Copyright in Stage Directions?

Ever since Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868)(No. 3,552), the nature and scope of protection for dramatic works has been problematic. In that case, Augustin Daly's play "Under the Gaslight" (made into a 1914 movie starring Lionel Barrymore) was alleged to have been infringed by Dion Boucicault's play "After Dark." There was no copying of dialogue or characters; instead, the principal focus of the suit was the "railroad scene," described as "the chief value of the composition and its popularity," and as being 'entirely novel, and unlike any dramatic incident by any author before plaintiff." The nature of the infringment was the copying of "dramatic effect ... produced by what is done by movement and gesture, entirely irrespective of anything that is spoken ... the spoken words in each are but a trifling consequence to the progress of the series of events." 6 F. Cas. at 1133.

Palmer's lawyer wrote in a law review article that it was "the first decision which established a property right in incident ... [and which] advance[s] in literary law the doctrine of ... equivalents" found in patent law," T.W. Clarke, 3 American L. Rev. 453 (1869). While this might be dismissed as the grumblings of a losing party, Professor Ben Kaplan, in "An Unhurried View of Copyright" (p. 32) wrote that much of the interest in the scene derived from mechanical stage effects, that Daly had copied from his predecessors, and that Boucicault had made changes in copying the scene from Daly.

Daly's approach to finding copyright in dramatic action alone was endorsed by the Supreme Court in the "Ben Hur" case, Kalem Co. v. Harper Brothers, 222 U.S. 55, 63 (1911), which rejected the argument that such protection would grant protection to ideas. Daly also served served as the springboard for Judge Hand's Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) opinion. Daly has been called the first modern copyright infringement opinion, which may not be a compliment, but it is relevant to a very current dispute.

In Sunday's New York Times, Jesse Green has a long, detailed article, "Exit, Pursued by A Lawyer," about a pending suit in the SDNY before Judge Lewis Kaplan. The suit was brought by director Edward Einhorn who is reported to have alleged that his directorial contributions to the Off-Off Broadway play "Tam Lin" are copyrightable and infringed by their use without his permission. Mr. Einhorn was fired before the play went on, after two months of unpaid work. The play closed after 10 performances and may or may not be revived. Einhorn reportedly seeks $150,000 in statutory damages, an amount said to have reached $3 million at this point. Copyright lawyers will, at this point in the article, already be suspicious, since statutory damages are awarded per work, not infringement.

The suit is said to have been filed in October 2005 and be set for trial in April 2006. For those of us who practice in the SDNY that seems wildly fast. And then there is the registration, No. PA 1-254-494, which was effective December 10, 2004, for a work said to have been published on October 21, 2004, an unlikely characterization since performance is not publication. The claim is in "blocking and choreography script," with preexisting being listed as the script of the play. The claim, is in, other words, for a derivative work, and unlike the Times article, could most easily be read as one in choreography, not for aspects of a dramatic composition.

Whatever the procedural posture, the case is, though, in excellent hands. Judge Kaplan brings to the case a dazzling intellect, a scholar's thoroughness, and a vast amount of experience with copyright litigation, including one directly on point: Thomson v. Larson, 1997 U.S. Dist. LEXIS 13150 (S.D.N.Y. July 31, 1997), aff'd, 147 F.3d 195 (2d Cir. 1998), in which a dramaturg sought co-author status for her contributions to the play "Rent."

The New York Times article canvasses a number of disputes where directors have sought "intellectual property" protection, and provides pictures and some details about some, regrettably in much more detail than about the Tam Lin dispute itself. Of particular interest are the pictures and information about the 1995-1997 dispute between Joe Mantello over his production of "Love!Valour!Compassion!, which is said to have resulted in a decision to dismiss defendant's motion to dismiss. I could not find the decision on Westlaw and Lexis, though.

Defendants in the Einhorn case dismiss his contributions as de minimis: where the play script said "Exit," he said "Exit left." Where the play script said "Pick up book," he said "Pick up red book." Einhorn's lawyer (his older brother) disputes this. One would have to know a great deal about the facts to be able to sort out the merits of the claim, as well as know whether the claim is one for choreography or something different. But on the purely legal side, there are a few matters in play. First, Daly v. Palmer and Kalem Bros. provide sound support for claims of copyright in dramatic meaning shorn of words. The term "stage direction" is, by itself, unhelpful in figuring out whether a director's contributions to the dramatic meaning of a play were protectible. (And, contrary to the misinterpretation of Childress v. Taylor that is so rampant, each person's contribution need not be capable of being protectible on its own, the subject of another blog). What is required is a fact specific inquiry into the actual contribution made.

Then there are the issues of joint authorship, implied license, and status as a derivative work. If, as Einhorn apparently represented to the Copyright Office, his work is a derivative work of the play script, under Section 103, he is unlikely to be able to have a valid copyright without the playwright's permission, which presumably here would be denied. If Einhorn instead claims he is a joint author, then the other joint authors can use his contributions without his permission, subject only to an accounting, and amount which sounds minimal. If no joint authorship existed because there was no intent (the intent perhaps eliminated by his firing before the play was produced), and his contributions were protectible (and severable from the play), then one reaches the issue not fully reached in Thomson v. Larson, aside from implied license: what happens when someone has contributed copyrighted material but is not a joint author?