A Case for the Stage Director's Copyright

by Edward Einhorn

Recently, I was involved in a drawn out and highly publicized dispute between myself and Mergatroyd Productions over my direction of a stage play entitled Tam Lin. The dispute centered around the concept of a director's copyright. Mergatroyd had fired me the day before the opening of the play and then used, I contended, the blocking and choreography I had created for the play without paying me for my work. Judge Kaplan's final decision avoided the question of copyright, awarding me money for the implied contract we had instead—that I would be paid, and that Mergatroyd Productions would be able to use my work. This made the copyright question moot.

However, the questions raised by the dispute caught the eye of The New York Times, American Theater, and Back Stage, not to mention the Society of Stage Directors and Choreographers, the Dramatists Guild, and the theater community in general. The question of whether a director can copyright his or her work is one that is still to be decided by the courts. This is the first such case to actually come to trial. An earlier well known case involved Joe Montello, whose staging of Love, Valor, Compassion was used by a regional theater. That case was settled (Mergatroyd was uninterested in a settlement, in my case), which meant that, it, too, highlighted the question without solving it. I have some ideas, which I address at the end of this essay, on an approach towards a solution.

One of the most important aspects of the dispute is to emphasize that the question of director's copyright is not a director-playwright issue. I consider myself a playwright as well as a director, and aside from my experience with Tam Lin, my experiences with other playwrights (and for that matter, other directors) have all been positive. It is unfortunate that, in this case, the playwright, Nancy McClernan, also happened to be the co-producer, along with Jonathan X. Flagg, her partner and boyfriend. That made the basis of the suit confusing for some, a confusion Ms. McClernan encouraged by repeatedly stating that I was suing her as a playwright or that I was claiming copyright to her play. Neither of those claims was the case, of course.

The director's copyright issue is primarily a producer-director question, covering instances where a director (such as myself) is not compensated for his or her intellectual property contribution by the producer. It is also a director-director question, covering cases such as Mr. Mantello's in which one director has stolen another director's intellectual property.

There are some situations in which directors do, by the playwright's consent, gain a portion of the royalties of the play. This is because they are working as a dramaturg, a whole other aspect of copyright that my case didn't examine. This aspect of copyright (which was covered in the court case about Rent) is, I think, clear cut, legally. Judge Kaplan, the same judge who adjudicated my case, made a ruling in which he stated that if the playwright intends the dramaturg to be the co-author, the dramaturg (or by extension the director serving as dramaturg) can claim a portion of the royalties. If not, then not. Of course, a playwright can also make a contract stating otherwise, but that is a voluntary action on the part of the playwright.

Thus the scenario in which (as The New York Times envisioned) everyone, from directors to designer to actors, would get a share of a playwright's ever-shrinking pie, seems far fetched. As it should be, I think. Playwrights are compensated poorly enough without having to further shrink our possible profits. Even the most successful playwrights (or directors, for that matter) make less than, for example, the average lawyer's salary.

Yet it is those dramaturgy cases that I think are the cause of the fear in the Dramatists Guild at the idea of the director's copyright. The false impression seems to be that giving a director ownership of his or her work (and now I am speaking specifically of the creative work involved in blocking a play) would somehow threaten playwrights. Ms. McClernan seemed convinced of the idea that I was somehow threatening her creation. Even when corrected by the judge, that conviction did not seem to waver.

The fallacy is that thinking that giving a director the power to protect his or her own, distinct property somehow takes away from the power of the playwright. There are always those that fear that if someone else is given power, that power somehow will chip away at their own power. I am sure that if directors had established copyrights and playwrights did not, that many directors would be just as fearful of the prospect of a playwright gaining ownership of his or her work.

However, the healthiest systems, in my opinion, are those that give equal rights to all. A director's work is no threat to a playwright. Copyrighted blocking should no more take away from a playwright's royalties than copyrighted choreography takes away the royalties of the composer or lyricist. It's simply a separate entity. If the text is used, the playwright will get royalties. If the staging is used, the director will get royalties.

It is true, of course, that playwrights often include stage directions in their plays. I myself try to keep them to a minimum, just illuminating the text when necessary, but some playwrights put a lot of importance and thought into those stage directions. It is their opinion that those stage directions are theirs and their fear that they will lose ownership of those stage directions if a director is allowed to copyright blocking.

This is a valid concern, and should probably be addressed by any definitive ruling on copyright. However, it is merely a problem to be solved, not a reason to deny the right of a director to copyright his or her work. There are many collaborative endeavors in which attribution and ownership is a thorny problem. But any such discussion must begin with the assumption that such rights of ownership exist. For a playwright to claim, as was claimed in the case I was involved in, that anything a director creates while directing a show belongs to the playwright is patently absurd. This is not to say that there aren't absurdities that have been written into law, at one time or another. Fortunately the law here is still open, and my hope is that, when the issue is finally decided, it will be decided by a judge who takes the time to consider the issue fully and has the ability to understand its complexities.

