Copyright or Wrong?

by Eliza Bent

in American Theatre magazine

Navigating licensing agreements and copyright laws can be a thorny and expensive endeavor. What is the line between adaptation and overstepping artistic and legal boundaries? The following open letter from Boxcar Theatre’s artistic director is an unusually frank perspective on his company’s struggle with such issues. What do you think about his comments?


An Open Letter to the Theatre & Arts Community
by Nick A. Olivero
June 27, 2011
Greetings!

I am writing this open letter to the theatre community for a few reasons. Most importantly Peter and I believe in transparency. There are a lot of people in the community who have a vested interest in Boxcar and have a right to know. There are also many theatre artists who face the issue we are faced with or similar issues regularly when creating their art.

Due to certain artistic choices implemented by myself – the director – Boxcar’s production of Little Shop of Horrors has been closed by the organization that owns and licenses the rights. This was effective immediately. I do not hold the licensing organization accountable for doing their job.

The production I created violated the terms and conditions set forth by the contract my company signed to license the show. I made alterations and changes to Alan Menken and Howard Ashman’s script. I took elements from the original 1960 film version of Little Shop of Horrors directed by Roger Corman and combined them with the original 1982 off-Broadway musical as well as the 1986 film version. I borrowed from Rocky Horror Picture Show and wrote bits of dialogue myself to help blend the material seamlessly. These changes prompted many to buy tickets, garnered us rave reviews and sold out houses. It was certainly these changes that caught the eye of Playbill.com who wrote a compelling article regarding my concepts. And it was that article that instantly drew attention to our production by the licensing company.

On Saturday June 18, 2011, representatives from the licensing agency came to watch our production. I met them before the show and explained the reasons behind my actions and that I understood the consequences. The cast was also prepared. We could have restored the production to the original script, we could have canceled the show and left them to wonder, we could have faked a medical emergency or technical failure – believe me, all of these scenarios crossed my mind. In the end, we chose to be honest and share the production we had created. Not because we felt guilty, but because we felt proud of our work. Work that Robert Sokol of The Examiner says is “good and gritty” andKevin Thomas of the SF GLBT Arts Examiner calls “better and cheaper than Broadway” and when Nathaniel Eaton of SFWeekly saw it, he said, “thisbrilliantly conceived and designed production is devilish fun.” Jay Irwin, a reviewer from Seattle who writes from BroadwayWorld.com attended Saturday June 18th. He wrote, “Boxcar Theatre has taken a pretty standard show and shown what ingenuity and innovation can do to make it that much better.” Donna, an audience member who had never seen a Boxcar show emailed me three days before the 18th to say that her two daughters were “on the edge of their seats and the edge of the curb, eyes as big as saucers the whole time.”

That was the work we presented.

As expected, we were sent notice to cancel all future performances, which we have. And although they may have the right to say whether or not we can perform one of the productions they represent, they do not have the right to say whether or not Boxcar can present work in the future. Let me be clear: I do not hold anyone else responsible. My actions led to their response. I am simply stating that as an artist we still have the freedom to create. And that is a very special gift.

The pressure of legality seems to confront artists and producers more and more lately; namely on the smaller levels. There are hundreds of less than $100,000 companies and individual producers in the Bay Area alone. Permit me to describe a familiar scenario: If not creating original work, a producer pays a royalty fee to a licensing organization for rights to a show. When the total budget might be less than $10,000, and paying actors and designers something respectable is important, it is often a challenge to rationalize such costs. Sub-leasing a venue often cuts deeper into that miniscule budget. More than likely the building hasn’t been permitted to hold more than 49 people. Many of us glide over the fact that those 49 people include everyone in the building: the actors and stage manager, too. Your set may infringe upon the 32 inches that is legally necessary for wheelchair accessibility (even though in your history you have never needed to accommodate such a patron). You might want a full black out and consider putting black fabric over the exit signs. But never mind that dilemma because the second egress gets covered by a black curtain in an attempt to create an “offstage” location for quick changes. All the while you are selling beer and wine in an effort to break even. You’ve convinced yourself that by asking for a “donation” somehow ABC won’t take an issue. These aren’t just a few instances we’ve encountered at Boxcar, these happen at every small to mid-size company I have ever worked at; companies that have been around for thirty plus years.

