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
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.
Nick A. Olivero, Director