Tuesday* evening Peter Hagan, president of Dramatist Play Service Inc., another titan in the theatrical publishing industry, sent the creators of That'swhatshesaid a cease and desist letter regarding five of DPS's properties referenced in the play. They are: Other Desert Cities by Jon Robin Baitz, Vanya and Sonia and Masha and Spike by Christopher Durang, Venus in Fur by David Ives, Tribes by Nina Raine, and Outside Mullingar by John Patrick Shanley. These plays were included in American Theatre's list of the "Top Ten Most-Produced Plays of the 2014—2015 Season," and were used by playwright Courtney Meaker as source material to create the script for That'swhatshesaid.
If this post is the first time you're hearing about That'swhatshesaid and the theater publishing world's response to it, then read up about how good the play is, how publishing giant Samuel French tried to shut it down two hours before curtain, how the show went on despite those threats, and how a conversation about gender parity in U.S. theater became a copyright controversy that is still also a conversation about gender parity in U.S. theater. (You'll have to pick up a physical copy of the Stranger to read about that part.)
If you're already caught up, then, here, in part, is the new C&D—now with more threats! (Emphasis mine.)
The text in the plays cited above was written by, and is owned by, the aforementioned playwrights. No permission was sought for the use of the work of these writers—in or out of context—in THAT’SWHATHESAID [sic]. As is stated in the introduction to this piece: “Everything that is said and every action spoken over voiceover … is taken directly” from the plays. Regardless of whether Erin Pike and Courtney Meaker “claim no ownership of the material” (as they also state in the introduction), the fact remains that the material was presented without the permission of any of the authors who do own that material. And that, as far as I am concerned, is theft. To be quite clear, what the “conceiver” and “writer” have compiled here is direct use of material not created by them, and they have done so without permission from the authors or from the representatives of those authors.
...We must direct Ms. Pike and Ms. Meaker to immediately cease and desist from any use of the material used in THAT’SWHATHESAID [sic] by the authors named above.
I called Peter Hagan this morning for comment. Hagan told me that some of the agents of the playwrights involved and some of the playwrights themselves sent links to people at DPS, alerting him about That'swhatshesaid's run in a 50-seat theater at the back of Gay City.
Like Bruce Lazarus at Samuel French, Hagan said that he was doing his job: "Whenever material from a play we publish and represent is used without permission, regardless of the context of the material used, we will always say, 'No one asked for permission to do this, you can't do it.'" He went on: "When permission is requested, we will always take that request to the author or the author's representatives and turn it over to them. In this case, no permission was asked for any of the material that were used."
Did he think it was fair use? "Fair use can be a fairly gray area. What one person calls fair use might not be considered fair use to another person, particularly to the person whose material is being used," he said. "What we would do in this particular situation is turn it back to the author. Once that has happened, it's the author's decision to take it to litigation."
He just wanted to make sure I knew: "90 percent of the time when we go to someone who has done something like [Pike, Meaker, and director HATLO] did, they'll say, 'Oh my god, we had no idea that we needed permission for this. Can we get permission?' In which case we'll go to the author or usually the author's representative and say these people want to do this can they do it? Sometimes they do sometimes they don't."
When asked if he saw any irony in trying to silence a play about women being silenced, he said, "The cease and desist letter makes no judgement about the artistic value of the piece."
When asked if he thought it was weird that Christopher Durang never received a cease and desist letter for "For Whom the Southern Belle Tolls," a parody of Tennessee Williams's play The Glass Menagerie, (which you can find on YouTube here), which borrows several lines from Williams's play in addition to nearly using the full title of Hemingway's For Whom the Bell Tolls, which, of course, is itself a line lifted from a John Donne poem, he said, "We publish both of those plays. I don't want to make a comment in terms of what is satire or parody. Before speaking to that specifically, I'd want to look at the lines in question."
I have a call out to the legal representatives for That'swhatshesaid, and I'll update this post when I hear back.
*This post originally read that Hagan sent the C&D on Wednesday evening. Not true. It was Tuesday evening.