FAIRYLAND was in turmoil. During a tech rehearsal for the October 2004 Off Off Broadway production of "Tam Lin" -- a play about a clash between mortal and immortal worlds -- a real-life clash threatened to derail the show. Exactly what happened has become, literally, a federal case, and the sides agree on very few details. Did the playwright, Nancy McClernan, insist that the director's staging was incompetent? Did the director, Edward Einhorn, refuse to alter it? Did the producer, Jonathan X. Flagg, smash some furniture on the set? One thing's clear: the morning after the tech rehearsal, after two months of unpaid work, Mr. Einhorn was fired.

In the time-honored way of the theater, Ms. McClernan and Mr. Flagg figured the show must go on. With the help of an assistant (who eventually received the program credit for direction), they supervised the remaining rehearsals, either largely restaging the play or retaining most of Mr. Einhorn's contributions, depending on whose side you believe. In any case, "Tam Lin" opened, ran for its scheduled 10 performances and closed. But the drama was not over. Soon playwright and producer were embroiled in a lawsuit that could ruin them personally and has huge implications for directors and playwrights everywhere.

The main interest of that suit, which Judge Lewis A. Kaplan of Federal District Court in Manhattan has scheduled for trial in April, is not whether an artist deserves to be paid for work his employers deem unsatisfactory. What's really at stake is something much larger, because Mr. Einhorn claims in his complaint that his staging contributions to "Tam Lin" -- contributions that his former collaborators say they excised -- constitute a copyrighted work of intellectual property, owned by him, and that the defendants must therefore pay for infringing the copyright. When the lawsuit was filed, in October 2005, a new run of the play was already in rehearsal, this time directed by Ms. McClernan herself, who had always intended to make "Tam Lin" an annual Halloween event. Because Mr. Einhorn says that even these new performances represented unauthorized use of his work, the potential tab, based on the maximum allowable statutory damage of $150,000 per infringement, is now up around $3 million, not including several other remedies he is requesting -- along with his original $1,000 director's fee.

Under the circumstances, it seems questionable whether "Tam Lin," with its kidnapped prince, female hero and happy ending, will return in 2006. But many playwrights, including Ms. McClernan, feel that a more dangerous threat is lurking in Mr. Einhorn's copyright claim: the kidnapping of their plays. As a result, the famously collaborative process of theater-making is now shadowed by questions. Are directors engaged in anything akin to the kind of authorship protected by copyright laws? If so, what's to stop them from demanding payment whenever a play they once directed is revived? And what would that mean to the free flow of ideas in an art form that borrows heavily from all available sources?

John Weidman, president of the Dramatists Guild of America and the author of the books for "Pacific Overtures" and "Assassins," argued in American Theater magazine that "if a directors' copyright is ever established, it will drastically limit a playwright's ability to control the work which he creates." Such copyrights, he added, "would clearly operate as liens on a playwright's play" and have "a potentially devastating effect on the facility and vitality of theatrical production."

Continue reading the main story

Whether or not the danger is so grave, no legal finding has yet established that a copyright for staging exists. And the "Tam Lin" case may not answer the question. The defendants' lawyer, Toby Butterfield, argues that the material Mr. Einhorn says he owns consists mostly of minor restatements of the author's original stage directions. "Instead of 'Exit,' it's 'Exit left,' " he said. "Instead of 'Picks up book,' it's 'Picks up red book.' What he created is so insubstantial that it doesn't rise to the level of a copyrightable work." Mr. Einhorn's lawyer, who is also his older brother and the co-founder with him of Untitled Theater Company No. 61, disagrees.

But two prominent cases involving charges of directorial plagiarism have offered tantalizing (or terrifying) hints of what the courts will eventually have to face. The first involved the director Gerald Gutierrez's 1992 Broadway production of "The Most Happy Fella." When a theater outside Chicago produced the musical in 1994, with the same star and the same sets (rented from the original producers), Mr. Gutierrez sued, saying the production contained so many details of his staging -- not just poses and movement but also the particular rearrangement of scenes and dialogue he had created with the approval of the estate of the show's creator, Frank Loesser -- that it amounted to theft.