Between not obtaining the proper rights and any other possible legal infringement you can imagine, Peter and I have knowingly and actively put our company and our reputation in jeopardy with every single production we have created – with the few exceptions of those original pieces. But to be clear, the only compromised relationships have been with the institutions with jurisdiction to give us permission to create our art, not with those who receive our art.  For those artists who create with us, or audiences who watch what we create, and for ourselves, we hold a different opinion.  Sometimes we are questioned whether or not we have the right to do this or that, but not out of malice, only curiosity.

The environment we live in is one that protects certain intellectual ideas from being tinkered with. And for the most part it can be argued that these laws are in place for good reason. But I have my argument against it, and that belief has provided a moral compass for me to create the work I create. Here is that belief: If ‘we’ can collectively agree that William Shakespeare was the greatest playwright of all time, yet every producer, director, actor, and playwright deems it appropriate to cut and revise his work, then who is to say that any other writer shouldn’t be edited as well?

I don’t believe I have ever had an original idea. I think I make other ideas my own. And “better” is a relative term, I find “unique” much more suitable. West Side Story is a take off of Romeo and Juliet, Little Shop of Horrors was preceded by a film version by the same name. Andy Warhol made a splash with someone else’s soup can designs; Shepard Fairey forged a lucrative career with the Associated Press after a court battle depicting an image of Obama. I wonder if the president got a cut? If only turning a profit was the catalyst for our situation. The reality is we needed to sell out nearly every performance plus the extension just to break even. How’s that for a business model? But adaptation is all around us. Those who don’t adapt will surely die. Did someone else say that? Darwin something or other? Couldn’t be. I shall take credit. I wonder if Charlie Kaufman would take issue if I decided to create a stage production of his film screenplay Adaptation, which is based off of Susan Orlean’s non-fiction book The Orchid Thief? Maybe I should ask John Laroche, whose real life story prompted the book to be written, how he feels about it.

I can stand behind a playwright’s first production needing control, even subsequent productions to a point, but if you see the one-millionth performance of Death of a Salesman and it is set on the moon, I think we can all agree that it was perhaps just a bad production. We all know well enough that Miller’s text is a national treasure. We will never know though if that production of Salesman could work on the moon for it would surely be shut down. And I commend playwrights like Charles Mee who respect and appreciate the artistic process of those who follow him by allowing such a creative spirit to exist with fair use of his work.

So I present my situation as a word of caution. I would never suggest that you shouldn’t create your own work and use an existing source as inspiration. I would say, be prepared for the consequences of creating such work. We are a small company, about as small as they come. But with big ideas, people begin to notice. On Saturday June 18, 2011, the course of Boxcar Theatre changed forever. Our art will now be subject to the rules and regulations set forth by congress, a select group of artists who lived long before me, and politicians and other organizations with pockets much deeper than mine. I could attempt to forge relationships with writers if they are still alive or with their estate, if I have such means to do so. But given that my means are limited, we will have to make certain artistic sacrifices beyond our control. On the up side, there is a lot of good material out there in public domain, and there are some artists, like Charles Mee, who are reachable and amenable to changes with their material. This year we are performing Sam Shepard in repertory, I imagine Charles Mee might be next on our list, and I offer him an invitation to view our creations. I can promise you, that Shepard will remain intact, so never fear, licensing agents.

I entered into an agreement. I knew those terms and I knowingly broke those terms. The licensing agent had every right to come after Boxcar from a financial standpoint; as of today they have not, and I am grateful. I can assure you that the financial hit we are taking by closing prematurely would only be magnified by a lawsuit.

We will continue to create. New work, old work, work we found underneath a rock. We will do it on a bus, a theatre, a living room, outside on the street. It is a gift to create. But I will create, for the time being, within the confines of the pieces of paper we sign.

I wish every artist the best of luck, and know that any material I should write or create, or anything Boxcar should create will be free to use and in public domain. Until you start turning a profit, that is.

Sincerely,

Nick A. Olivero, Director

  • David Logan-Morrow

    It’s a sticky question as to how far a director of a play can go in ‘altering’ what’s on the published page. Naively I might say that ‘it’s between the director and the playwright’ coming to terms with minor/major changes to a script. But when the playwright’s not available, then what?

