Yesterday afternoon, Jeff Nelson, the attorney representing That'swhatshesaid, sent his official legal response to representatives at Samuel French and Dramatist Play Services. Both theatrical publishing titans sent cease-and-desist letters, citing copyright infringement (and, in DPS's case, "theft") to That'swhatshesaid's creators—performer Erin Pike, playwright Courtney Meaker, and director HATLO—demanding they stop performing the play.
In response, Nelson's letter asks the publishers to cease and desist sending their cease and desist orders. In addition to making the argument that the fair use doctrine would protect That'swhatshesaid if anyone took the creators to court, Nelson also offers a little theater criticism of his own.
After a cordial introduction, Nelson begins the letter by admitting that the show's creators never asked for permission (emphasis mine):
You’re correct that my clients created their work based on preexisting works, some of which we understand from you are owned or authored by the playwrights you represent. You’re also correct that no permission was sought, nor granted, for the use my clients made of these works. But we understand that you had not received the script for, nor viewed a performance of, my clients’ work before making your demands. Now that you’ve had the opportunity to review the script, you likely understand that no permission was sought because no permission is necessary.
I'll only pause here to say that Peter Hagan, president of DPS, told me yesterday morning that he had read the script, though in his C&D he only quoted from its title page and intro. Bruce Lazarus, the rep for Samuel French, told me that he had not read the script before sending a C&D.
Nelson goes on (emphasis not mine):
Fair use expressly protects use of copyrighted materials without permission of the copyright owner in certain circumstances. To determine whether an unauthorized use qualifies as fair use requires review of 4 factors, not all of which carry the same weight.
He then lists the criteria for fair use, and begins with a brief discussion of the second factor: Is the work they're using under copyright?
We readily acknowledge that the nature of the works authored or owned by the playwrights you represent are creative and entitled to copyright protection. As a brief aside, That’swhatshesaid was not created by my clients with ill-will or evil intent toward other artists, including those you represent. As you know, these works were selected based on their inclusion within the top 10 (11, due to a tie) most-produced plays from the years 2014-15. Had any of these plays enjoyed slightly less popularity, they would not have been included in this project.
Though this fact that they're using copyrighted material weighs against the argument for fair use, Nelson cites previous cases where this criteria “assumes less importance in the overall fair use analysis relative to the other three factors.” Leaving that issue aside, Nelson goes on to argue for the transformative nature of the work, which speaks to the first and arguably most important aspect of the fair use criteria (emphasis mine):
As is clear from a reading of the script, a viewing of the performance, and from the public statements from my clients about That’swhatshesaid, it was created with the express purpose of drawing attention to the underrepresentation of women in American theater at every level, but especially as playwrights and actors. Their script takes only a small portion (lines spoken by women) of 10 preexisting scripts, and uses only a yet smaller portion of those lines, reorganizes them until the originals are almost unrecognizable, and then delivers a complete 60-minute performance by one woman, Erin Pike.
The net result is an entirely different artistic experience for the audience, leaving them with a fresh perspective on the roles created for women in popular American theater. Among the purposes of this important work is to effect change in the way women are viewed by the audience and industry. By using the most-produced plays of recent years as the raw material for this new work, That’swhatshesaid demonstrates the underdeveloped roles for women that are too often rewarded by the system. This is precisely the transformative use that fair use protects. Requiring permission from the industry to comment upon it through its most-produced works would thwart progress and public knowledge, in direct contrast to the purpose of copyright law.
Nelson briefly addresses the third criterion for fair use, which is the "amount and substantiality of the portion of the copyrighted work," saying, "As noted, only small portions of 10 existing scripts were used to create this work."
How small were these portions? Meaker, the playwright, recently sent me a breakdown of the exact number of words used from each of the plays she sourced to write the script, including stage directions:
- Bad Jews by Joshua Harmon: 894
- 4000 Miles by Amy Herzog: 626
- Around the World in 80 Days by Jules Verne: 619
- Outside Mullinger by John Patrick Shanley: 561
- Vania Sonia Masha and Spike by Christopher Durang: 555
- Venus in Fur by David Ives: 459
- Tribes by Nina Raine: 439
- Peter and the Starcatcher, adapted by Dave Barry and Ridley Pearson: 385
- Other Desert Cities by Jon Robin Baitz: 356
- Into the Woods by Stephen Sondheim: 70
- The Whipping Man by Matthew Lopez: 0
Okay, back to the letter. After talking about how little of the plays Pike & Co. uses, Nelson covers the fourth criterion for fair use and argues that That'swhatshesaid in no way replaces the preexisting works precisely because the play is so transformative. He adds: "After viewing my clients’ work, the audience may well be more inclined to see those works, maybe to examine them with their new-found perspective on the roles available to women in those performances."
Nelson suggests that Samuel French and DPS might consider supporting rather than attacking the play, given the message it delivers, and asks them to consider rescinding their demands against That'swhatshesaid.
Then the copyright lawyer insists that we stop talking about copyright law and start talking about gender inequality in American theater:
Regardless of your response, That’swhatshesaid is well within the bounds of fair use. My clients would welcome your support, but do not seek permission to perform their work. Continued threats against its performance serve no purpose except to further underappreciate the value of women in theater—the very wrong this work seeks to correct.
Meaker wanted to stress that as a playwright she understands the knee-jerk reactions coming from the other playwrights, their agents, and the publishers. "I understand the terrifying thought that [their] play—what [they] fought to make happen—[was] being performed without [their] consent, without [their] approval," she said, adding: "It makes sense that they thought that was happening and freaked. But that's not what's happening. Our play contains no major plot points from any of the other texts and we are in no way trying to restage any one of those productions."
As for next steps? Meaker says she, Pike, and HATLO are looking at offers and will likely tour the piece around the country and abroad.