A Plea about Arts Piracy in the Theater

This post is about a problem I encountered last summer and have been struggling to put into words for a while now. At its heart it’s about respecting the work of the playwright. But it starts with an elaborate back-story including a brief sidebar on intellectual property rights.

The Back-Story

Last summer, a director friend from a major summer stock theater company contacted me with some good news: the late-night intern showcase was coming up, and one of the directing interns had chosen to direct my ten-minute play The Roosevelt Cousins, Thoroughly Sauced. They’d already been rehearsing for a couple of weeks, and my friend wanted to put me in touch with the director to discuss the play. To which I said, “That’s great. Of course I’ll speak with the director. But that particular play is published by Sam French. Have y’all contacted them for the rights?”

[Sidebar for those unfamiliar with play publication.

When a play becomes published, the publisher typically purchases both the publication rights (i.e. the right to publish and charge for copies of the script), as well as the licensing rights (i.e. the right to charge a royalty fee to anyone who wants to perform the play).

Money-wise the playwright receives a very small percentage of book sales (traditionally 10%, split evenly if the book is a compilation). So in the case of Roosevelts, a 6-writer compilation, if the publisher is currently charging $9.95/book, my individual cut is $0.17. The percentage from licensing fees is much greater (traditionally 80% for an amateur production or 90% for a professional one). So if the publisher is currently charging $45 for a classroom performance, I would receive $36.

You might ask why a playwright would cede licensing rights to a publisher, since the publisher is taking a large cut. The answer is that the publisher – by virtue of putting the play in book form – can reach a wider body of theaters/performers than the writer can reach on their own. You might also ask why a theater/performer has to pay a licensing fee in the first place. The answer is that it takes the playwright time and effort to create the play, and art isn’t free.

Side Sidebar: thanks to Mark Armstrong - who has worked in both play publishing and the agency world - for burrowing into the above numbers. Two things Mark thinks are worth noting for any playwright entering a publication deal:

1. The "90/80/10" split for "professional performance/amateur performance/book sales" is considered an industry standard. Be mindful of any publisher offering a lower percentage.
2. It's important to note that an agent's participation in play publication deals is different than play production deals. For a production, the agent takes 10% from the writer's proceeds. For a publication, the agent takes 10% of any advance that is negotiated, but after that they share royalties with the publisher and not the playwright (usually at a rate of 25% for the agent and 75% for the publisher). So in the above example, for a $45 classroom performance the playwright receives $36 (80%), the agent receives $2.25 (25% of 20%) and the publisher receives $6.75 (75% of 20%). If an agent were to then attempt to take 10% from the writer's $36 cut, they would be double dipping!

OK End of Sidebar.]

Regarding licensing, my friend said, “We never do -- it's a classroom presentation in a black box -- the culmination of the acting and directing classes every three weeks; no tickets, nothing like that.”

This sounded fishy to me, so I got in touch with my agent. My agent forwarded me Sam French’s licensing FAQ, and the language is pretty clear:

• What exactly is a “public performance,” and how do I know if I need to pay royalties?

Our definition of a performance requiring legal authorization and payment of author royalties (licensing fees) is any performance in front of an audience: regardless of whether or not admission is charged; whether the performance is public or private; whether or not it is for charity or gain. If an audience is present, then a licensing fee must be paid, and legal authorization for performance must be obtained. This applies to the performance of any part of any copyrighted work as well as the whole. It applies to "readings" as well as "performances.”

• I’m a teacher and we are using the play in my class. Do I need to pay licensing fees?

Licensing fees are not charged and authorization is not required of copyrighted materials within a classroom setting in which only the instructor of the class, and those students regularly enrolled in that class are present during use. If the copyrighted material is performed in front of an audience, which does not meet the strict "classroom" definition, then a licensing fee must be paid and legal authorization for usage must be obtained.

I got on the phone with my director friend and we had a pretty long conversation about this, and it was actually a very healthy and considerate conversation. She explained that they consider the internship program to be a classroom environment. I explained that this was essentially out of my hands. If this were an unpublished play, I could conceivably “donate” the play to be performed in the showcase. But once a play becomes published the licensing rights go to the publisher and it’s not up to me to decide. I encouraged them to pay the licensing fee, or at the very least contact Sam French for an educational waiver.

Here’s What Happened Instead.

At this point the managing director stepped in with the following four points (bearing in mind that I’m rephrasing here because I wasn’t directly involved in the conversation):

1. We have a longstanding and good relationship with Sam French.
   
2. We do a whole lot of these plays, and if we paid you the licensing fee then we’d have to pay it on everyone else’s plays and that would set a dangerous precedent.
   
3. These evenings are in the classroom category. Nobody is paid for their work, they’re all here as students, and the total rehearsal time is less than 24 hours.
   
4. If you wish to address that formally, then you need to contact Sam French and have them take it up with me.
   

These explanations didn’t sit well with me, and I’d like to rebut each in turn:

1. If you have a good relationship with Sam French then there is no downside to contacting them.
2. Scale of theft does not justify further theft.
3. If you are indeed a classroom then let Sam French formally classify you as such.
4. The onus is not on the playwright to contact the publisher. The onus is always on the theater/performer to obtain informed consent for performing a playwright’s work.

