Samuel French Tries to Shut Down That'swhatshesaid an Hour Before Curtain

Comments

1
If anyone can devise a cunning last-minute plan, it's E-Pi. Wish I could be there to see her put the tail on that weasel.
2
How about she dismantle the Matriarchy and do something original?
3
Taking a quick look (and yes, I am an IP lawyer, admitted to practice in Washington state), there are some unanswered questions that would need to be addressed before advising. (And a few key points that will be detailed below.)


1) Does the writer of the "Original Work" (in this case Samuel French) hold a valid copyright?
2) Did the person who wrote C&D have the authority to stop the work? (Fun fact - anyone can send one. It helps if you have the actual right to do so, or if you've been authorized by the author to do so.)
3) How much of the Original Work ("OW") is in the new play? Does it quote the "heart" of the OW, such that no one would need to go see a production of the OW after seeing this one?
4) Is the commercial draw for this play tied to the use of this particular OW? (Is all the marketing "Come see Samuel French's work - Distilled to the essence"?
5) Do the lines taken from Bad Jews serve to criticize or comment on the OW? Is there some sort of transformative aspect to their use? (Just from this article, it seems like the answer to that is yes.)
6) With all of those questions, keep in mind that fair use is an affirmative defense. It is applied by the judge after things proceed to trial. Determinations can thus be incredibly expensive for small artists and performers, so it might be worthwhile to reach out to a legal rights organization that promotes fair and transformative uses such as the EFF or even the "Washington Lawyers for the Arts".
6) The recent ruling in Lenz v. Universal Music Corp suggests that the burden of proof may be shifting to the original rights holders in proving that fair use was NOT in play before they sent their C&D.
7) TL; dr version - people can always ignore C&D letters at their own risk. This seems overreaching, and unlikely to be decided in favor of Samuel French, but she may want to seek official legal representation tomorrow.

Good luck.
4
It's not about the patriarchy, it's about the money. If the producer had paid the royalties for all the plays that are excerpted in the performance, the Samuel French company would be pleased as punch.

I'm not saying that's right - I think plays should be able to be excerpted without having to pay royalties. What I'm saying is that companies like Samuel French are absolutely ruthless when it comes to their properties. No one is exempt. And I have no doubt that they have people who monitor the theater scene - and particularly the arts coverage in alt weeklies - in regional arts centers like Seattle

I hope Ms. Pike can find a resolution. Theatrical lawyers are a breed of their own.
5
If they no permission to show the play, shut the fucker down.
6
Maybe Ms. Pike could publish her play online so we can all judge for ourselves the degree of violation.

7
#5 The playwright Courtney Meaker has given Erin Pike permission to show this play. No worries!
8
@3:

Samuel French is a publishing concern and in this case represents the copyright holder. As such, they have authority to issue a C&D and have done so on numerous occasions; in fact, they're rather notorious in the industry for their somewhat heavy-handed issuance of shutdown orders.

As far as how much of the OW appears, it's my understanding there are brief passages of dialog, as well as stage directions, from numerous works, and the total running time is only about an hour, so it is unlikely the amount is substantial for any given piece; however, whether there is enough to constitute infringement would presumably be a matter of interpretation. But given these considerations, it is rather unlikely the particular work cited in the C&D comprises a large portion or even the bulk of the performance, and I don't think it could be considered a "commercial draw" in the sense you mean; it is simply one component of a much larger whole. That said, whatever use there is would most definitely be construed as a critique or commentary on the OW, which I gather is rather the entire point of the piece.
9
So what happened?
10
I wish that the use of "dismantling the patriarchy" in this article had been ironic. Otherwise, ye gods, Rich Smith. Catalina's right; it's the money; I doubt if the publisher was worrying about the patriarchy.
11
This question is perhaps obvious and/or tangential, but (while we are waiting for an update on what happened)...

What is the difference between covering another musician's song at a concert (unrecorded), and performing another playwright's play? Do bands pay each time they play some famous song? (maybe there's no difference, and songs do this, I've just never though to ask)
12
(I meant "bands do this", not songs)
13
@11, usually a venue owner is paying royalty fees that allow bands to cover songs.
14
The struggle to be a writer is incredibly difficult. To reduce it to "it's about the money" or the patriarchy shows an imbecilic lack of understanding about what it takes to produce this work and to find a home for it, afterwards.

