When Back Stage Copy Chief Erik Haagensen, who also happens to be a book writer and lyricist, decided he wanted to turn Peter S. Beagle's novel "A Fine and Private Place" into a musical theatre piece, he did something rather gutsy. Instead of contacting the publisher, which is the usual first step in obtaining the rights to a novel, he "took the bull by the horns," he recalls. "Since I frankly thought the publisher would ignore me, I picked up the telephone, checked the phone listings for Watsonville, Calif., and called Peter Beagle directly. He was cordial. He said the novel was under option but it would be up in a year. He also said he was not especially impressed with other musical versions of the novel that had been attempted.
"A year later, I called Beagle again," Haagensen continues. "This time he said he wanted to see some previous work of mine, which I then sent him. He liked it, but felt he had to meet me before making up his mind. I flew out to California and we spent some time together over the course of a weekend. I paid one dollar for the rights, which essentially means he gave them to me for free. That was because he saw I was a struggling young writer and didn't have any money to speak of."
To fast forward and telescope events: The musical (composed by Richard Isen) progressed; Beagle liked what he saw, and renewed Haagensen's option on the novel. To date, the musical, "A Fine and Private Place," has been performed professionally at Connecticut's Eugene O'Neill Music Theater Conference, Goodspeed Musicals' Norma Terris Theatre in Chester, Conn., and the American Stage Company in Teaneck, N.J. It was then published and licensed by Samuel French, Inc., has had multiple stock and amateur productions, and a CD recording of the score (featuring the original Goodspeed cast) is set for release in mid-June.
Haagensen's experience with obtaining—and keeping—the rights to another artist's work was reasonably smooth sailing. Other writers are not as fortunate in receiving and maintaining rights to material that they wish to reinvent for another genre.
Producers also face potential roadblocks in obtaining rights to a play they may wish to produce, although their challenges are usually a little less cumbersome. Still, the bottom line is that they have to get the author's approval to produce the play; further, they need his approval for any revisions they plan to make. Indeed, they sign a contract stipulating that they will produce the work "as written."
Consider the recent copyright brouhaha surrounding a production of Sam Shepard's "True West," as reported in Back Stage (March 12 and March 19).
No one disputes the fact that the Off-Broadway producers had received the rights to produce the play. The issue was the changes they made without consulting Shepard or his representatives, specifically the casting of two actresses to play the two male leads. The producers felt that gender switching in no way violated the play. Shepard's agent, Judy Boals, and Samuel French, the publishing house that is also the play's licensing agent, vehemently disagreed. More important, the latter argued that the production flew in the face of the contract, which, as noted, spells out that the play is to be produced "as written." Interestingly, Shepard did not weigh in on this controversy, although in 1997 he closed a San Francisco production of "True West" because it featured a performer baring her breast, a nonexistent stage direction in his text.
An equally impassioned donnybrook took place earlier this theatre season in connection with the Broadway revival of "Fiddler on the Roof." In this instance, the estate of original "Fiddler" choreographer Jerome Robbins was not open to the revisions that Kathleen Marshall, the new choreographer, planned to make. Marshall stepped down. This was an unusual—perhaps unprecedented—scenario in that Robbins, a choreographer, shared in the authors' copyright for "Fiddler."
These colorful episodes aside, obtaining the rights to a work is not all that complicated. But a little background is useful. With that in mind, Back Stage decided to take a look at the issue of obtaining rights: When does one need to do it? How does one go about getting them? And what exactly does "as written" mean? What kind of maneuvering is permissible and under what circumstances?
Nuts and Bolts
It should be noted that some properties are in the public domain, meaning those properties are no longer protected by copyright laws; in some instances, they never were—e.g., the works of Shakespeare. In short, Shakespearean plays or those written by the ancient Greeks, as examples, can be appropriated by anyone, thus allowing for directors' "conceptual" interpretations without fear of flak from the author or the author's estate. Literary purists may squawk, but no one has any legal recourse.
According to Merriam Webster's Collegiate Dictionary, copyright means "the exclusive legal right to reproduce, publish, and sell the matter and form (as of a literary, musical, or artistic work)." In almost all instances, the author holds the copyright to his work; there are, admittedly, some exceptions—e.g., staff journalists may find that the magazines or newspapers they work for own the copyright to the articles they have written. Therefore the journalists cannot sell their articles elsewhere, but the publishers can.
"Copyright laws were first introduced in the 1800s," says Craig Pospisil, director of nonprofessional rights at Dramatists Play Service, a publisher and licensing agency. "Over the years, the copyright laws have become more codified, not unlike owning a patent for an invention, although in this instance [the invention] is an intellectual property. Until 1998, copyright protection lasted the length of an author's life plus 30 years. In 1998 it was extended to match European copyright laws. Now, copyrights are protected for 70 years after the author's death."