Gary Griffin, the director of the Illinois production, said at the time that although he had watched a videotape of the Broadway show at the Theater on Film and Tape Archive of the New York Public Library, his version contained "huge departures" from Mr. Gutierrez's. (Contacted last week, Mr. Griffin, now represented on Broadway by "The Color Purple," said he did not feel comfortable commenting on the matter since Mr. Gutierrez had died, in 2003.) In any event, the suit was settled before trial; the theater paid Mr. Gutierrez an undisclosed sum and placed an ad in Variety blandly acknowledging his "contribution" to the production.

Because no judge ever ruled in the matter, the copyright issue was not directly addressed. But an even more dramatic case, a few years later, did get to court, at least briefly. In early 1996, the director Joe Mantello -- whose staging of Terrence McNally's play "Love! Valour! Compassion!" had been widely praised off Broadway in 1994 and then on Broadway in 1995 -- was told by a friend who knew the show well that a regional production, directed by Michael Hall at the Caldwell Theater Company in Boca Raton, Fla., was a dead-on copy.

Mr. Mantello flew to Florida, bought a ticket to the play and prepared to record, in a notebook he had brought for the purpose, any similarities he might discover. "I was writing almost continuously," he recalled recently. "Scene after scene, moment after moment, the staging was identical. If you ran a video of the two productions side by side, no rational person would say it was 'inspired by,' or an homage: 95 percent of the show was an exact replica. I'm not talking about attitude and interpretation. I'm talking about visual images, blocking, choice of music."

The opening scene in Mr. Mantello's New York production -- a tableau of all the characters arranged on a green knoll around a doll house representing the home where they are spending the weekend -- was replicated down to the placement and postures of the men, including one character's holding of a pillow. None of this was in Mr. McNally's script, which begins with the instruction "Bare stage."

Mr. Mantello's lawyer asked Mr. Hall and the Caldwell to acknowledge Mr. Mantello's work and to pay him a nominal fee. When they refused, claiming at first that nothing had been copied and then that the staging was part of what they licensed when they licensed the play itself, a lawsuit was filed. (Contacted by e-mail recently, Mr. Hall did not respond to questions about the case, citing a busy schedule.) By that point, Mr. Mantello, working from the stage manager's detailed "bible" of the New York production, had prepared a special copy of the script, recording his directorial contributions in the form of diagrams, descriptions and blocking notations. Like Mr. Gutierrez with "The Most Happy Fella," he then applied for a copyright on his annotated script; the application was accepted.

The Caldwell was already involved in a similar lawsuit brought by Loy Arcenas, the set designer of the Broadway production, but the case for a designer's ownership of his work is more straightforward. There was no such clarity about directors' rights, however. Ronald Shechtman, the lawyer who was advising Mr. Mantello, said that when he asked Mr. Hall on what basis he felt he had the right to copy another director's work, he answered, "On the basis of the history of the theater going back to the Greeks." Mr. Hall had support from people who felt this kind of thing happens all the time -- which is true. Nevertheless, partway through discovery, the defendants decided to settle. Mr. Mantello was paid about $7,000; he donated the fee to his union, the Society of Stage Directors and Choreographers, which had covered his legal expenses. (A similar settlement was reached with Mr. Arcenas.)

But the Federal District Court in Florida, responding to a pretrial motion, had already weighed in on the most momentous part of the case. In an order dated July 22, 1997, Judge Kenneth L. Ryskamp had denied, in part, the defendants' motion to dismiss, unconvinced by their argument that stage directions are inherently not copyrightable. "Once the plaintiff produced a copyright," the judge wrote, "the burden shifted to defendants to demonstrate why the claim of copyright is invalid." The presumption, in other words, was that the copyright did exist.

