Give Starving Artists a Piece of the Ip Pie: Making Room at the Table for Performers' Rights
| Publication year | 2023 |
Give Starving Artists a Piece of the IP Pie: Making Room at the Table for Performers' Rights
Meagan A. Sharp
University of Georgia School of Law, jwt74222@uga.edu
Give Starving Artists a Piece of the IP Pie: Making Room at the Table for Performers' Rights
Cover Page Footnote
J.D. Candidate, 2024, University of Georgia School of Law. Thank you to Professor David E. Shipley for his mentorship, Professor Weyman T. Johnson for addressing questions regarding labor law, and David Lerner and Will Dameron for addressing questions regarding performers' rights. Thanks also to my parents and sister, who supported me throughout the writing process.
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GIVE STARVING ARTISTS A PIECE OF THE IP PIE: MAKING ROOM AT THE TABLE FOR PERFORMERS' RIGHTS
Meagan A. Sharp*
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I. Introduction...............................................................................................394
II. Background: The History of Compensation for Performers' Contributions...........................................................................................396
A. "What I Did For Love": Royalties Take Center Stage. 396
B. "Blow us All Away": Hamilton Cast's Landmark Win and Subsequent Reverberations......................................................398
C. "All the World's a Stage": The Rise of Collaborative Works and Immersive Theatre.................................................400
III. Analysis..........................................................................................................404
A. Copyright Applicability..............................................................404
1. Performer Contributions in Traditional Theatre Productions 404
2. Developmental Sessions...............................................................410
3. Immersive Theatre........................................................................416
B. Alternative Avenues to Protection.....................................420
1. Increased Labor Unionization.....................................................420
2. Contract Literacy for Performers................................................423
V. Conclusion....................................................................................................425
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The concept of the tortured artist whose madness fosters creative genius emerged in Plato's writings as early as the 4th century B.C.E.1 Famed Post-Impressionist painter Vincent van Gogh was intrigued, and perhaps inspired, by troubled medieval artist Hugo van der Goes, whose mental deterioration produced masterpieces.2 In the late 18th and early-19th century Romantic period, the "starving artist" who traded material and physical well-being for the ability to focus on creative endeavors became a commonplace figure in works of art and literature.3 Over time, society began to equate pain and poverty with artistry.4 In the theatre industry, producers used this perception to their advantage, encouraging performers to pay their dues by making financial sacrifices and agreeing to low-paying readings or unpaid internships.5 While Broadway shows are a huge source of revenue in the United States, only a select few players stand to gain a significant amount of money from the success of these productions.6 This group seldom includes the actors themselves.7
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Copyright is a way for artists to receive remuneration for original, creative expression.8 A copyright owner's exclusive rights under the Copyright Act of 1976 include the ability to sell, license, and prepare derivative works from the original art.9 These permissions allow artists to enjoy the fruits of their labor long after its completion.10 Actors, however, fail to establish copyright authorship in their performances alone.11
While joint copyright authorship12 may not typically extend to performers, there remain situations where performers contribute more than their interpretations of lines and lyrics: (1) during the creative process of developmental sessions and (2) during the production of immersive theatre. Should copyright protect performers in these instances? And, if not, how else could the law protect artists' valuable intellectual property contributions?
This Note argues that, as the theatrical landscape evolves, more and more claims of quasi-authorship rights will arise from stage performers working within highly collaborative or improvisational settings. While these artists, in the context of a larger production, may not fit squarely under the Copyright Act of 1976 as authors, continuing to take a large amount of their intellectual property for incorporation in the final product could prove to be a widely used, exploitative practice.
This Note delves into the history of compensation for performers' intellectual property contributions in Section II. Section III explores how copyright protection has been applied to performances within traditional artistic productions, as well as how it might apply to performer contributions within new theatrical forms. ultimately, this Note argues that labor law and contract law
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should help protect these performers' intellectual property contributions where copyright coverage may not extend.
A. "What I Did For Love":13 Royalties Take Center Stage.
The fight by a group of dancers to obtain royalties from the musical A Chorus Line sparked the modern conversation on performers' rights to their intellectual contributions.14 The 1974 show ironically tells the stories of a small group of dancers who, grounded in their love for the stage, persevere in the theatre industry despite rejection, injury, and financial struggles.15 The basis for the show's characters and storyline came from nineteen of Broadway's best dancers. These dancers were invited to a Manhattan rehearsal studio to share their life stories and "brainstorm ideas for [an] unspecified Dancer Project."16 Creator Michael Bennett recorded the exchanges on tape, later copying verbatim much of the speech and dialogue in his script.17
Before Bennett began synthesizing this material to create the musical, his lawyer warned, "[y]ou can't have all these people sitting around telling you their life stories for a show. You're going to have twenty authors—and twenty lawsuits. You've got to get them to sign a release."18 At Bennett's request, these dancers waived their right to their life stories for one dollar each.19
After the show succeeded, Bennett arranged for a portion of the weekly box office gross revenues and a portion of the income from subsidiary rights to be
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shared with the dancers.20 At the height of the original production's popularity, these dancers each earned around ten thousand dollars per year—a healthy sum but pale in comparison to the millions Bennett accrued.21
When the show returned to Broadway in 2006, original cast members expected also to receive royalties from this new staging, only to discover that the previous agreement only covered the original production.22 Dejected, one dancer—whose life story became the source material for the character Sheila—remarked, "[t]here never would have been 'A Chorus Line' without [Bennett], but there never would have been 'A Chorus Line' without us, either."23
As royalty rights became a topic of conversation in the theatre world, the concept gained traction in experimental off-Broadway runs known as workshops. Under an Equity Workshop Agreement, actors tasked with developing a new show received a group share in the show's gross box-office receipts, though earning considerably less than they would if working under a Broadway contract.24 This share was typically one percent plus, if the show proved to be a success, a portion of the show's subsidiary rights and royalties totaling around one and a half percent of net receipts.25
Over time, unfortunately, performers lost their grip on cuts of future profits. Producers started to favor lab sessions over workshops, using this format seventy-five times between 2016 and 2019.26 Rather than having a stake in future
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profits, performers were paid a flat, weekly fee.27 From 2008 to 2019, performers' weekly lab salaries remained frozen.28
B. "Blow us All Away":29 Hamilton Cast's Landmark Win and Subsequent Reverberations.
The scale tipped in favor of performers' rights when a handful of original Broadway cast members of the musical Hamilton secured a historic deal.30 After Hamilton opened on Broadway to rave reviews and record profits, twenty-two cast members penned a letter to lead producer Jeffrey Seller.31 The letter explained, "we did not write the show, we didn't choreograph, direct, design, or produce it We do, however, take great pride and comfort in the knowledge that our contribution was just as vital as the aforementioned, in the creation of [the show]."32 These artists asked that the entire original off-Broadway company enjoy the benefits of royalty participation.33 After attempts to buy these artists out, Seller finally acquiesced and retroactively granted the cast one percent of net Broadway profits to split, plus a smaller share from most future productions.34
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Some Broadway shows, including Frozen and Mean Girls, followed suit, with producers voluntarily agreeing to a shared future profits agreement.35 These productions, however, represented a small fraction of the entire fleet of shows on the Great White Way. The Broadway League,36 the national trade association representing theatre owners and producers, remained unwilling to include such profit sharing as part of a new collective bargaining contract.37
After reaching an impasse,38 Equity called the "Not a Lab Rat" strike, the first strike from the union in decades.38 In February 2019, the organizations struck a deal, "replac[ing] and effectively eliminat[ing] Equity's former workshop agreement and lab agreement."39 Under this new Development...
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