News of the recent Urinetown controversy spread quickly through the theatre community when five members of the creative team — the director, the choreographer, and the set, lighting, and costume designers — of the original Broadway show charged that licensed productions in Chicago and Akron, Ohio, copied their work without permission. While the local productions had a license to reproduce the script and music, the team claimed that the license did not include the rights to the original creative decisions.

Putting all of the drama surrounding the controversy aside, it brings to light the ugly truth that writers and composers harvest a majority of the royalties when Broadway shows are licensed to other producers, often to the dismay of the original directors, designers, and choreographers.

Why is this? Does copyright law play a role? First, a quick overview of copyright law relating to the theatre is in order. Generally, copyright law contains three necessary elements for a work of authorship to receive copyright protection: the work must be original, the work must be fixed in a tangible medium, and the work must fall within one of the enumerated categories afforded protection.

The first requirement of originality mandates that the work must be independently created by the author and must posses some degree of creativity. Therefore, ideas, procedures, processes, and historical facts are not copyrightable. However, a creative expression of an idea or fact may be protected.

The second requirement of fixation in a tangible medium is generally accomplished when the work is embodied in a copy or phonorecord. A “copy” may be virtually any material objects in which a work is fixed by any method now known or later developed. For example, in the case of choreography, the work may be precisely described written text or in any dance-notation system such as Labanotation, Sutton Movement Shorthand, or Benesh Notation, among other methods of fixation.

The third and final requirement is that the work must fall within one of the statutory categories afforded protection. The categories include literary works, musical works (including any accompanying words), dramatic works (including any accompanying music), pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audio/visual works, sound recordings, and architectural works.

It is easy to appreciate that a play's script may be categorized as a dramatic work and that a musical theatre score — and accompanying words — is a musical work. Additionally, set designs have long been afforded copyright protection. Unfortunately, there is little precedent regarding lighting and other visual designers pushing the envelope in regard to copyright protection. However, there may be a larger issue that is holding set and lighting designers back: ownership in the work product.

A key issue regarding ownership is the categorization of an individual as an independent contractor or an employee of the producer. Starting with the playwrights, they are generally considered independent contractors and therefore enjoy exclusive copyright ownership of their scripted works. The courts agree, because the work is written prior to contracting with a producer.

Conversely, stage directors have long been considered employees of the producer in large part because of the control that the producer has over the director, necessitating a finding of employment rather than independent contractor status. Similarly, the work of the set and lighting designers is usually subject to the producer's approval.

Thus, in light of the fictitious employer created by the courts, the producer is deemed the author of any works created by artists who are deemed employees of the producer, with all copyright interests vesting in the producer. However, presumptions of this sort are often overruled when a written agreement is in place. Therefore, designers and agents must pay particular attention to copyright ownership when negotiating contracts.

Law is no more static than theatre or art. Today's established artistic genres often began with the work of scorned and ostracized artists. Is it possible that we are on the verge of an expansion of copyright law that greatly expands the rights of directors and designers? The original Urinetown artists and others seem to think so, and there is little theoretical reason barring such an expansion. The copyright basics of artistic creation, fixation, and ownership can all be met. Copyrights are routinely registered in such diverse areas of “art” as computer programs, architectural plans, and databases. Can anyone make the argument that staging, lighting, and theatrical directions are less creative or less important to the artists who create them?

The largest uncertainty is how the legislatures and courts will apply copyright principles to theatrical design. But guidance can be taken from the history of copyright to enable directors and designers to best position their work for protection, including:

  • Originality: This one should be easy, as should creativity. If the documentation is good, then an artist should have no problems showing that he or she was the originator of the design or staging. Given the very minor level of creativity that the laws requires in copyright, theatrical designs should more than exceed the threshold required for creativity.

  • Ownership: Without a viable claim to ownership, courts will never reach the finer points of copyright infringement. At a minimum, creative designers of all stripes must fully understand any written contracts they have with producers. At best, the contract would spell out that the designer is an independent contractor and that the copyright of all the designer's copyrightable work shall remain with the designer.

  • Fixation: There is, quite frankly, little to guide us as to how to best fix these types of artistic work in a tangible form, and this may be the biggest stumbling block to recognition of copyright in this area. Obviously, a script or a song is easy to fix in a tangible medium, with nothing more than a pen and paper. The key may lie in the fixation of choreography mentioned earlier. Written stage directions or a detailed lighting plot and script may be best, or perhaps even a video recording of the original creation. Until the courts clarify this, the only suggestion can be that the more fixed documentation created, the better. Remember the real purpose behind the fixation requirement is so that a jury will have something concrete to compare between the artistic creations to judge whether there is an infringing degree of copying between the works. Anything that can help a jury in this regard advances the possibility for copyright protection.

  • Registration: The law provides such draconian restrictions on damage recovery for unregistered works that it is often impractical to bring a lawsuit over an unregistered work, even if the copying has been outrageous. Artists will need to formalize their ownership claims and fixation of their works into federal registrations to put the power of the law behind their copyright claims. It may well be that the Library of Congress will refuse copyright registrations in this area, and it may take an aggressive artist-and-attorney team to overcome such reluctance and pave the way for others.

Until designers push for federal copyright registration and until a United States court, at the insistence of an imaginative artist and attorney team, enforces that registration, we will have little more guidance in this area. Given, though, that the question is already on the horizon, it makes simple sense for artists to do everything possible to prepare for this potential development in the law.

David Dawsey is an intellectual property attorney and partner at the law firm of Gallagher & Dawsey Co. LPA in Columbus, OH. He can be reached at ddawsey@invention-protection.com, or visit www.Invention-Protection.com.