Performing Copyright

Law, Theatre and Authorship

Luke McDonagh

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509927050
• Edition: 1
• Topic: Law
• Subtopic: Copyright Law
• Index: Law

Based on empirical research, this innovative book explores issues of performativity and authorship in the theatre world under copyright law and addresses several inter-connected questions: who is the author and first owner of a dramatic work? Who gets the credit and the licensing rights? What rights do the performers of the work have? Given the nature of theatre as a medium reliant on the re-use of prior existing works, tropes, themes and plots, what happens if an allegation of copyright infringement is made against a playwright? Furthermore, who possesses moral rights over the work? To evaluate these questions in the context of theatre, the first part of the book examines the history of the dramatic work both as text and as performative work. The second part explores the notions of authorship and joint authorship under copyright law as they apply to the actual process of creating plays, referring to legal and theatrical literature, as well as empirical research. The third part looks at the notion of copyright infringement in the context of theatre, noting that cases of alleged theatrical infringement reach the courts comparatively rarely in comparison with music cases, and assessing the reasons for this with respect to empirical research. The fourth part examines the way moral rights of attribution and integrity work in the context of theatre. The book concludes with a prescriptive comment on how law should respond to the challenges provided by the theatrical context, and how theatre should respond to law. Very original and innovative, this book proposes a ground-breaking empirical approach to study the implications of copyright law in society and makes a wonderful case for the need to consider the reciprocal influence between law and practice.

1

Introduction – Copyright and Authorship on Stage

The Rationale for this Book

It goes without saying that theatre involves performance, but what is perhaps less appreciated is that law too is ‘a performative mode of practice’.¹ The tasks that copyright lawyers and judges perform – often during the theatre of the trial – shape the boundaries of copyright law, which in turn affects the way works of theatre are perceived as objects of property. With this in mind, the theatre world itself presents a fascinating setting for exploring the legal concepts of the copyright work, authorship, joint authorship, infringement and moral rights from an interdisciplinary perspective.² These notions do not have a stable, inherent meaning – they are infused with normative content only through the practice, or the performance, of law. As theatre practitioners and copyright owners have made claims, and sought enforcement of rights, legal jurists have, through processes of legal reasoning and improvisation, defined the content of what the law protects. This book explores how the essential copyright law concepts have been developed in the context of theatrical practice and performance, drawing on insights from literary studies, theatre and performance studies, anthropology and sociology, as well as the core study of law.³ As the first academic monograph that focuses solely on the relationship between UK copyright law and historical and contemporary theatre this book fills an important gap in the scholarship. Until the last few years monograph studies of copyright law were focused overwhelmingly on literature (and to a lesser extent, music); whereas this book fits within an emerging field concerned with the copyright claims over visual art, dance and performance.⁴

My focus on theatre illuminates the fact that what is protected by the law – embodied by the script of the play, known under UK copyright as the dramatic work – is an allographic, rather than an autographic, work of art.⁵ Specifically, it is a performative work, a text which is typically intended to be performed by people other than the playwright. Moreover, the dramatic work is often authored via a collaborative workshop process, with several participants – the playwright, the director, the actors – making creative contributions. This raises several questions: who, after this process, is the author and first owner of the work? Given the nature of theatre as a medium reliant on the re-use of prior existing works, tropes, themes and plots, what happens if an allegation of copyright infringement is made against a playwright? Furthermore, who possesses moral rights over the work – namely, the right to be named as author and the right to control the integrity of the work?⁶ Although major theatres use standard contracts to try to clarify some of the above issues, in general theatre – which thrives in part due to public subsidy – tends to be less integrated into the web of business contracts found in the TV and film industries.⁷ This leaves much room for regulation of theatrical ownership practices via social norms.⁸ Yet, as I show over the course of this book, although the practices of theatre are profoundly social and normative, they are also bounded by legal constructs.

Overview of Jurisdictional Limitations and Thematic Scope

This book, including its empirical case study, is focused on stage plays as dramatic works rather than on works of musical theatre (musicals, operas, etc) or works of choreography (dance). Performance studies is an extraordinarily rich and varied field and there is simply no way to encompass every aspect of theatre within a single monograph, especially where significant studies have already been produced on, for example, choreography.⁹ Over the course of this book, my focus is limited to copyright in the underlying dramatic work itself, not related rights such as performers’ rights or the rights in set design. Since my aim in this book is to explore authorship of plays as dramatic works – texts that can be performed from a script – certain aspects of contemporary theatre are thus excluded, such as ‘immersive’ theatre. Yet, as I describe in chapters two and three, by zeroing in on the dramatic work I can study its relationship with law during different time periods and with respect to a wide spectrum of theatrical forms from devised to text-based theatre.