The legal implication of the judge's order has not been tested, and the unions representing directors and playwrights are left with their big guns silently pointing at each other. Ralph Sevush, executive director of the Dramatists Guild, has no conciliation to offer directors. "Our contracts specifically say that no one can make any changes in the playwright's material," he said, "and that anything added that the author approves becomes the author's property." Meanwhile, the collective bargaining agreement between the directors' and choreographers' union and all major producing organizations holds that "rights to the direction created by the director remain the sole and exclusive property of the director" and that "the director reserves the right to copyright those stage directions."

United States copyright law is notoriously complicated and open to interpretation. Though concepts and ideas, because they are not "fixed" in a tangible way, are clearly not protected by copyright, photography and choreography, for instance, are. Mr. Shechtman, who is married to the director Lynne Meadow, argues that direction can be seen as an amalgam of the two: the creation of stage pictures and movement. Mr. Sevush, of the Dramatists Guild, all but scoffs at the idea that a director, though he may be creative, is creating anything. He described the director's work as "moving around the copyrightable contributions of others."

Mr. Weidman, who worked with Mr. Mantello on the recent Broadway revival of "Assassins" -- and who, in gratitude for his directorial contributions to the show, offered him a share of the authors' royalty, which Mr. Mantello declined -- is more diplomatic. The director is an interpretive artist, he said, often doing brilliant work. For his work to be systematically copied by someone else, he agrees, is "manifestly unfair."

But that does not mean, he argued, that the director owns his work, any more than an actor does. Not everything creative is copyrightable. The repercussions, he said, would be too dire. If each director's staging of a relatively new play had copyright protection, very soon there would be no staging options left. The play would become so encumbered with licenses, or the risk of lawsuits, that it would be impossible to produce -- a net loss to the culture. Even classic works like "Romeo and Juliet" might gradually be removed from the public domain, thus perverting the aim of copyright law, which is to increase the flow of ideas and artwork by providing an incentive to their creators. "If Leonard Bernstein had been in a position to copyright his interpretation of Mahler," Mr. Weidman asked, "would another conductor who thought that interpretation was right, and then conducted Mahler in the same way, be stealing from Bernstein?"

Mr. Mantello takes a middle ground. "The acknowledgement of what the director creates is very important to me," he said. "But with that comes a certain amount of responsibility. Not everything I do is a unique contribution. I would never try to copyright my staging of 'Glengarry Glen Ross,' for instance, which is so straightforward. But to protect myself if I'm working on a new piece, I now make a side agreement with the authors for a small participation in the subsidiary rights. In a collaboration, you don't want the participants to start going, 'Mine, mine, mine, yours, mine.' But that's the unfortunate result of having to use the legal system to marshal something that ought to be more fluid."

The contractual work-around described by Mr. Mantello avoids the copyright issue altogether and solves a lot of problems. But because it's not really available to any but the most successful directors, and because it doesn't protect against plagiarism, it won't stop the fight for directors' copyright from moving forward. The consequences are already apparent: as a result of Mr. Mantello's suit, publishers like Dramatists Play Service no longer include detailed stage directions and other helpful annotations in the scripts they provide to licensees. And Patrick Hoffman, the director of the Theater on Film and Tape Archive, said more directors and choreographers now request restrictions on viewings of their work. Until his death, you could not watch the tape of "The Most Happy Fella" without Mr. Gutierrez's permission.

Some of the consequences will be problematic for directors themselves. Though the "Most Happy Fella" case was settled without any admission of guilt, Mr. Griffin has been trailed by rumors about subsequent productions; his minimalist "My Fair Lady," performed at several regional theaters in 2002 and 2004, is often said to have resembled too closely a 2000 production directed by Amanda Dehnert at Trinity Rep in Providence, R.I. Mr. Griffin said the only thing about his version that "might be similar" was the use of Trude Rittman's two-piano reduction, "which has been around since the 50's." Ms. Dehnert, whose friends warned her to check out the production, said she wasn't the kind of person to assume the worst about a colleague. "It happens all the time that two people have the same good idea at the same time," she said.




Continue reading the main story