If you haven't been following this story: On Friday, theatrical publishing giant Samuel French sent Gay City Arts a cease and desist order for presenting That'swhatshesaid, which weaves together lines of the female characters' dialogue from popular American plays. In that letter, Samuel French claims that the play potentially infringes on the rights of Joshua Harmon because it uses lines from Harmon's play, Bad Jews. In response to that letter, the That'swhatshesaid crew redacted the lines from Bad Jews and went ahead with the show.
This morning, the director of licensing and compliance at Samuel French sent Erin Pike and playwright Courtney Meaker another cease and desist order. The letter reads, in part:
It has come to our attention THAT’SWHATSHESAID may have also included copyrighted and trademarked elements from our client, Matthew Lopez’ [sic], THE WHIPPING MAN. Based upon this information we must again demand that you cease and desist from use and inclusion of any and all material from these authors’ works.
The weird thing about this cease and desist letter is that there are no women characters in Lopez's play, The Whipping Man, so there are no lines from The Whipping Man in That'swhatshesaid. This absence of women characters is acknowledged instead by the sound of 72 pages being flipped.
Does that qualify as commentary on The Whipping Man? If it's commentary about The Whipping Man, that could bolster a legal defense that says the creators of That'swhatshesaid would be protected under fair use.
I'm obviously not a legal expert, but I described the situation to Betsy Rosenblatt, a professor at Whittier Law School and the Director of Whittier's Center for Intellectual Property Law. Is Samuel French legally justified in sending a cease and desist letter regarding material that is absent from the show? She said, "It's hard to imagine any way that a cease and desist for The Whipping Man makes copyright sense if the only representation of it in the play is the sound of 72 pages being flipped through."
Samuel French did not immediately respond to a request for comment. I'll update this post if I hear back from them.