This study focuses primarily on the UK jurisdiction. The empirical study was similarly undertaken with UK-based participants. However, my intention is that this book will be relevant to legal scholarship more broadly.¹⁰

On authorship, joint authorship, infringement and moral rights I draw on comparative insights from case law in common law jurisdictions such as the US, Canada, Australia, Ireland and India. I refer to EU law on several points of relevance, including on originality; and I make comparative reference where civil law jurisdictions provide fascinating counter examples to the UK common law system of protection – for example, France in the case of moral rights and Germany in the case of ‘free use’.

A Theoretical Approach to Law and Authorship

In assessing the relationship between the categories of ‘authorship’ and ‘work’ in theatre, legal scholarship is not the ‘be all and end all’.¹¹ Taking an interdisciplinary perspective, I am guided not only by legal scholars but also by thinkers from the fields of theatre studies, literary studies, anthropology and sociology.¹²

Philosophers have long mused upon the concept of ownership as applied to different forms of writing, including literature and drama. Almost 2,000 years ago, when considering the sale of books in De Benficiis, Seneca – a playwright as well as a philosopher – made a distinction between the thing itself and its use, and between the original piece of writing and its copy.¹³ When Immanuel Kant considered the question of whether it ought to be prohibited to publish an unauthorised version of an author’s text, he referred to Roman law’s separation between opus (work of art) and opera (speech in action).¹⁴

What is fascinating about a work of theatre is that it problematizes such distinctions – between original and copy and between work of art and speech in action. As noted earlier, dramatic works are allographic, attaining their ideal expression in performance; the printed form, by contrast, is often seen as secondary (or at least not as authoritative as the performed text in action).

In this book when considering theories of authorship and the work I take as my primary inspiration insights from the path-breaking 1960s–1970s work of Roland Barthes and Michel Foucault. Barthes and Foucault are often authorised as the key philosophers of post-modern authorship.¹⁵ Their work enables a re-categorisation of the ‘the singular, autonomous author as a discursive formation embedded in particular historical conditions and disciplinary needs’.¹⁶ By setting out how concepts of theatrical authorship have changed over time, this book embraces these theoretical ideas, outlining the multi-faceted – and even poly-vocal – nature of theatrical authorship.

In particular, I make use of Barthes’ distinction between the work and the text, which he utilises to separate – or liberate – the author from the text.¹⁷ What Barthes calls the ‘work’ is what may be viewed casually by the reader, with its meaning almost taken for granted; by contrast he argues that ‘a text’s unity lies not in its origin but in its destination’.¹⁸ The post-modern reader approaches the ‘text’ to make it revelatory, creating a network of meanings and interpretations between reader and text, with the author far removed. For this reason Barthes’ states ‘the birth of the reader must be at the cost of the death of the Author’.¹⁹ In this chapter – and in those that follow – I refer back to this distinction as a way of deepening the understanding of the dramatic text as allographic work (of art) and copyright work (in law). As I explore, the work of drama is often authored via a collaborative process, which de-centres the author figure from the resultant text. Furthermore, the text that is produced is performative, typically brought to life on stage in front of an audience by parties – director, actor, producer – other than the author.²⁰ What emerged in theatrical history were two historical commodities of value – print and performance – arising from the the same text. Print was the first to gain legal protection; by contrast it took much longer for the law to protect performances via property rights.²¹

Along with Barthes, Michel Foucault’s work on authorship is essential to my analysis. Foucault focuses on how authors are often heralded as the epitome of the ‘writer as genius’. On this it is notable that playwrights are typically acclaimed as among the finest author-geniuses: Shakespeare is the quintessential English author, his works both read as literature and performed as drama. The influence of playwrights even stretches to the critique itself: when Foucault wrote his famous essay ‘Who is an author?’ during the 1970s he quoted Samuel Beckett:

‘What does it matter who is speaking,’ someone said, ‘what does it matter who is speaking.’²²

It is perhaps revealing, however, that there is a minor difference in the English translation of Foucault when compared with Beckett’s own English version of the line (originally written in French):²³

‘What matter who’s speaking, someone said what matter who’s speaking.’²⁴

In both translations there are no question marks. Yet the first appears to be related in the third person perspective by the author (or ‘God’ voice) and the second translation appears to be a line spoken in the first person, as if a person were relating what someone else has said. Even here, we are left with the question – who is speaking?

In theatre the person speaking is typically an actor, not the writer. So to ask about who is speaking is to necessarily contemplate the relationship between author and performer. There may be talent – even genius – in both. Yet traditionally copyright law recognises solely the writers as authors of texts (recognised in law as works), and actors as merely the authors of their performances when these are recorded (eg on film), that is, performers’ rights, which tend to be much less valuable than authors’ rights.²⁵

Ultimately, Foucault claims that what we think of as the author is ‘a certain functional principle by which, in our culture … one impedes the free circulation, the free manipulation, the free composition, decomposition, and recomposition of fiction’.²⁶ Why is this i...