    A dramatic work, read in much the same manner as an essay, a short story or a novel, is one thing but to breathe life into it as a living theatrical production is another, and the terms of copyright infringement should apply differently and permit some leeway to the director in pursuit of his artistic vision for the piece.

    Should a director be expected to duplicate bit by bit the exact original production? I say no. Where is the creativity in that? A director, to some degree, should have the freedom to interpret the play as he sees fit. However, directors should be held accountable for making extreme changes that alter or deviate from the writer’s original intent.

    I would argue that unless the playwright wishes to direct every production of his/her play or musical he/she must understand that by putting the work ‘out there’ into an artistic arena and into the hands of a director, and actors as well, this then becomes, if you will, a collaboration of sorts and that by doing so he/she, whether present or not, must be willing to accept that some new ideas, concept, or vision might emerge regarding the work, something which was not necessarily in the writer’s mind in the first place. One might cite the productions of COMPANY and SWEENEY TODD ‘re-invented’ by director by John Doyle as examples of works that deviated somewhat from the original. Had Sondheim ever thought of putting the orchestra on stage with the instruments in the hands of the actors? This is not to say that I condone, without valid reason, changing words, pages of dialogue or the names of characters or even the inherent structure of the work. I must admit that in several productions of Shakespeare I have reorganized several scenes in order to make for a better flow.

    A number of years ago in Los Angeles I was to direct a production of two one-act plays by James McLure jointly titled “1959 Pink Thunderbird” (“Lone Star” and “Laundry and Bourbon”). Initially the rights were given but since this was to be a professional production McLure felt he needed to be present during rehearsals. Unfortunately he couldn’t and the rights were withdrawn.

    In my experience a clean script, free of all blocking and other assorted comments for the director or actor, should be available (or it can be retyped); otherwise. the first thing I will do is to instruct a cast to mark out most of the blocking, and in some cases, emotional suggestions (e.g. ‘said with great sadness’) included in their scripts. I feel this, for the most part (unless it is totally essential to the action of the piece such as entrances and exits or actions e.g. John takes a large kitchen knife and kills Sally), not only hinders the actors in the development of their character but, in general, the working process of getting the play on its feet. Does this, in itself, violate the agreement with the licensing agency such as MTI or Samuel French? I make this decision for several reasons: 1) I suspect that most of the blocking that exists in a published script was not so much put there by the playwright but, in most cases, by the stage manager to document the original director’s work whose vision as to how the actors should move about the stage may not necessarily coincide with mine and 2) that once the actors begin to make the roles their own, they may want to move about the stage differently than what is suggested. Should I be penalized for copyright violation?

    Tennessee Williams goes to great lengths to annotate his scripts. How closely need these comments be followed? He was also notorious for attending productions of his plays when one was within traveling distance and having them closed down because he did not approve of one thing or another.

    For Beckett to object to an all female cast, even when the entire point of the play is retained is a bit ludicrous. How do you present a production of “Waiting For Godot” at an all girls school? This also begs this question … for me anyway: Though I would not entertain this concept, I wonder, were August Wilson alive today, would he have sanctioned an all white cast for one of his plays? (Has it been done?)

    Should a licensing company that handles a play where the word ‘nigger’ is infrequently used disallow any production by, say, a high school group, who want to honor the importance of the piece while at the same time feel, out of necessity, that that word should be cut?

    All in all I think each work, to the extent of how much change it can take on before it becomes too distorted, must be dealt with individually and with discretion by the director.

    A director who wishes to ‘put his mark on the world’ by doing something ‘revolutionary’ with an existing dramatic work, particularly one that is not in the public domain, might do better to rethink his/her reasoning behind such a decision and perhaps set out to create something original and not try to improve on something that is already proven to be successful as written.

  • Jack Worthing

    That you would blithely ignore the suggestions of Tennessee Williams, a genius who knew what worked on stage better than you ever could…well, that says a lot.