He adds, "Most plays written prior to 1923 are now in the public domain. Interestingly, early plays by Eugene O'Neill are in the public domain, while later ones are not."
Same with novels; some are in the public domain, others are not. Haagensen, who had to contact Beagle to obtain the rights to musicalize "A Fine and Private Place," had no such obligation with Edith Wharton's novel "Summer." The latter is in the public domain and Haagensen and composer Paul Schwartz needed no permission to transform it into a musical theatre piece.
An important caveat: It is usually very difficult for an unknown writer to obtain the rights to a literary work—or drama—for the purposes of turning it into a musical. (Remember, Haagensen had credits on his resume when he approached Beagle.) Obtaining the rights to a novel or play for a film adaptation may be even more problematic for a fledgling screenwriter without a track record. If a film company has already optioned the work, it is highly unlikely that it will assign the project to an unknown, or even read the script later if some enthusiastic writer tackles the project for the hell of it. If the property has not been optioned, the novelist/playwright may want to adapt the work himself or, once again, assign it to a writer with film credits under his belt.
A very important caveat: Do not write the screenplay or musical based on an existing work without obtaining permission first. More than likely it'll be a disappointing waste of time.
Clearly, there is less risk to mounting an existing play with or without a track record as a producer, especially if the production in question is nonprofessional. After all, the publishers of plays, who usually license those plays as well, make the bulk of their money from licensing plays for production—professional and nonprofessional. The latter include high schools and community theatres.
The best-known dramatic publishers and licensers are Samuel French, Dramatists Play Service, Broadway Play Publishing, Dramatic Publishing in Chicago, and the online publishing website Playscripts.com. Major musicals are licensed by Samuel French, Tams-Witmark Music Library, Music Theatre International, and the Rodgers and Hammerstein Theatre Library, which, despite its name, licenses the works of many authors in addition to those of Rodgers and Hammerstein.
There are variations within the contract for professional and nonprofessional productions—cost and percentage of royalties, for instance, depend on the production's status, size of theatre, and length of run. The amount of time it takes to get permission depends on who is behind the production. For amateur productions, permission may be granted within 10 days.
The larger and more professional the production, the more there is at stake for the playwright, if he is alive, or for his literary estate if he isn't. A high-profile production garners attention and, understandably, the writer or his estate wants the work most favorably represented. Sometimes he/it will want a say in who is directing the piece, as well as the casting of it. Obtaining the rights for a large professional production of a play or musical may take three to four months, assuming they are forthcoming at all.
Roadblocks
There are any number of reasons why permission to do a work may not be granted, not least the fact that another—higher-profile—production of the same play is in the area or will be.
Consider the experience of the Double Helix Theatre Company in New York when it attempted to obtain the rights to "The Glass Menagerie." Jason Woodruff, the company's managing director, recalls being turned down by Dramatists Play Service because "The Glass Menagerie" is slated for a Broadway run with Jessica Lange playing Amanda. And the licensers do not want to create competition, however unlikely that might be.
Double Helix is a relatively new company with young, largely unseasoned actors. As a result, Woodruff concedes he has faced wrinkles in his chase to obtain rights—and not simply those attached to legendary plays. He also admits a certain naïveté in his approach. But he has learned.
"We were very interested in doing Marlane Meyer's 'Etta Jenks,' " he recalls. "We did a number of informal readings, got several actors interested in the project, and went so far as to raise money for it. In fact, we put a deposit down on a theatre for the production. Then we decided to get the rights to the play. It never occurred to us that it would be a problem. But it was. We couldn't get the rights."
The first major roadblock was the fact that the play had never been published by a licensing organization. It was part of an anthology and published by a company that did not have licensing rights, which meant Woodruff had to track down Meyer or, more precisely, her representatives, who indicated she was not interested in having Double Helix produce her play. Woodruff never found out why exactly, although he surmised it was because Double Helix was a small company of unknowns. And from the writer's point of view, Woodruff acknowledges, it is risky to have a new work premiered by a company without a solid reputation. A weak production may ruin a play's future chances. In any case, the company lost time and money in its aborted efforts.
"We ended up doing 'Three Sisters,' " Woodruff notes. "That wasn't our plan, but we had to produce something and at least 'Three Sisters' was in the public domain."
