The Playgoer: Pissing Contest? (Urinetown, Round 2)

Custom Search

Saturday, December 02, 2006

Pissing Contest? (Urinetown, Round 2)

The accused Urinetown copycat productions are fighting back. In court.

The Carousel Dinner Theatre in Akron, OH, has sued the Broadway team, and a lawyer for the Chicago production at the Mercury Theater sent the Broadway team a letter denying all charges.

The suit, filed Nov. 22 in U.S. District Court for the Northern District of Ohio, asks the court to declare that the Akron production is "not substantially similar" to the Broadway production and did not violate any laws.

"We want an acknowledgement that the work done in Akron was original and didn't violate anybody's creative rights," says Terrence L. Seeberger, a lawyer for the Akron production.

"We're not going to be bullied, honestly, by something we deem very harmful to the industry and we're not going to sit and take it, especially when we worked very hard to create something completely different on its own merit," Tom Mullen, the director and producer of the Chicago Urinetown, tells Playbill.com.

Not quite sure yet what they're suing for. Defamation of artistic character???

The Broadway team, though, does have one thing on their side. Copyright. Did you know that lighting plots can be copyrighted?

The suit acknowledges that the Broadway lighting design was copyrighted on Aug. 21 of this year, but does not acknowledge any other copyrights, except for the script.

Ronald H. Shechtman, a lawyer for the Broadway team, said that he has received approved copyrights for the choreography and set design as well. Applications for copyrights for the direction and costume design, filed in late summer, he says, are still pending.

In the past, only the work of playwrights, choreographers and set designers has been deemed protected by law, but for direction, and costume and lighting design, the situation is much more fuzzy, Shechtman says. But, he added, "if they want to test us on the issue of stage direction, we believe this is an appropriate test case."


Test case? Wow.

Keep an eye on this one. There could be lots of divided loyalties here, splitting theatre folk down the middle. Will the support be behind achieving more recognition and renumeration for original creative contributions? Or on the side of the little theatres in the heartland against the Bullies of Broadway?

8 comments:

parabasis said...

Garrett--

Great reporting! I am, however, very interested in what your (I'm going to assume on-going and evolving) opinions on all this is. Any chance we could get a blog post about intellectual property out of you? (I of course ask because I've written about this a few times and it's something I really care about).

slim and slam said...

"Not quite sure yet what they're suing for. Defamation of artistic character???"

I haven't looked at the complaint, but I presume that they're suing for a declaratory judgment. Basically, it's an official statement from the court that somebody has certain rights, or that somebody lacks certain rights. These rights (or their lack) then necessarily drive the subsequent legal wrangling.

I think this comes up a fair bit in patent law - if a patent infringement hasn't happened yet, but looks like it's about to, then the patent-holder can request a declaratory judgment that the patent is valid. Or the other guy can seek a declaratory judgment that the patent is invalid. You can see how this would simplify subsequent disputes.

My casebook here says that asking for a declaratory judgment is often used as a device to get the case into the court you want (state vs. federal).

Disclaimer: this is not intended as legal advice. If you act on this information as if it were legal advice, you are on your own.

Anonymous said...

I saw Urinetown. How the f*** else would you direct it? It's a simplistic show and it's not as though it's open to myriad interpretations. These f****** must have gotten so rich off the Broadway run. Please leave the Ohioans alone. Good God.

David said...

When a director sues for copyright infringement, it's not going to be for "general" things like the style of acting, etc -- it's going to be for very specific things, llike the blocking of the actors. And in that, no matter how simplistic the show, there are a lot of different choices that can be made. Also, they're not going to sue over just a few similarities, but for an extended accumulation of them.

It's like with music: a composer can't lay claim to a particular note or chord, or even a short sequence of notes and chords. But once the sequence gets long enough (I thing the magic number is 7?) then they are considered to have a claim over that sequence. Now, I'm not saying that 7 is necessarily the right number, but I think that one can argue that a "right number" does exist, somewhere.

If the set design for the Ohio production was very similar to the Broadway production, it's not surprising that the direction would start to look like the original direction as well. The scenery is going to inform the movement patterns, entrances, exits, blocking, etc of the actors. There are still different choices that Ohio director could have made, but probably fewer than if the set design had been strikingly different.

It isn't surprising that the case for copyright is clearer with set design -- we (I'm a set designer) produce very clear, detailed drawings, sketches and painter's elevations of the scenery, which can easily be compared with drawings etc from another production of the same show. The light plot is in many ways similar in it's precision as ease of comparison, although how that plot gets used in a production can create very different results.

It's actually a kind of interesting theoretical question -- if the Ohio LD copied the B'way light plot verbatim, but the end results were different, can he be held liable for copyright infringement because he tried to copy the original design, even if he failed to do so? Or, what is probably the more likely situation (since how exactly would the Ohio LD have gotten his hands on the original light plot?) if the end result in Ohio looked a lot like the lighting on B'way, but the plots (being the most easily comparable documents of the lighting for the two shows) are noticeably different, can the Ohio LD be held accountable anyway?