  • Barbara Ann Cecchetti

    First, I would like to say that I really respect Nick Olivera and The Boxcar Theatre for taking responsibility for violating the conditions of their contract.
    One lesson here is that contracts entered into should not be broken. When they are broken, there are likely to be consequences. However, the bigger lesson is that any play chosen by a theatre company to be produced was first someone else’s art. Contractual, or not, respecting the conditions of the playwright, the original artist, is necessary to preserve the integrity of the piece. We “borrow” these pieces usually with a lot of latitude allowed for interpretation. If there are production conditions we don’t intend to respect we should choose another piece or write our own. It’s never acceptable to violate another person’s artistic sense of his own creation. We, if we wish to be respected as artists, must first be respectful of the art of others.

  • Logan

    You talk an awful lot about creating art and being an artist. It baffles me that you have such little respect for the artists who created the works you chose to produce. It’s their work. It was their money, sweat and time that went into its creation, and, perhaps most importantly, their name associated the work. Regardless of whether your audiences are entertained by what you made or not, are you purporting that artists should have no say in what happens to their work after an initial production? I find that pretty ludicrous. If you want to make changes, ask the writers. Theatres do it all the time. But the creators deserve a say in what happens to their baby. Anything less is unbelievably disrespectful and artistically stifling.

  • http://zachciaburri.carbonmade.com Zachary

    There are only two reasons that a playwright licenses his work… The first being to provide other theatre’s the opportunity to create, play, experiment and produce new art that has evolved from something else. The second is to turn a profit. Sadly, the majority of playwrights license to return a profit and leave no room for the other artists to create. Who says theatre can’t be this way? If the general audience had been trained to know that what they see is a group of artists representation of a specific work written by another artist I think our world would be a lot more interesting. It would attract more of the patrons we need to survive, there would be room for more discussion, and most importantly it would be so artistically fulfilling. And as artists isn’t that what brought us here? A slightly selfish urge to express ourselves in a collaborative art?

    I say way to go Nick Olivero.

  • http://www.fusiononthefly.com Karl Wilder

    Little Shop is such a good show as it is written.

    Anyone with real creativity and talent could have made it work without revising it; adding material; or stealing material from Rocky Horror.

  • Busker

    I am baffled by those who would deride this person for creating. If he did not respect the original artist or material, he would not have chosen it to adapt. It is patently ridiculous that laws exist which protect creative works from being adapted in the first place. At worst, you might fault him for not calling his show an “adaptation” of LSOH.

    Just because something is legal, doesn’t mean it’s right (and vice versa). How many of you would buy clothes that you could never let someone borrow or that you could never wear other than how it was designed? Would it make sense to you that the sellers of you favorite canvas tell you what type of paintings you make put upon it? What if your local theater could demand you not perform your original work? One day, the law might allow all of these stipulations, but that doesn’t make it right.

    What does it mean to you to “respect someone’s art”? People co-op my art all the time. They are welcome to it. They are not me. They do not have my talent or my magic. No work they could conceive will ever take away from my creative ability. Where one piece of mine might be copied by another, I will create three more works to pop up in its place. By the way, I am a commercially successful and full-time artist. My point is, no one is me and therefore, no one can truly steal my creations.

    What if someone adapts or outright steals my creation for inclusion in a raunchy porn flick? What if people come to think it’s my doing? I will have to tell them it’s not. Clarifying this mistaken identity is far preferable to having a system in place where governments and lawyers can tell my fellow artists how they can create.

    I say “BRAVO” for standing up for what you believe. Even if I agreed with the laws and disagreed with you, I say “BRAVO!” You are a wretched fool if your concerns for being legal outweigh your inner truth.

    Nothing is ours alone once it reaches the public. Such a desire is contrary to laws of nature. Anyone who’s ever played a childhood game of “Telephone” knows that. Think of that the next time you issue a C&D to a circle of kids.

  • Jack Worthing

    There’s a big difference between ‘co-opting’ — taking small pieces and using your own voice to fashion a brand-new, unique whole — and making a sloppy mish-mash from substantial chunks of work, then misrepresenting to the public. He’s not welcome to that. Nick isn’t just a thief; he’s a lazy thief. And Busker, you’re a sanctimonious egghead. There are a thousand different ways of arriving at the same place, a thousand right choices. Play with my work. Experiment with it. WITHIN THE WORLD I’VE CREATED. Any play worth doing more than once has a big enough world to allow that. Want to make a new one? Write your own. Don’t drag my name through the mud and steal money from my pocket.