Still, the specter of "Etta Jenks" lingered and when, some time later, Woodruff met Meyer, he once again asked her for the rights to the play. This time, Meyer granted permission. The one stipulation—which Woodruff discovered when he later contacted her agent to hammer out the agreement—was that no reviewers be allowed to come.
"For us that was absurd," says Woodruff. "We are a young company and need reviewers. So this time, we turned the project down."
It should be noted that there might be virtues in producing plays that have never been produced or published (assuming you can get the rights).
Suzanne Barabas, artistic director of New Jersey Rep, based in Long Branch, N.J., says that almost all of the plays the company produces have never been published or produced and that from her viewpoint, there are major benefits.
"If a play has been published and a licensing agent is involved, there is almost no room for negotiation. But if a play has never been produced—and probably not published, either—the company can negotiate directly with the playwright to everyone's advantage. If, for example, the play goes on to be produced elsewhere, the first theatre that produced the play can negotiate to get a percentage of the playwright's future royalties. And, of course, there's the prestige of being the first to produce a play if it goes on to become a success."
Adds Woodruff: "When we deal with an unpublished playwright, we have a volunteer from Lawyers for the Arts write out a letter of agreement for us [that spells out fees and royalties]."
A New Vision
The biggest pitfall to obtaining rights to a play—even unpublished, but especially published—is a producer's plan not to produce the work "as written."
So what does that mean? According to those Back Stage interviewed, it means changing anything from dialogue and songs—adding or deleting—to setting the work in a different era from the one the playwright indicated, to gender reversal in casting. Back Stage was told repeatedly that "gender reversal" is unacceptable if the characters' genders are switched or if the performers are not gender matched with the characters they are playing. It's not okay to have women playing male characters as men, or men playing female characters as women. The argument that the character's gender has not been changed, only the gender of the performer playing him or her, does not hold any water for the licensers. They find it specious, unless the playwright gives the new casting his stamp of approval.
Interestingly, however, most licensers—and by extension the writers they represent—are strong champions of colorblind casting, the notable exception being characters who are race or ethnicity specific and must be for the purposes of the story—e.g., "A Raisin in the Sun," "Show Boat," or "Big River."
Nevertheless, loopholes are available for almost all of the above contingencies, if, for example, the producing organization is not professional—like a high school—and has compelling moral or logistical reasons to make the changes. It is routine for high schools and some community theatres to want—and be granted permission—to remove dialogue, lyrics, or complete songs if they are deemed too explicitly sexual for the audience. On occasion, new dialogue or lyrics will be substituted.
Michael McDonough, manager of non-Equity licensing at Music Theatre International, says, "We usually give high schools some latitude and so do the authors [or their estates]. We will allow the removal of smoking, drinking, or slang from the productions. We understand that the teacher would not want his student to go home and say, 'Mom, I was cast as a prostitute,' or sing in 'Les Miz': 'Seven days at sea can make you hungry for a poke.' 'Poke' can be changed to 'smoke' or 'joke.' A word like 'slut' can become 'tramp,' a 'bitch' can become a 'witch,' a 'bastard' can become a 'braggart.'
"And we will also attempt to accommodate the realities of casting," he continues. "There have been occasions when schools or community theatres will tell us that they don't have enough male actors to cast the two fathers in 'The Fantasticks.' So with creators Harvey Schmidt and Tom Jones' permission, we allow those productions to cast the two fathers as two mothers. But we do not permit a mother and father. That would add another element that the authors don't want. They want the parents to be of the same sex."
Bert Fink, a spokesperson for the Rodgers and Hammerstein Organization, is also committed to accommodating high schools and community groups whenever possible. "We know, for example, that the dance sequences in 'Carousel' are very difficult," he says. "And there are schools and smaller companies that want to cut them. Frankly, we would rather see them attempted than cut. So we have created a video that Agnes de Mille helped us make before her death showing less experienced dancers how to approach the choreography."
There are areas, however, where the Rodgers and Hammerstein Organization will not compromise. "Some communities are offended, for religious reasons, by Billy Bigelow's suicide in 'Carousel,' " Fink observes. "We will not allow them to cut or change that. That suicide is central to the story. And if it makes them that uncomfortable, they should do another musical."
McDonough takes the same position on the subject of resetting a work. He recalls a proposal in connection with "A Funny Thing Happened on the Way to the Forum":
"We had one request from a community theatre to change Rome, Italy to Rome, Georgia," he recalls. "We said absolutely not and suggested they write their own musical set in Rome, Georgia."
Stresses Charles Van Nostrand, president of Samuel French: "It's really not that hard to obtain rights to a work if it is respected and the author's intentions are adhered to. We get on average 25 to 30 requests a week to make changes in scripts. And these requests come from the lowest rungs on the professional ladder to the highest. And some of the most unexpected revisions will be accepted if the producers simply ask for permission first."