If you contacted the writers and asked their permission, then you'd have a case - and what sounds like a good idea for a piece of work. If you didn't, then it's just narcissism and theft and you deserve no consideration.
15
@14, there is no magical legal protection from from criticism. Nobody will go to That'swhatshesaid expecting to see Bad Jew nor would they be troubled by similarities should they be unfortunate enough to see both. Those are the only scenarios that copyright law covers. Making fun of terrible writing via a brief quote acted to play up its ridiculousness? Totally legal, and totally what the author wishes he could use his money to shut down.
16
Hard to imagine a more textbook example of the purpose of the fair use doctrine. Zero chance that Samuel French would eventually prevail in a suit.

I hope the performance went forward, and that counsel was retained to call Samuel French's bluff.
17
Nice with the misleading title on Twitter:

"What happens when you try to put on a feminist play? You get a cease and desist order."

Yeah, I'm sure the order was sent because it's a feminist play. Do you have any proof that the fact that this is a feminist play (whatever the hell that is) is the reason the cease and desist order was sent? It appears the reason the C&D order was sent is entirely due to Samuel French aggressively defending (correctly or incorrectly) copyright.

But don't let the facts get in the way of a good "oppressed feminist play story."
19
This article is shit, making a copyright infringement issue into a supposedly feminist one. The article absolutely does not make its case here. If you want to proceed with no legal ramifications, tony charge for tickets. Refund the money. Call it "public art" or a "feminist literary exercise".
20
SO WHAT HAPPENED?! Hoping they went forward with the production. Seems well within fair-use territory.
21
"the play... seeks to dismantle the patriarchy by deconstructing its language and making good art from it"

Well if it's parody than it's protected speech.
23
Tough call on fair use here. I'd say that it is, since they incorporate a number of different works and excerpt the dialogue and stage directions in a manner calculated to critique the original work and contemporary playwrighting generally. But I understand Samuel French's position - letting this slide might open the door for jerks who just don't want to pay royalties to rewrite a few lines and gender-swap the roles in Glass Menagerie and calling it "critique." It's a fine line between theft and legitimate criticism/parody, and like pornography, it's hard to set bright-line rules.
24
@16, what makes you think that SF is bluffing?
25
@9 and @20 - The show went on, without the specifically cited material from the cease & desist.
26
We're all very curious ...! A full-length story would be much appreciated.
27
As a work of parody and response, this should fall under Fair Use. French is doing what most copyright owners do, and demanding more than they are actually due because they know they have more lawyer power than the artist. Total bullshit bullying move.
28
@24, because what @27 said.

This is textbook fair use. Samuel French is bluffing because if the case ever wound its way far enough through the legal system to be reviewed on the merits, it would lose outright.

It's understandable if the playwright and performer caved (per @25) to avoid further trouble, but it is a shame and a minor miscarriage of justice nevertheless.
29
There seem to be a number of lawyers on Slog, and when presented with an article with legal ramifications, they post in verbiage very unlike their usual posts. Except for Sgt. Doom who posts in the usual psychosis-tinged manner.
31
If the play's author doesn't credit the source of the material in such a way that the audience can figure out which lines are from which play, then it is indeed copyright infringement.
32
@31 Fair use and copyright are hardly that simple
34
@18, 22, and 33 fully express what kind of a day this is.
35
@28, by what #25 said. It seems like the Director of the play doesn't believe that SF is bluffing like you seem to think.
36
@35:

Or rather, it's a matter of the artists not having the financial resources to pursue the matter in court, even if they think they might prevail.
37
@36, if there was a "Fair Use" claim to be made by the Director. There would be any number of Lawyers, Free Speech groups, etc who would help out.

No one except the Director knows why the decision was made. Maybe a lawyer was consulted, maybe not. There are enough of them around.

38
When you take someone by force, without permission, we call it "rape." When you take their work without permission, it's a form of rape. How in the world are you all justifying rape? I'm stunned that stealing works of art is condoned by anyone. How is this possibly justified? Have you no respect for the writers whose work was stolen? May I come into your home and steal your work and justify it by using words like "patriarchy?" Not one inch of this makes any sense. Thank you, Samuel French, for standing up for the rights of playwrights to not have their work raped. Shame on those of you who said they "had it coming." Shame.
39
@38 Meaker didn't "steal" a work of art. In an interesting and unusual way, using stage direction and lines from various plays, she critiqued a perspective. Rape? Please.
40
@38 obvious satire is obvious.
41
"There's no patriarchy here, it's just the usual power structure!"
42
First off: Accusing Samuel French of attacking this because it's feminist is pretty absurd. SF gives out the rights to tons of feminist pieces...a search on their website for "Feminist" returns 140 titles. This is about copyright law and money.