In my opinion, the question about stage directions has two forms, much as a play has two forms—the form in which it is written down, and the form in which it is performed. When examining the written play, the answers are easy— obviously, the stage directions then become part of the text. But in performance, those stage directions are no longer part of the text. One can have the most beautifully written stage directions in the world, but unless the stage direction is said out loud, no one in the audience will know what it may have been. The fact of the matter is that, in practice, often the playwight's stage directions have to be altered to accommodate the actual space of the performance. And though stage direction may help to inform blocking, the blocking of a play inevitably includes many, many more moments of blocking than even the most meticulous playwrights can anticipate. Though blocking can be recorded on paper, it ironically cannot be created purely on paper. It must be done in space, with actors interacting with a stage.

I would argue that, in a stage performance, the stage directions a playwright includes may provide ideas for blocking, but they are not the blocking itself. This, once again, is a frightening idea for some playwrights. It makes them afraid they will lose control over what can or cannot happen onstage. It makes them afraid that they will have no power to prevent a poor or misconceived performance, which in turn will give the audience a poor impression of the play. But the truth is, the power to prevent a poor performance doesn't exist. The performed play relies, in its very nature, on the talents and ideas of many, not just one. Unless the playwright is directing, performing, and designing the show, the play's quality onstage can never be completely controlled. And by grasping for that illusory control too hard, the play can even be damaged.

Even the Beckett Estate, which keeps as tight a hold as any on the words and intentions of Samuel Beckett, recognizes a difference between stage directions and the rest of the text. Although Samuel Beckett may be the only playwright I know who has actually provided what could be considered a blocking script for his own texts (one such exists for Waiting for Godot), his estate does not insist that productions keep to that blocking exactly—a flexibility that would not, at all, be found if a director tried to change Beckett's dialogue. And indeed, though that blocking script exists, most printed versions of Waiting for Godot contain a much more limited set of stage directions. Not that the estate has given up any control—even if the stage director's copyright were to be firmly established, the royalties to Waiting for Godot could come with as many caveats as the estate cared to add.

Beckett has also written that most unusual form of play—the play consisting of nothing but stage directions. I would agree that in such cases, the stage directions take on a different significance. Once again, Beckett has created blocking scripts, but at these times it has nothing but blocking. It is very different from his scripts that include dialogue, because these plays are made of series of actions, not a series of words. Yet what better argument can there be for the fact that blocking should be copyrightable? If that series of actions that Beckett has notated can in fact be considered a script, which of course it can, then any series of actions can be considered a script.

Does that mean that every time a director creates a moment of blocking, it is deserving of copyright? Probably not. Copyright demands minimal creativity, and if the director sits with the script and says no more than, for example "the stage direction says exit, so perhaps that means you should exit," then of course this does not exhibit minimal creativity. However, the threshold for minimal creativity is low, and rightly so, because even the simplest blocking instructions can have an effect. For example, in my case, the lawyer complained that I had done no more to one stage direction than change it from exit to exit stage right. He of course was picking out the most minimal moment of blocking from my blocking script, to make a point, much as if he had picked up a book and said, this contains the word "also," certainly the word "also" in itself isn't worthy of a copyright. The two words "also the," would not be worthy of a copyright either, nor even three words, such as "also the man," but the whole text of word after word after word. Similarly "Exit Stage Right" is but one element in a large work that creates an overall impression. For, as you watch the play, you may begin to realize that everybody exits stage right and everybody enters stage left. And then you may realize that everyone on stage is going round and round in circles. And suddenly you don't have some isolated moments such as "Exit Stage Right" and "Enter Stage Left," but instead you are viewing the movement as a whole, and that movement has artistic meaning.

One other fear that has been articulated as an excuse to deny directors copyright is that it would somehow inhibit future productions of the play. In other words, once one director decides that the correct blocking in his or her show would be to "Exit Stage Right" (and I use this example again as the most simple blocking—of course most blocking moments are much more complex), no one could ever "Exit Stage Right" in another production again. This supposed problem would affect other directors more than anyone else, but interestingly, no directors bring it up as a worry. That is because, in order to enforce copyright, one has to show that what was stolen is so extensive or distinctive that it could have come from nowhere else but from someone else's work. Those opposing the director's copyright envision scenarios where the director needs to look through every possible production of that particular show in order to avoid infringement. Of course, the opposite is true. If you have not seen a production, it is impossible to steal from it, so it would be impossible for any coincidental overlap to be considered an infringement.

I imagine that the same alarmist reaction occurred when the choreographer's copyright was established. How will we ever be able to stage Fiddler on the Roof, those same people may have asked. Once one community theater choreographer has had the actors dance the hora, is that it? Will we never be able to dance the hora again, without a license from that choreographer? Will the courts be filled with choreographers suing choreographers?