  • Michelle Ianiro

    I’m curious Jack, did you see LSoH at Boxcar? Because if you did, there is no way on this earth you could call it “mish-mash” or sloppy. I was in the audience the night MTI was there. Even though these men had a job to do, make no mistake, they thoroughly enjoyed the show.

    What happened at Boxcar Theatre is done every day in theatre. The only difference here is Nick Olivero’s production got noticed (because of all the rave reviews) and subsequently shut down.

    Any change any director makes in a show is a violation no matter how small. I have been performing in theatre here in our lovely and diverse Bay Area for the past 15 years and nearly every show I’ve been in has been “tinkered” with in some way, from taking songs out, cutting whole chunks out of scenes, and even adding scenes that a director wrote just to give a character “created” for me to play could have more to do onstage!

    I am an African-American published playwrite with copyrighted work, an actor and producer! I say Thank You to the Nick Oliveros of this medium, whoe are unique and creative and yes, brave enough to put name and reputation on the line to Think Outside The Box! I owe my career to directors like him, otherwise I would never have played Agwe in OOTI, or had an entire chatacter created for me as in HOW TO SUCCEED…and in SWEET CHARITY, or been able to duet “Superstar” with my Judas in JC SUPERSTAR…the list goes on.

    Everyone weighing in, all I ask is that you be honest about your part in altering works to fit the needs and creative drives of your company and STOP THE NAME CALLING and rude commentary. We are afterall, supposedly on the same side here. Creating the kind of theatre that is exciting and relevent and life changing.

  • Daniel

    Okay, here are my thoughts:
    1) Regardless of the legalities, it sounds like this production of LSOH was INCREDIBLY well received by critics and audiences alike, which I’d argue proves that the director had genuine artistic merit in what he did.
    2) What got the director in trouble here is simply this: Regardless of artistic merit, it would appear that he knowingly and flagrantly disregarded the terms of the contract that he had agreed to. I would agree that the standard MTI license is highly onerous and stifling to creativity, but nonetheless, it’s NEVER a good idea to shake hands with someone and then stab them in the back by not honoring what one agreed to. If you don’t like the terms of the license, why agree to it in the first place?
    3) All this being said: I do wonder if a new kind of license for theatrical works would help, maybe something along the lines of one of the Creative Commons licenses:
    http://creativecommons.org/licenses/
    4) Here’s also an example of screenplays being published under a CC license:
    http://www.26screenplays.com/
    5) Still, I’m not sure if a CC license is THE ideal. If I were a theatrical playwright, my ideal license would be one that allowed my script to be freely copied and redistributed, and derivative works to be made, performed, and freely re-distributed, just so long as I got acknowledged and paid a certain amount for every performance. I also wouldn’t want videos of the ENTIRE performance to be made, sold, or posted publicly online. Still photos, promotional videos, and archival videos would be okay though.

  • Jason Robert Brown

    This is weird, did you guys delete all the comments?  Mine included?  What’s the point of encouraging discussion if you’re going to make it all go away?

  • Gus Schulenburg

    Jason,

    I’m concerned when we switched over to Disqus comments that some past comments are now hidden – that was definitely not on purpose, and I’m grateful for you bringing it to our attention.  I’ll see what I can do to restore them.

  • CLS

    Shakespeare is in the public domain. Little Shop of Horrors is not. And just because audiences and critics liked your production, doesn’t mean it was ok to do.

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  • jon m

    seems to me that boxcar is more interested in playing fun with their own circle of friends and much less about real theatrical productions.

  • Emily

    I’m a law professor teaching a copyright seminar to arts managers. I’ve been searching the web for your comments on this issue for quite some time. It’s too bad that they’ve been removed.

  • Jason Robert Brown

    I have found a copy of my original comment, dated June 30, 2011. I’m reprinting it here:

    Jessica alerted me to this article and to her response, and weirdly
    it is exactly one year since I posted my blog about Brenna, so perhaps
    it’s appropriate that I should be wading back into this again.