So I got back to my agent, who encouraged Sam French to contact the theater, and didn’t hear any more about this until the end of the summer. At which point I found out that the theater had dropped my play and substituted a different (unpublished) work by another writer.

This too didn’t sit well with me. The directing intern and actors had already spent a couple of weeks rehearsing the project. This was a waste of their time. I also felt that by pulling the play the theater was ducking a critical issue about whether they are using the playwrights’ materials fairly. While I definitely prefer that they dropped the play as opposed to performing it unauthorized, I can think of several more palatable alternatives:

1. Call Sam French, just to check in and ask.
   
2. Just pay the licensing fee.
3. Institute a policy of making the director pay the licensing fee, if they insist on performing published work.
4. Work on plays that are in the public domain.
5. Run a contest for unpublished short plays, then stage the winners.
6. Commission writers to write for the intern showcase, then pay them to do it.
7. Have the actors and directors create a devised piece.
8. Work on plays-in-progress by writers who’d like to develop work with the interns.
   

I get that it’s hard to come up with the perfect solution in the heat of the moment. Summer stock festivals are hectic and jam-packed with programming, and in the grand scheme of things the intern showcase isn’t the highest priority. But in an environment in which theaters operate on such tight margins, our principles are pretty much all we have left to offer each other. This felt a little unprincipled, and it isn’t the first theater where I’ve encountered the issue. I started my career as a director, and when I mentioned performance rights to another summer stock company, they said not to bother applying. “By the time they issue a cease and desist order, you’ll be done with the play.”

Here’s Why You Should Care.

There is an attitude of impunity in our culture when it comes to taking people’s artwork – this idea that art should be free. We see it in the way people pirate music and films online. We see it in the way people throw copyrighted works onto YouTube without attribution. But more disturbingly, we see it within our own community in the way that we treat young artists. There’s this attitude that free labor and free art are the price of entry for a career.

Why can’t a theater that gets copious free labor from its interns be bothered to pay a small licensing fee on the interns' behalf, in acknowledgement of all of their work? Or in my case, yes I’m a relatively unknown writer, but why am I not worth the phone call to Sam French just to be sure that we’re all above-board? If my play is being performed unlicensed, then my work is being used as a de facto subsidy to the theater – a perk to the interns to offset their free labor. It’s just that the interns signed up to work for the theater; I never did. According to Guidestar, this theater’s annual revenue is $3 million dollars. Mine’s $30,000. Who should be subsidizing whom?

Frankly I find the idea that the theater didn’t want to set the precedent of paying licensing fees disturbing. I get that we’re all budgeted within an inch of our lives, but if we don’t value each other’s art as fellow theater-makers – if we fail to respect the time and effort we put into our craft – then no one else will value us either. And then we’ll deserve the pattern of arts piracy infecting our culture at large.

Whenever a theater (or a training program, or a school) ducks the licensing process, or whenever they so much as photocopy a published script to distribute to actors (which is also illegal), please know that you are taking the bread directly out of the playwright’s mouth. It's no different than going online and pirating a movie. Only the sad irony of it is that most playwrights – unlike a film studio – are usually so overjoyed whenever someone takes an interest in their work that they'd gladly participate in the process, so long as you've gone through the proper channels. Why bother stealing the play when you could bag the actual playwright?

More generally, when it comes to training young theater-makers, we’re so obsessed with teaching the craft of theater that we've completely neglected the business. In college I had multiple professors assigning me Aristotle’s Poetics or An Actor Prepares. I wish they'd also slipped me the Equity Showcase Code, or the Dramatists Guild Bill of Rights. 

We think that adoption of standard industry practice will occur on its own, but clearly that's not the case. (I once saw a professional production of my play where the company had inserted new lines of dialogue without my permission or knowledge, because they felt that adding interstitial material would smooth out the scene transitions. This was a play I'd spent three years shaping into exactly what I wanted to say, and here were these random-ass lines inserted for the sake of furniture movement.)

An internship or apprenticeship may very well be a young professional’s first real exposure to living playwrights and new play development. So it becomes all the more crucial not to cut corners when it comes to honoring intellectual property rights, and all the more perverse when those rights are being violated in the name of "education." We're not just responsible for arts training here; we're responsible for modeling best practices.

In fact this showcase could've been an enormous teaching opportunity regarding how to approach a writer’s work. “Great, you’ve found a play that you like. Are the rights available? Is it published, and if so what is the licensing process? If it isn’t published, who is the playwright’s agent? Yes! You can talk directly with their agent – you’re a producer now.” This is an exercise that’s imminently useful to a group of early-career directors and actors who will invariably go on to form their own companies and become our next wave of producers, artistic directors, and company members.

To put it another way, playwrights will only generate new plays insofar as they can afford to keep doing it, and only insofar as they know that the community is protecting their work even when they’re not around to police it.

You may not think my 10-minute play is worth the $45. OK, I get that. But with the financial survival of playwrights more tenuous than ever before, with so many playwrights fleeing to LA for TV jobs, what is the price of further eroding our income base? What is the price of teaching young artists that it’s ok to just take someone’s art?