Such nightmare scenarios have never occurred, of course. There is provision to figure out whether the choreography was actually stolen and whether it is considered distinctive enough to be deserving of protection. I am certain there have been a hundred versions of the Sound of Music with similar choreography for "So Long, Farewell." But the courts are not filled with choreographers arguing as to whether the children made similar motions as they said "cuckoo."

Similarly, community theater directors will not be going to court every time Stanley Kowalski goes to his knees while yelling "Stella!" on the bottom of a stairwell. The dispute will only arise if there is reason to truly believe the creative work has been stolen. And usually, when it has been, it will be obvious.

I have used, up to now, only the simplest examples to illustrate blocking. But blocking can be as complex and infinite as the possibilities of movement. Plays do not consist of mere exits and entrances, they consist of a constant flow of bodies from place to place and from position to position. The way the actors are placed, the position they are in, how long they stay there—all these things create pictures, and all those pictures create a mass of information. As the cliché goes, a picture is worth a thousand words. What does it mean if one character is standing next to another? Behind the other? If one is standing while the other is sitting? While the other is lying down, or crawling, or jumping into the air? From moment to moment the picture changes—and if it doesn't change that's another event of note. How different is a scene in which two characters are standing next to each other, talking, rather than a scene in which the characters are on opposite sides of the stage, facing away from one another?

And that only begins to talk about the possibilities with two characters on stage. How about with three, or four, or a hundred? The possibilities are literally endless. Scenes staged in different ways can convey totally different moods and ideas, even with the same text. Numerous possibilities can exist within the text, but it takes blocking to bring them out. I have seen perhaps a dozen productions of Hamlet, both good and terrible, but I have never seen two staged the same way. And I have never seen two from which I took the exact same message.

However, directors face not only fear, but lack of understanding, when discussing these points. It can be very difficult for the lay person to see what a director does. There is an instinct, when watching a play, to believe that it just…happened. That the words could only sound like they are sounding, that the actors could only be standing where they are standing. Those unused to blocking shows themselves absorb the artistic information, but they absorb unconsciously, without thinking. Oh, they think, she's like a mother to him, without really knowing they received that information by seeing her stroke his hair. Oh, they think, he's really powerful, without realizing he is positioned in the most compositionally powerful point on the stage. It is only when the movement is made deliberately unnatural that the average lay person begins to notice—and even then, absorbed in the illusion of theater, the audience member may credit the character, rather than the staging.

The problem is made even worse by the fact that, when looking at blocking notated upon paper, the average lay person sees almost nothing. Even an experienced director can have trouble envisioning a production from mere notation. Yet notation, unfortunately, is about the only practical way to keep track of blocking. Although videotaping may also work, the reality of theater is that it is very difficult to videotape rehearsals and performances under the constraints of a variety of union contracts.

Fortunately, the laws regarding choreography state that you do not need videotape in order to place it in a fixed form for the purposes of copyright. As long as the choreography is clearly notated, preferably but not necessarily using one of the standard forms of choreographic notation, it can be admitted for copyright.

Judge Kaplan seemed unaware of this, in my case, possibly because he hadn't researched that far, knowing that by deciding the implied contract issue in my favor he would obviate the need to look further into the copyright issue. However, during his decision, he mentioned as an aside that he felt my notation would not have been sufficient for copyright, since he felt I would have needed to submit a videotape to the copyright office. Of course, the rules surrounding blocking have not yet been established, but considering the example of choreographic notation, I would suspect, very strongly, he is wrong. Judge Kaplan was clearly irritated that a case of such little monetary value was before him (and stated as much), and his statements regarding notation seemed to express his irritation more than any sort of legal analysis.

However, an attorney, John O'Connor, who was representing me along with my brother, David Einhorn, suggested, very wisely, that directors should make a system of standard notation that they can use. Of course, there are already some standard notations. In fact, when I was being asked about my own notations, written by hand in my script during rehearsals, I had a discussion with Judge Kaplan on that subject. I told Judge Kaplan I had transcribed my notes into a computer file. He challenged the word "transcribed," because, as far as he could tell, what I had typed in and what I had written by hand seemed to be different. So I explained to him I had used a sort of shorthand, typical in directing—using X to mean cross, using SR to mean Stage Right, drawing a little circle with a letter inside to indicate a character onstage, etc.

So I propose, based on Mr. O'Connor's suggestion and Judge Kaplan's objections, that there be a system entitled Standard Directing Notation (SDN), for use in copyright matters. As I say, it already exists to an extent, in a casual form. But giving something a name (not to mention an official-looking abbreviation) makes it more tangible. It is equally valid, of course, with or without a name, but by having a professional standard that can be referred to in court, it may take us one more step to the very important goal of establishing the right to copyright a director's work.