Once again, copyright is used by wealthy corporations to censor independent artists – and in this case, to muzzle a feminist critique of the most powerful and popular playwrights in the country.
From a review of the experimental play Thatswhatshesaid:
[Playwright Courtney Meaker] compiled lines from only the female characters in American Theater’s list of the 11 most-produced plays of the 2014—2015 season. Only two of these plays were written by women. According to Meaker’s script, these plays contain 74 total roles, 34 of which were written for women. Of those 34 roles, 28 were written by men. […]
Meaker splits the hour-long play into two acts. In Act I, she presents the lines and stage directions written by men. In Act II, she presents the lines and stage directions written by women. Each scene is composed of lines thematically bound by behaviors the culture polices the most in women. We see woman as sex object and temptress. Woman as angel. Woman as angry witch. The girl, the woman-hating woman, the woman who asks questions and apologizes for everything.
You get the big-picture point pretty early: society forces women to conform to certain harmful and paradoxical gender stereotypes, and America’s most popular plays reflect those stereotypes. Playwrights perpetuate the patriarchy by creating roles for women that reduce them to one version or another of male fantasy or fear, and playhouses make sure those plays have a home.
So it’s a play that remixes parts of 11 plays into a new play with an entirely different message, for the purpose of satire and commentary. That certainly sounds like “fair use” to me – and, more importantly, like the sort of political commentary and experimental art that shouldn’t be censored. I don’t think the law says Thatswhatshesaid should be censored – but if that is what the law says, then the law is pro-censorship and wrong.
(Incidentally, my fellow musical theater fans, the only musical among the 11-most-produced is “Into The Woods.”)1
But Samuel French, the theatrical publishing company which publishes Bad Jews and a few other plays quoted in Thatswhatshesaid, doesn’t see it that way, and about an hour before the show’s opening sent a cease-and-desist notice, demanding the play be stopped. And then Bruce Lazerus, the executive director of Samuel French, left a legally threatening message on Erin Pike’s voicemail, promising to “go after” not only Pike, but also “the presenter and the theater and all the folks connected to it.”:
The venue, understandably not wanting to be sued, told Pike that if Pike defied the C&D they wouldn’t allow the performance to go on. Pike went on anyway, after playing Lazerus’ voicemail to the audience – but mimed all the parts from Bad Jews, while an offstage voice shouted “redacted.” It sounds like a memorable night of theater.
And then came a second cease and desist letter from Samuel French, this time over The Whipping Boy – a play that, due to having no female characters, is never once quoted in Thatswhatshesaid.
A few points.
1) It’s interesting that a feminist critique of a male-dominated art form, is being treated this way. It’s an illustration of how the power of wealth and the power of male dominance often work together – in this case, they’re virtually indistinguishable.
2) I wish I could comment more on the feminist message of Thatswhatshesaid, but I can’t really, because I haven’t seen it. Pike has said that there will be a video, but that was before Samuel French began making legal threats, so now: who knows? If the end result of this is that the play isn’t made available on video, then Samuel French will have succeeded in censoring Thatswhatshesaid.
3) There’s very little question that this falls under “fair use.” The eleven plays (ten, if we don’t count The Whippping Boy) are being substantively transformed.
4) In Blanch v. Koons – Koons, a painter, was sued by the photographer Andrea Blanch, because he used one of her photos in one of his paintings – Koons’ affidavit said:2
My paintings are not about objects or images that I might invent, but rather about how we relate to things that we actually experience. .. Therefore, in order to make statements about contemporary society and in order for the artwork to be valid, I must use images from the real world. I must present real things that are actually in our mass consciousness.
The ruling, which was in Koons’ favor, said:
The painting’s use does not “supersede” or duplicate the objective of the original, but uses it as raw material in a novel context to create new information, new aesthetics, and new insights. Such use, whether successful or not artistically, is transformative.
That seems very applicable to the case at hand.
4) But it probably won’t matter, because it’s unlikely that anyone involved with Thatswhatshesays has the financial means to allow themselves to be sued if there’s any alternative. Which is the fundamental corruptness of the copyright system – for pragmatic purposes, very often the right of fair use is worthless, because very often the cases involve people with truckloads of money threatening to sue people with none.
- A blast of facts from Matthew Everett’s very helpful review: “The most produced plays last year were: Vanya and Sonya and Masha and Spike by Christopher Durang; Outside Mullingar by John Patrick Shanley; Bad Jews by Joshua Harmon; Other Desert Cities by Jon Robin Baitz; Around the World In 80 Days, adapted by Mark Brown and Toby Hulse from the novel by Jules Verne; Peter and the Starcatcher, adapted by Rick Elice from Dave Barry and Ridley Pearson; The Whipping Man by Matthew Lopez; Into The Woods, book by James Lapine, music and lyrics by Stephen Sondheim; Venus In Fur by David Ives. The two women who break into the top 11 are: Nina Raine’s play Tribes, which I wrote about on “Alas” back in March; and Amy Herzog’s play 4,000 Miles. From these 11 plays, there were 74 roles total. 31 of these roles were written for women. Of the 31 female roles, six were written for women by women.” [↩]
- I came across Blanch v Koons in this article by Brian Boucher. [↩]
So what’s the problem?
