Catherine Fisk is Chancellor’s Professor of Law at the University of California, Irvine and an OnLabor Senior Contributor.  Alisa Hartz is a staff attorney at Public Counsel Opportunity Under Law in Los Angeles and has a Ph.D. in comparative literature.

Creative workers experience some of the same kinds of exploitation that other workers do: long hours, low pay, and bouts of unemployment.  But one kind of exploitation that uniquely harms creative workers concerns their lack of control over intellectual property rights.  Creative workers should have greater protection so that copyright owners can’t exploit their labor. One area where reform is needed concerns the risk that theatre troupes will be blocked from engaging in certain types of creative labor or lose the right to perform a play that they have spent weeks or months rehearsing.

The Wooster Group, one of the most innovative theatre troupes in the United States, mounted an inventive and well-reviewed production of Harold Pinter’s earliest play The Room in Los Angeles in February. In the weeks before it opened in LA, Samuel French, the agent that controls the rights to the play, insisted that it hadn’t granted permission for the LA run.  Though French did not try to stop the LA performances, it made a widely condemned effort to prevent the Wooster Group from publicizing the performances and it tried to prevent reviews of the production.  Though French failed to prevent the Wooster Group from advertising the performances and failed in its effort to prevent anyone from reviewing the play, it did succeed in forcing the cancellation of anticipated productions in New York and Paris.  French, reportedly at the urging of the Pinter Estate, claimed that it had granted permission for the Wooster Group to perform the play only in a limited setting in Brooklyn before the LA run and insisted that the Pinter Estate has other plans for performing the play.  Critics of French and the Pinter Estate asserted that the Pinter Estate simply did not like the Wooster Group’s interpretation of the work.

The most troubling aspect of the Wooster Group’s conflict with French is that the Group put considerable creative labor into creating a production and was unable to recoup their creative and financial investment by taking the production to New York and Paris.   New York and Paris audiences lost a chance to see the Wooster Group’s novel interpretation of Pinter’s work. The Wooster Group’s unfortunate situation highlights the need for a compulsory license (at a fair price) for performance rights for plays.

Copyright law is an exception to the First Amendment protection for freedom of speech.  Copyright’s restriction on speech is tolerated because the monopoly on use of the work provides an incentive to authors to write.  The term of copyright is limited (in theory) so that after creators are compensated for their efforts, everyone can use the work as they wish.  Authors feel strongly about their dignitary interests in controlling uses of their work, but even while a work is protected by copyright, the interest in freedom of thought means that authors cannot control who buys their work, who reads it, or what interpretations readers and reviewers place on it. While authors have a right to be compensated for uses of their works while they are still in copyright, they do not (and should not) have the right to block interpretations of which they disapprove.

The balance between authors’ and audiences’ rights is well settled for books.  For copyrighted works that are performed (plays, dance, and music), the rules are slightly different, and they give substantially more power to authors or copyright owners to block access to the work and to control interpretations made of it.  Anyone can buy a play or sheet music, but one must obtain the copyright owner’s permission (and pay a separate license fee) to perform a play or a dance or music.  And some rights owners restrict who can obtain a performance right.  The great modernist playwright Samuel Beckett steadfastly refused to permit productions of Waiting for Godot by all-female casts, and his heirs have continued to do so after his death.  This is not only short-sighted, it also discriminates against female actors and directors.

Plays are part of our cultural heritage and, for fair compensation, they should be available for all to perform.  A few years ago, the South Coast Repertory theatre produced Death of a Salesman with an all-black cast.  The production presented a new way of thinking about mid-twentieth century work and family life.  The estate of Arthur Miller should not be able to prohibit it, simply because they think, or Miller thought, that the play is about the travails of a white family rather than a black one. If Shakespeare’s plays were subject to copyright, his literary heirs should not be able to prevent women from playing the female roles simply because, during Shakespeare’s life, women were prohibited from performing. Nor should a production of the tragedy of star-crossed lovers – call them Romeo and Julio – be banned because it’s about a pair of gay teens falling in love against their families’ wishes.

Innovative productions illuminate aspects of the plays that audiences hadn’t seen or understood before.  Before the Wooster Group’s production of The Room, few would have thought about Pinter’s play as part of a mid-century tradition of stand-up comedy.  Moreover, innovative productions create work opportunities for actors and theatre directors that would not exist if the playwright’s original vision of the work were the only authorized vision.  It’s not only shortsighted to restrict productions to ones that the copyright owner approves as canonical, it allows a few people to dictate acceptable interpretations of cultural works and deprives theatre actors and directors of the ability to engage in creative labor that bears on contemporary culture where copyrighted works are involved.

A statutory license for performance of songs has been part of copyright law for over a century.  After the copyright owner (usually the songwriter) first records or distributes a song, any member of the public may obtain a right to record or perform the song even if the copyright owner objects.  The person must simply notify the copyright owner, pay a statutorily prescribed fee to the owner, and refrain from altering the melody or “fundamental character” of the music.  As a consequence, everyone has the right to cover a song.

As Professor Michael Carroll has explained, a similar statutory license could be created for other copyrighted works to extend to theatre actors and directors the same right enjoyed by singers and other musicians.  A sliding scale of license fees could be established so that the fee would be larger for a big budget production generating substantial revenue than for a high school or amateur theatre group.  The statutory license balances the interest of authors to receive fair compensation with the interest of performers in having access to all copyrighted works and the interests of audiences in having the chance to see all plays performed.

We would never tolerate a copyright law that allowed authors to restrict who could read their books or what interpretations readers could put on them.  We long ago rejected that power for songwriters.  We should extend to theatre performers and audiences the same rights of access to our shared culture that we allow performers of music and readers of books.