I don't believe in frivolous lawsuits, and there is rarely a bright line in these things when discussing creatiuve endeavours -- two different artists can arrive at the same end result with no knowledge of one another's efforts. But it's disrespectful of the designers and directors on a show to imply that they have no right to defend their creative endeavors from being stolen by other people. Also, the money argument is a little weak -- by that logic, why should the producers of the Ohio production have had to pay the writer and composer for the rights to produce their show? After all, they have probably made much more money off the success of Urinetown than the director and designers have.

David

DAM* Writer said...

David wrote:

"...why should the producers of the Ohio production have had to pay the writer and composer for the rights to produce their show?"

In essence, isn't that what happened? I don't know any of the details of the contracts, obviously, but if the Ohio production team paid a licensing fee for the rights to produce Urinetown, I can't imagine that a portion of that fee didn't then get paid, in turn, by the licensors to the writer and composer. I'm sure the writer and composer didn't sell all of their rights for a one-time fee; they must have some sort of royalty agreement.

DAM* Writer said...

Or, David, was I completely stupid and misunderstood your point?

(That's been known to happen.)

David said...

dam* writer --

No, I think this was my fault, it was late and I wasn't very clear.

You are absolutely correct that a portion of the licensing fee would go to the composer and writer, essentially as royalties (Having made that sweeping statement, I should point out that I have no idea what their contracts actually look like, but that is a reasonable assumption.)

The point I was failing to make successfully was that, if we accept the fairness of the idea that the authors of the music and and book/lyrics of a musical should receive some sort of compensation for the future use of their creative work, we should extend the same idea to the work of a director, the designers, the choreographer.

The mechanism for this sort of "royalty" payment does exist, for designers at least. Every standard union contract (the designers' union is United Scenic Artists) has extensive clauses about future use of the design. The specifics vary depending upon the type of future use, the original venue (there are different collective bargaining agreements for Broadway, LORT theatres, Off-Broadway, etc etc) -- but they all follow a basic formula: for each future use, the designer receives a fee (usually a percentage of the original fee he or she received for the show) that is essentially a royalty payment -- the designer is not expected to do any new work on the design, this fee is solely a licensing fee to use his or her work again. The designer is not even required to show up. Then, if additional work is desired or required, the designer receives a daily rate for that additional work. Alternately, each future use of the design can be done under an entirely new contract, with a new fee negotiated, etc. (This often happens if there is a lot of additional work required, where the accumulation of licensing fees + dailr rate where equal or surpass the fee for an entirely new contract.)

I can give you an example from a show that I've done several times over the last 3 years, and which is currently in previews in New York:

We initially did this show 3 years ago in NYC, and I was paid a fee for my design. A year later we decided to remount the show in LA. The theatre out there was VERY different in configuration, and additionally we were all in agreement that, artistically, we wanted to redesign some of the show. So we signed a brand-new contract for the LA production, and I was paid a new design fee for that production. This year we are remounting the show in NYC again, but in a different theatre from the original. We're essentially using the LA design, but it needed to be adjusted to fit the new space, and there were a few tweaks we wanted to add that we hadn't been able to do in LA, so we signed a new contract for my design services -- my 3rd contract for this show. HOWEVER, the plan is that this production will be remounted in future years (it's a holiday show of sorts), so my contract for this production states that, for these future uses of my design (at this particular theatre) I will be paid a percentage of the fee I received originally, and if additional work is required of me I will receive a daily rate on top of that licensing fee.

So back to URINETOWN. Speaking just about the designers, if their claim is accurate and the Ohio productions used the original designs of the show without paying or crediting the original designers, that is copyright infringement. If the Ohio productions really wanted those original designs for their production, they could have, in theory, paid licensing fees to the original designers for use of their work, just as they paid licensing fees to the composer and writer for use of their work. (It's almost certainly more complicated than that, as it wouldn't really be a negotiation with the designers about using their work, but a negotiation with the original PRODUCERS about using the designers' work, since while designers retain intellectual copyright of their work, the producers usually retain exclusive right to use the design for a period of time. But you get the idea.)

I was mainly just trying to say that using the argument "oh, they've made enough money, they don't deserve more" is faulty unless you apply it equally to the entire creative team (I'm not taling legality here, just theory.) If you think that it's right and fair to pay the writer and composer for the right to use their work on your production, you have to agree that it's right and fair to pay the director, designers, etc for the right to use THEIR work.

Whether or not the Ohio productions were in fact using/copying the work of Rando & Co. is a separate question.

David

DAM* Writer said...

David, I have to confess that I'm running late to a rehearsal (bad playwright, bad playwright!) and have a dog staring at me, who thinks she's about to be let outside... but I wanted to thank you for what appears to be, on a quick skim, a very rational and non-judgmental resonse to my question.

Thanks! Hopefully, this kind of dialogue will help resolve these sorts of issues, among the players. (Of course, I reserve the right to disagree with myself, once I've read your post thoroughly... just kidding.) I'll take a closer look at it soon.

David