Exit Stage, Enter Streaming: Copyright of the Theatrical Stage Design Elements in a Changing Theater Industry
| Publication year | 2021 |
Exit stage, Enter Streaming: Copyright of the Theatrical Stage Design Elements in a Changing Theater Industry
Mark Bailey
University of Georgia School of Law
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EXIT STAGE, ENTER STREAMING: COPYRIGHT OF THE THEATRICAL STAGE DESIGN ELEMENTS IN A CHANGING THEATRE INDUSTRY
Mark L. Bailey*
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I. INTRODUCTION ......................................................................................................367
A. History has its eyes on Streaming Hamilton.....................367
B. No Pictures, Please.........................................................................369
C. Theatre Designers need Copyright Protection.............370
II. Why Now? A Change in the Industry......................................................371
III. Background: Theatrical Design and Copyright Law...............375
A. Theatrical Design..........................................................................375
B. Copyright Law..................................................................................376
C. Applying Copyright Law to Theatrical Design...............377
1. The Finished Product....................................................................378
2. Authorship and Ownership.........................................................381
a. Authorship...............................................................................381
b. ownership ...............................................................................383
3. Current Precedent..........................................................................385
IV. Analysis..............................................................................................................388
A. Insufficient Protection with Increased Exposure........388
1. Multiple Productions.....................................................................388
2. Flexible Use.....................................................................................390
B. Increased Protection by Contract........................................390
1. Protection by Contract..................................................................390
2. Protection to the Designer, Not the Producer.........................392
3. Updating Standard Bargaining Agreements..............................393
V. Conclusion..................................................................................................395
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A. HISTORY HAS ITS EYES ON1 STREAMING HAMILTON
Over July Fourth weekend in 2020, people had the chance to see the musical Hamilton for the first time without paying its historically high ticket prices.2 Millions of Americans were "not throwing away [their] shot"3 to catch a recording of the hit musical on Disney+.4 Since the show first opened on Broadway in 2015,5 people have had to travel to New York City, Chicago, or hope to catch a recent touring production to see one of the most popular musicals in Broadway history. However, thanks to a $75 million licensing deal,6 Disney brought the American classic to an estimated 2.7 million households in ten days7 all for the low price of a streaming membership.8
Hamilton's online debut brought the show to a wider audience in ten days than the Broadway production has reached in almost 2,000 performances over five years.9 In fact, Hamilton brought in such a large audience that Disney+
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memberships increased dramatically,10 making Hamilton the most streamed content across all platforms in the month of July.11
If, five years from now, copies of the Hamilton recording appear on other streaming services without Disney's permission, the service would undoubtedly violate copyright law.12 Sophisticated parties like Disney are able and willing to defend any threat to their intellectual property rights.13 Likewise, Lin Manuel-Miranda and his producers are no stranger to copyright disputes,14 and there is no question that they have a copyrightable interest in the musical.15
However, if five years from now, theatre sets start showing up on stages around the country that look remarkably like David Korins's iconic Hamilton set,16 would he be able to bring an open-shut copyright infringement claim? Korins cut holes in the Tony Award nominated set design so that cameras could be hidden on stage to make the filming of the live stage version possible.17
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Unbeknownst to Korins at the time, that recording would become the Disney+ version of Hamilton that would bring his design directly into the homes of millions of people.18 In doing so, he gave audiences a closer look at his set than most would ever get in in a traditional theatre experience.19
The question is, if agreeing to help give those audiences a closer look makes Korins' work easier to copy, does copyright law protect his design? Professional practice suggests that stage designers, the artists that create the scenery, props, costumes, lighting, projections and other elements that make up the world of a play, do not think their work will be protected if it is widely distributed. Instead, these theatre designers have relied on professional custom that offers little protection in the digital era.
B. NO PICTURES, PLEASE
Most audience members who have attended a play or musical know not to take pictures of the stage before, during, or after the performance.20 However, the temptation to take a picture of the scenery on stage or the iconic red curtain has proven to be too great to resist for many theatregoers. Those who were unaware this prohibition when they arrived will likely learn shortly after an usher quickly approaches them when the first accidental flash from their smartphone lights up the dim stage. while a simple photo of the stage before the show has even started seems harmless, theatre designers believe uncontrolled distribution of images of their designs could increase the likelihood of their design ideas being stolen.21 Unfortunate audience members have learned this the hard way, as most seasoned theatre ushers will ask audience members to delete any photos of the scenery, costumes, or even the red curtain from their phone before the usher will walk away.22 This tradition is based on the belief that theatre designers have a right to prevent people from copying their work, but they have little legal power to enforce it.23
This simple prohibition reveals that theatre designers depend on professional custom rather than formal legal practice to protect their intellectual property. However, even this slim protection is at risk as two of the three major owners of
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Broadway venues have decided to relax the prohibitions against taking pictures before and after a show to accommodate audience members' desire to document their trip to the theatre.24 To make matters worse, theatre design work is likely to be subject to much broader exposure with the possibility of streaming performances online becoming the industry norm due to the global pandemic.25 These changes in the industry show that theatrical designers must look to more traditional copyright enforcement to protect their work when it is streamed to a broader audience, leaving them with less control over subsequent distribution.
C. THEATRE DESIGNERS NEED COPYRIGHT PROTECTION
This Note analyzes the current state of the copyrightability of theatrical design work and the increased risk of professional plagiarism caused by the theatre industry's reliance on streaming due to the pandemic. This Note argues that the theatre industry must create a presumptive right to a copyrightable interest in theatrical design work that vests with the designer through contract in light of changes in the industry. Part II discusses how changes in the theatre industry since the pandemic began to necessitate a change in the industry's approach to intellectual property protection. Part III discusses what material typically falls under copyright protections and how theatre design does not fit cleanly under the confines of the Copyright Act. Part IV proposes that the theatre industry should attempt to use the growing judicial presumption that theatre design is copyrightable to protect theatrical designs with copyright law through contract rights via standard bargaining agreements. Lastly, this Note will conclude that extending full copyright protection to theatrical design will help create a flexible product to meet a changing market while preserving work opportunities for highly skilled professionals.
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"Currently, the only sight on American stages is a ghost light."26 Due to the COVID-19 pandemic, Broadway closed all of its theatres on March 12, 2020.27 By April, most of the major professional theatres in the country had followed Broadway's lead and closed their doors over safety concerns related to the pandemic.28 What started as a one-month closure slowly extended29 until The Broadway League30 announced in June 2020 that all theatres will remain closed into 2021.31 Theatres have remained open through natural disasters, national security concerns, and financial struggles, and yet COVID-19 has shut down the theatre industry longer than any other crisis in the last few decades.32
The shutdown of the entertainment industry has cost thousands of people their jobs and cost the economy millions of dollars.33 Arts and culture organizations reported a loss of an estimated $4.5 billion by late April 2020
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alone.34 Highly skilled professionals at the top of their fields suddenly found their industry simply closed with no idea when it would reopen. Adding to the uncertainty, some experts theorized that theatre venues would not be able to reopen for a year or more after the vaccination process begins.35
All of this paints a dark picture for the future of the theatre industry. However, despite unique challenges for creative professionals, the country is hungry for entertainment.36 Theatre companies have...
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