There are occasions, however, when producers mount productions without obtaining the rights at all or make revisions without the author or licenser's permission. A repeated refrain: It's rare for anyone to get away with anything today. Word spreads quickly, in part thanks to the Internet.
So what happens if a producer is discovered to have produced a work or made changes without having the rights to do so?
"Our responses can vary," says Pospisil of Dramatists Play Service. "It may be a slap on the wrist and 'please pay the bill' to suing them to issuing a cease-and-desist order. That happens rarely. Our responses largely depend on whether we feel the producers were making an innocent mistake—they really didn't know or understand the rules—or were truly trying to get away with something."
In one notable instance, reported in Back Stage's Regional Roundup (April 27, 2001), a production of "Side by Side by Sondheim" mounted at the Coconut Grove Playhouse in South Florida was ordered closed down thanks to numerous unauthorized script changes, including new songs that were not in the original revue along with appropriated (and unaccounted for) excerpts from Meryle Secrest's biography of Sondheim that were voiced between the songs. Apparently, friends of Stephen Sondheim attending a star-studded opening performance blew the whistle. Among the stars in attendance: longtime Sondheim collaborator director Harold Prince, Joy Abbott (widow of director George Abbott), and Lauren Bacall. The upshot: the Playhouse issued an official apology and offered to pay Sondheim's agents' legal fees. The run was canceled.
Despite the occasional imbroglio that hits the trade papers in connection with a copyright transgression (or alleged transgression), there is a greater respect for intellectual property today than ever before, Back Stage was told by several sources.
"At least there is an awareness of the concept of intellectual property and the issues that surround it," says Pospisil. "The publicity surrounding the illegalities of downloading and selling music from the Internet has contributed to that awareness of the issues. That's good news for playwrights and musical theatre writers everywhere."
The following is a list of companies that grant performance licenses for plays and musicals. It should be noted that all copyrighted works require securing permission for public theatrical performance regardless of the size or union status (or lack thereof) of the producing entity. This includes community and amateur groups, churches, schools, and the like, and holds true even if no admission fee is charged. The licensing company is usually listed on the copyright page of a published script.
Aran Press
1036 S. Fifth St.
Louisville, KY 40203
aranpres@aye.net
(502) 561-1124
Baker's Plays
P.O. Box 699222
Quincy, MA 02269-9222
www.bakersplays.com
(617) 745-0805
Broadway Play Publishing
56 E. 81st St.
New York, NY 10028-0202
bppi@broadwayplaypubl.com
www.broadwayplaypubl.com
(212) 772-8334
Dramatists Play Service
440 Park Avenue S.
New York, NY 10019
postmaster@dramatists.com
www.dramatists.com
(212) 683-8960
Dramatic Publishing
P.O. Box 129
Woodstock, IL 60098-0129
www.dramaticpublishing.com
1-800-448-7469
Eldridge
P.O. Box 14367
Tallahassee, FL 32317
info@histage.com
www.histage.com
1-800-HI-STAGE
Heuer
301 E. Ave NW
Cedar Rapids, IA 52405
service@hitplays.com
www.hitplays.com
1-800-950-7529
I. E. Clark
P.O. Box 246
Schulenberg, TX 78956-0246
ieclark@cvtv.net
www.ieclark.com
(979) 743-3232
Lillenas Drama
P.O. Box 419527
Kansas City, MO 64141
www.lillenas.com/drama
(816) 931-1900
Music Theatre International
421 W. 54th St.
New York, NY 10019
licensing@mtishows.com
www.mtishows.com
(212) 541-4684
New Plays
P.O. Box 5074
Charlottesville, VA 22905
pat@newplaysforchildren.com
www.newplaysforchildren.com
(434) 979-2777
Pioneer Drama Service
P.O. Box 4267
Englewood, CO 80155-4267
orders@pioneerdrama.com
www.pioneerdrama.com
1-800-333-7262
Rodgers & Hammerstein Theatre Library
1065 Avenue of the Americas, Suite 2400
New York, NY 10018
news@rnh.com
www.rnh.com/theatre
(212) 541-6600
Samuel French
(New York office):
45 W 25th St., Dept. W
New York, NY 10010
www.samuelfrench.com
(212) 206-8990
(Los Angeles office):
7623 Sunset Blvd.
Hollywood, CA 90046
www.samuelfrench.com
(323) 876-0570
Tams-Witmark
560 Lexington Avenue
New York, NY 10022
www.tams-witmark.com
(212) 688-9191