If it’s just fair use, they can simply ignore the cease-and-desist letter.
If they get sued, they just submit an answer that it is fair use and it’s also a frivilolous lawsuit.
I mean, what could possibly go wrong? All of copyright law is about fair use, apparently.
Otherwise, why are you attempting to do some legal analysis here? Do you think that you kind of know all of that legal stuff anyway? Yes you said you are not a lawyer, but apparently that’s just a formality. Is it anything other than time-wasting and an attempt to showcase your legal knowledge?
Thank you, poi dexter, for your valuable and not at all time wasting contribution to the conversation.
Please review our moderation policies and then, if you like, try again.
It is fair use, and it is a classic case where lawyers can bully people who can’t afford to deal with a huge copyright lawsuit.
Have you flagged Popehat or Volokh about it? They may be able to get some pro bono help.
This is depressing, but thank you for writing about it.
“It is fair use …”
It sounds like it’s an open-and-shut case, and someone could crack this case wide open.
You can defend yourself “pro se”, so I don’t understand what the problem is.
Which is the fundamental corruptness of a LOT of our judicial system. People are blocked from doing something perfectly legal because a person or entity – or even government – that opposes what they’re doing has more money to spend on lawyers. It’s called “lawfare”.
Do you honestly believe this? It’s my understanding that pro se representation is becoming increasingly more common (this is from my brother, who’s a lawyer, in our conversations about a lawsuit I may have had to take part in, which thankfully didn’t happen; I don’t know the actual numbers). But that’s small fish vs. small fish. No one can realistically be expected to defend themselves pro se against an entity like Samuel French. RonF is spot on.
In this specific case, Ampersand is absolutely certain that it is fair use. So what’s the problem?
You get the complaint from the plaintiff, “admit” that your name was spelled correctly (if it was) and deny in your answer the substantive stuff, or say you don’t have enough information and therefore deny.
Mostly people want to also throw in as many affirmative defenses as possible in the answer, but here there is certainty, so you just name fair use as an affirmative defense.
Then the judge does some housekeeping, and then you file a motion for summary judgment. Granted, because there is absolute certainty that this is fair use. Sebastian H is also certain.
Given the absolute certainty as expressed in Ampersand’s opinion, what else are you expecting here? That the opposing attorney is going to do some kind of “tricks” to misdirect the judge (?) (who will decide the motion for summary judgment, no jury comes into play because it is already a legal certainty).
I guess someone has to explain to me how this could go astray if it is certain that it is fair use and if it is certain that this is the only relevant issue here. I just don’t get it.
If I’m following your arguments correctly, you’re objecting to me failing to hedge my words by saying “of course, I’m not absolutely certain this is the case. I’m not perfect, and I am capable of error, and I could be mistaken.”
To me, those things are obvious enough not to need to be spelled out all the time.
For the record, of course I realize realize that I might be mistaken, and that it is possible for intelligent adults to disagree with me.
It would have been better if you had found a way to phrase your objection that didn’t come off as disingenuous and hostile, however. As Mandolin already told you. And you ignored.
* * *
Also, you seem to have the IP address of someone who keeps on coming here under new names, pretending to be reasonable at first but becoming more and more hostile, until at last the comments become actually abusive and you’re banned. At which point you start over under a new name.
While we of course appreciate your efforts and services, I worry that by giving this blog so much attention, you’re neglecting other blogs which might be more in need of tedious trolls. So, although we will miss you terribly (by which I mean, neither I nor anyone else here will give you another thought), it’s time for you to move on to another forum.
Best of luck to you. I suspect you must be desperately unhappy to keep acting like this, and I hope things get better for you.
Update: That’swhatshesaid Receives Third Cease and Desist, This Time from Dramatists Play Service, Inc. – Slog – The Stranger
Just as a general thing, I think it’s a serious problem that the US has a legal system which the vast majority of people can’t afford to use. I haven’t been able to find discussions of the subject. Any suggestions?
@ 11 Nancy Lebovitz
Are you looking for news or opinion pieces, or comment forums like Alas? For the former, I’ve been reading a bit about how the bail system in most states is very hard on poor people. Here’s one example. John Oliver has also done a couple excellent segments on his show on the unfairness of the bail system and the unfairness of some municipal law violation policies, both as they relate to poor people.
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