Intellectual Property Insanity... Finally About Theatre!

I think you can guess where the heck I come down on this latest bit of froofrah:

The University of the South, which owns the intellectual property rights for Williams’s “Streetcar Named Desire,” has threatened legal action to stop performances of the one-man show “Blanche Survives Katrina in a FEMA Trailer Named Desire,” which is scheduled to run through March 15 at SoHo Playhouse.

The play, which won the Audience Choice Award at last year’s New York International Fringe Festival, is written and performed by Mark Sam Rosenthal, who is featured as a modern-day Blanche weathering Hurricane Katrina, the New Orleans Superdome and a subsequent job placement as a cashier at Popeye’s — not to mention a series of unflattering blond wigs.

Lawyers for the university, in Sewanee, Tenn., initially tried to quash the production in September, arguing in a letter to Mr. Rosenthal that his play and performances were “infringements on the university’s valuable intellectual property rights.”

There's a lot to say about this issue but there's also a lot to say about this article.  I really wish that Patrick Healy had focused his word count more on the intellectual property issues at stake here, as this case could actually make a good case study for educating readers of the Times about some of these issues. There's a lot of terms and ideas thrown around and not defined, like what the parody exception is and why it exists, what "fair use" means etc.  And I don't know what Antia Gates' review of the show in the Times (she didn't like it, i haven't seen it and don't have any connection to it) has to do with the IP issues at stake in the article.  Whether a show is good or not has nothing to do with the legal issues at stake here. 

Also there's a weird thing going on in this article where the University is saying "this doesn't qualify as a parody" but no one involved with Blanche is claiming it is a parody.

Also, I think Rosenthal's argument that he shouldn't be shut down because he's a starving artist demonstrates a pretty clear lack of understanding of the issues at stake here.  Good thing he has good lawyers! 

This is actually an interesting case vis-a-vis "fair use" doctrine.  Fair use doctrine usually applies to taking text from something. To whit: 

 the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   
2. the nature of the copyrighted work;
   
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   
4. the effect of the use upon the potential market for or value of the copyrighted work.   

I'm not sure any of this applies here, frankly, but I also think the law  surrounding IP is deeply fucked up. Rosenthal took a famous character and created something new using that character but also using our cultural conception of that character and the way that character exists in the popular consciousness. He's not performing Tennessee Williams' character "Blanche DuBois"exactly... he's performing the Blanche DuBois that lives in our collective unconscious.  And he's created something original out of it. That's not a legal argument, but to me its a philosophical argument that he should be allowed to proceed with the show. 

Rosenthal's lawyers are right that this use of IP law would infringe on creativity, but that ship has already sailed in this country. I'm interested to see how this plays out.

Comments

[Duncan]

I'm seeing it tomorrow night. I'm interested to see how the legal proceedings bear out, too.

[Brant]

If you haven't read REMIX by Lawrence Lessig, you should definitely add it to your library queue.

[Jonathan Clausen]

Bill Ivey does such a thorough job of addressing this point in his book "Arts, Inc." that I would highly recommend anyone interested in this issue take a look at it: http://www.amazon.com/Arts-Inc-Neglect-Destroyed-Cultural/dp/0520241126/ .

The problem is that that rulings and regulation over the last two decades have set precedence that, with decent legal representation, the U of S can probably successfully litigate this issue based on the naming of the character.

"God Sees Dog" is a another example of a play where everyone fully knows the characters from which it derived, but Royal changed the characters names to give him legal padding. I'm not saying that's necessarily right but, without significant changes to IP/copyright legislation, is likely to be the rule rather than the exception if an author wishes to create derivative art from a primary source.

[Ron]

It's also sad that the litigant in this case is a University claiming property rights for something it didn't create. Cynical. If Williams were still alive, or even if members of his family managed his estate, I might be more sympathetic, even while disagreeing.

I don't think they will prevail. Judges are often pretty good at the philosophical part, or at least can be. I recall a case sometime back regarding Andrew Lloyd Weber and plagurism of a melody. The judge ruled that both tunes in question were so innocuous and so like so many other common tunes in the public domain that the case was dismissed...

[Ken]

Ridiculous. "Blanche Survives Katrina..." in no way damages the value of Williams' brand. It's not like some theater will scrap pre-existing plans for a production of "Streetcar" and instead do "Blanche Survive Katrina...." Maybe some adventurous company might one day program both into a season, but for Williams' executors to raise a fuss about this as infringement of copyrighted material is nonsense.