    Other
    than agreeing with the particulars of Jessica’s commentary (if not
    quite the tone of amazed aggrievement), I only want to make one
    additional point: Emma Rice’s production of “Brief Encounter,” presented
    on Broadway last season after an enormously successful run at her own
    Kneehigh Theatre in the UK, adapted the screenplay of Noel Coward’s film
    by blending it with an earlier play of Coward’s, several Coward songs,
    puppetry, projections, and a miraculous array of visual gestures. She
    was not thwarted in her desire to do this, she simply asked permission
    and presented her ideas to the rights-holders. This company that works
    out of a series of barns in Cornwall is not better positioned to do this
    than a well-reviewed small theatre company in the Bay Area.

    The
    problem that Nick doesn’t seem to want to acknowledge is that the words
    “LITTLE SHOP OF HORRORS” are what sold his tickets. He needed the
    authors’ work in order to do his job of making wonderful, thrillingly
    creative theater out of it. But to suggest that those authors shouldn’t
    be allowed to collaborate (by their approval) in his process is grossly
    unfair. With all the extraordinary artists in the Bay Area, particularly
    those who work at his theatre, why didn’t Nick just write a new piece?
    It could have been a horror musical, maybe about man-eating pigs or
    something, and it could have had songs by local writers, and all the
    fantastic ideas that Nick could fit – it didn’t have to be much
    different than “Little Shop” at all, it just needed different words and
    characters. I suspect the reason Boxcar didn’t choose to do that is
    because that show might not have sold any tickets; writing something new
    is a risk. Doing “Little Shop of Horrors” is less of a risk, because
    somebody already wrote that for you and proved that it worked. Of COURSE
    you want to use that. But we, the authors who take those risks in the
    first place, do not want our work devalued on either a fiscal or
    creative level.

    If you want to put “Death of a Salesman” on the
    moon, it is because Arthur Miller’s work inspires you to do that. You
    owe him the respect to do it the way he asks. Charles Mee, an
    exquisitely gifted artist, chooses to allow you to interpret his vision
    infinitely more freely; that’s his choice. You seem to respect Charles’s
    choice more than Arthur Miller’s.

    As authors, we all agree that
    at some point the work will be taken out of our hands. The current
    copyright law, flawed though it may be, allows us to keep a certain
    amount of control over it for a certain period of time. We are all
    grateful that that protection exists. And we are all eager to work with
    exciting, young, bright, combative, challenging directors to bring our
    own work to life. Plenty of avenues exist to facilitate that
    collaboration legally and respectfully; it is a shame that Nick chose
    not to avail himself of any of them.

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  • GM52246

    To follow up on JRB’s excellent comment, this is–to put it politely–an extraordinarily confused open letter. Let’s take this one at a time:

    “West Side Story is a take off of Romeo and Juliet,(1) Little Shop of Horrors was preceded by a film version by the same name…

    I wonder if the president got a cut [of Shepherd Fairey's poster]? (2)

    1–Romeo and Juliet, in 1957 (when West Side Story was written), was and still is in the public domain, as is anything by Shakespeare, as is any American play before written 1930 and any European play before 1901 or so. That means *those* plays can have concepts & alterations to the director’s heart’s content. 3–The President is a public figure and thus does not get compensation for his work. 3–Charlie Kaufman was working for a studio which had purchased explicit permission to adapt Orlean’s book; Susan Orlean, as a journalist, is permitted to write about people in the news as long as they are true, also the studio would have had to purchase John Laroche’s “life rights.” In the vast majority of cases listed by , people either paid money to get explicit permission to use the material, or were dealing with a play by an author long dead.

    This is nonsense. As Jason correctly notes, Olivero wants the profit from the “Little Shop of Horrors” title without respecting the perfectly reasonable requirements the play comes with (and somehow seems to think it’s appropriate to steal from the writers of an entirely different musical without getting *their* permission?)

    One of the actors who worked on the Little Shop production provides more context in the comments here: http://bittergertrude.com/2014/01/26/directing-creative-freedom-and-vandalism/

    This isn’t some sort of big, existential copyright question. This is justification for blatant, illegal thievery & violations dressed up in a deliberate string of confusion.

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