to them…. I have not seen her play, or read it. And I don’t know what a court might rule. But I don’t think it’s quite as black-and-white and cut-and-dry as many people seem to think.
A good point to make, Chip. We don’t diagree. I haven’t seen the play, so I must only go from Barry’s description. Did you check the link? Barry quotes from a review that describes the play like this…
Meaker splits the hour-long play into two acts. In Act I, she presents the lines and stage directions written by men. In Act II, she presents the lines and stage directions written by women. Each scene is composed of lines thematically bound by behaviors the culture polices the most in women. We see woman as sex object and temptress. Woman as angel. Woman as angry witch. The girl, the woman-hating woman, the woman who asks questions and apologizes for everything.
Now I read that to say that the play’s “scenes” are composed of lines from multiple works mashed up and gathered for effect. That’s a collage. If the play includes whole scenes, you are right, but by all the description I read, it doesn’t. You can’t include a whole scene, just like a play has to pay if it includes a copyrighted song—but not just a passage from it. Your Sondheim example—clearly not fair use.
I wrote and directed a Gilbert and Sullivan mash-up in which a crazy quilt operetta was created by assmbling scenes and songs from 11 of the shows, where the characters and scenes would switch based on parallel lines, of which there are many among the canon. The result was a long inside joke for fans, as well as a Gilbertian nightmare with a huge cast. It was a different show from the components, but I could only do it because G&S is public domain. That wouldn’t be fair use with licensed material—whole or even half scenes.
My assumption is that this play includes just re-arranged lines and exchanges, as described. If it’s whole scenes or substantial segments of them, you are very right, and French not only has a case but a righteous one.
More…
MGM could create a film like “That’s Entertainment” that consisted of scenes from their copyrighted movie musicals. But an independent producer–working without permission from MGM–could not have put together a film like that without infringing on MGM’s copyrights.
Right–whole scenes and dances. Not a collage.
“When the Kennedy Center honored Ginger Rodgers, they could not obtain the rights to some famous film footage of Astaire & Rodgers; they simply left it out; they knew that they did not have a right to use it under “fair use” rules”
Right again—because a whole dance is a substantive piece of creative art all by itself.
(even if snippets of Astaire & Rodgers turn up in video mashups on YouTube).
Nobody is going to sue over the video–each of the clips is less than 10 seconds. Fair Use.
“Astaire’s widow was paid handsomely when a vacuum-cleaner company used a brief clip of Astaire dancing (which did not damage the value of the original motion picture) in a commercial; that was not considered “fair use.”
Correction: the money was paid because Astaire’s image was used to endorse a product without his consent or that of his estate. MGM was paid for the clip. It wasn’t a Fair Use case: that’s why Robin got the money and not MGM.
“But if Samuel French Inc. read that a play was being mounted that consisted entirely of material from copyrighted works by others, it doesn’t seem surprising to me that this would sound like copyright infringement to them”
Then they have an obligation to find out before suing, especially right before a performance. You can’t sue because you might have been wronged, but you don’t know the facts. You get to sue ethically when you have evidence that you HAVE been wronged.
Thanks, Jack, for your characteristically thoughtful and informative response.
Have you ever had to deal with Samuel French directly, I have; my experiences really weren’t great experiences dealing with, what I would call, “intelligent” people – there are times I could have used the word bullies to describe phone conversations. Of course that was back in the late 90’s but it appears that they haven’t gotten beyond their artistic pompousness. Samuel French has been stomping on smaller production companies for years, some of their claims have been kind of ridiculous but how can small production companies deal with the mighty Samuel French, usually they don’t have the wherewithal to oppose the might French threats and give up.
On a separate note: I was actually part of an original production where it was announced after our final dress rehearsal that the show was canceled due to rights issues (not Samuel French). The author and director made numerous trips to NYC to get it worked out but in the end we closed. Pretty crappy to have invested 6 weeks of grueling rehearsals to have your only performance as the dress rehearsal. We actually performed a different version of the show the following year.