Also, as someone who doesn't know copyright law well, I have a question. I understand that Fair Use makes it so that copyrighted material can be used for satire and such. But this is an ENTIRE PLAY made up of dialogue written by other people. Even if it's edited together creatively, I can still see where that could be problematic from a legal perspective.

For the record, I think this sounds fascinating, and I hope that the show gets to go on with its full intended script. But I also recognize why a company that owns the rights to the plays that the dialogue is from would want royalties for something like this.
44
As a playwright, who (barely) scrapes out a living writing original work for the American theater, it's always a struggle to survive. Sam French and other such businesses protect and defend the rights to our words. They hold theaters, producing houses, and other artists accountable when they attempt to use that work for free. In doing so, they provide us with the (very meager) compensation that playwrights receive for years of work creating a new play. If it is not illegal for this 'artist' to poach other writers work without proper compensation then, at the very least, it is unprincipled - and an affront to the theatrical community she works in. And, to brand it as some form of anti-feminist move on the part of Sam French is dishonest, distasteful, propagandizing.
45
@44:

Since I presume you didn't actually see the work in question, I don't think you are in any position to judge another artist's principles. And rather than being an "affront" to her community, HER community wholeheartedly supports her endeavor. WE know HER, we know her socio-political viewpoints, her motivation and intent for creating and performing the work, and her ability to present it in an engaging, thought-provoking, and dialogue-creating manner, none of which is in the least bit compromised by Mr. Lazarus' ham-fisted correspondence. If anything, based on what's been presented by The Stranger, in Social Media, and in personal conversations I've had just myself with other members of the community in the past couple of days, this has sparked even MORE dialog and discussion among theatre artists about the concepts of "fair use" as it pertains to Copyright law, the difficulties of defending it, and the right of artists to critique and criticize the works of other artists, all of which is healthy and good for the community as a whole.

That said, I haven't heard any rational person who understands the situation blaming Samuel French per se; they are simply doing what the artists they represent pay them to do. But, Mr. Lazarus in his position also knows full well that his directive placed Ms. Pike, Ms. Meaker, and Gay City in an untenable position: if they chose to claim their Fair Use rights under federal Copyright law and present the piece with the material intact, they would risk a lawsuit, which in turn would take years - not to mention tens of thousands of dollars in legal fees (notwithstanding the suggestions from the peanut gallery who apparently presume there are scores of lawyers out there ready to line up and offer pro bono services) - to resolve. These people simply don't have that kind of money, Mr. Lazarus', despite his facile assertion to the contrary, knows this, and so he can hold the threat of litigation over their heads like the proverbial Sword of Damocles with the full understanding that his adversaries will never be in any position to go through the onerous and expensive process required to assert their rights.
46
As to what comte wrote. I find it interesting that she speaks of this as dialogue-creating work, when other writers were who created her dialogue. To take on such a dynamic character as was written in Bad Jews as a source of the "penis's winning" shows that these types of situations is a no-win situation here with these types of women. I am a female. I am a writer. I support good work. I support people who would rather create the characters they want to see, it seems like Pike and Meaker probably don't have the facility to create such characters, and would rather sit around and masturbate to their "feminism" over others' hard work. To reduce Bad Jews to this is absurd to me. A play that makes such a strong beautiful statement on contemporary Judaism, with a very hard, complex character. I haven't seen the other plays she mentions, but if this is the play she's using, she's grasping. And really with those stage directions? Come on. Should all strong female characters be written by women? Should all strong female characters resemble that of Queens with Integrity? Should all female characters' effing STAGE DIRECTIONS be caught up in scrutiny like this? They are just running around in circles making zero changes for what they want to see in the community. Again, masturbating, and recycling issues with plays that are non-issues, continuing to spark the flame of blase repetition, and not actual any change. A bad SNL sketch. I'm so sick and tired of hearing about women playwright's work not making it, or work being made, when I see great work by women happening all over the place. Great work by women who do not waste time doing what these people doing, because they would rather be writing, great, interesting, original work. The productions being done, are being done, because they are good, which is why plays should be produced in the first place, not because they come with a vagina attached or need to reach some quota.