Every time you report on this, it makes the reps for the originators of the content look more rational, while making the people putting on that'swhatshesaid even less rational.

Because it really makes it seem like one side is just trying to duck under both the law, and basic respect for original work, while the other side is protecting the rights of content creators.

Did anyone working for this play even think of asking for permission, or did they just assume their play was revolutionary enough that it could just steal material without repercussion? I have not seen it reported that they had, so did they? And if not, why not?

On another hand, this cuts directly to the heart of 'monolithic copyright' versus 'remix culture', and that ongoing debate.That'swhatshesaid is not (A) the entirety of any of those plays, nor (B) entirely made of any piece of one of those plays. It's a remix, a cut-up, done as a parody/commentary.

Take Jamaican reggae/dub music... someone comes up with a new beat pattern, do they Copyright the fuck out of it and prevent others from using their new beat? No, they don't, anyone can use anyone else's piece of music to make a new song.
This is the same as the 'mashup', two or more songs merged by the DJ into a new, greater whole. Does anyone come after Bootie (mashup night & DJs) and sue the living wages out of them? No.

That's what's going on here, small chunks off different "songs" have been cut-up, Burroughs-style, and remixed into an entirely new song, with new rhythm, new melody, and new meaning. Sure, there are recognizable pieces, but the whole is brand new.

Further, is there any other way to make the same point being made by this performance? Very probably not, especially w/o being boring and pedantic. So this may be the only effective way to 'say' what's being said. Do we not, as humans, have a basic right to remix parts of our culture and create new meaning? Is that not what is going on here?

I think Samuel French and DPS are going to find that their actions are blowing this up far more than it would have had they not C&D'd. Now this tiny performance, for a 50-seat theater, has national attention. The Streisand Effect indeed.

For what it's worth, I side with Pike and Meaker.

Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code

Chapter 11

Subject Matter and Scope of Copyright

§ 107 . Limitations on exclusive rights: Fair Use

"Notwithstanding the provisions of sections 106 and 106A, 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

@2

For what it's worth, by far the best most thoughtful comment so far.

@1, please meet @2 and @3. 'Rational' is a curious word to use in this context.

Even the C&D letter itself is unintentionally silencing women with the misspelled THAT'SWHATHESAID.

@2 - Well put.

I studied fair use in college, concentrating on the band Negativland. Thatswhatshesaid definitely falls under the heading of fair use.

I am glad that the CD letters are being sent: Perhaps this case will make it far enough to overturn our outdated and byzantine laws on copyright.

Personally, anything that gets Samuel French's panties in a bunch is alright in my book.

Thing about fair use is that we have criteria to be considered in judging whether or not something is fair use, but no bright line rules. So it's ALWAYS "Weeeellllll maybe it's fair use, maybe it's not; it'll take an Expensive Lawsuit to decide."

And what starving artist is like, 'Yep, let's go have an expensive lawsuit over this.' So you get a chilling effect which is absolute BS.

@10:

Yeah, there's an under-represented playwright, for sure...

@2, thanks for posting that

@9 mostly agree, also much is squeezed from a bluff of an expensive lawsuit that no one except the attorneys want.

This is really interesting if also disappointing to watch evolve, and I really hope it's performed again so I can go see it. I think it's important to keep in mind the incentives and risks involved in writing threatening legal letters: unfortunately it costs very little to write them and the consequences for erroneously doing so are much less (excepting unforeseen notoriety) than failing to and being perceived as letting down clients. It's also noteworthy that the attorney refused to make a statement about fair use, let alone asserted what specific damages could be sought; I wouldn't take a threat seriously without such an argument. But sadly and understandably a tiny theatre is intimidated by the perceived risk.

Is there a legal defense fund/org that could bring parity to the conflict?

(I meant @3 thanks for posting for our reference. But @2 not bad. Sorry I'm new here.)

"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"

You make it like the show defied the Cease & Desist letter. They did not defy the letter. They complied and you know it.

@5: One wonders how many years #2 and #3 have litigated or studied copyright law, or how many years they have sat on the bench judging copyright cases, however.

Because it seems to me that the legal experts who are advising this situation have told the producers of the play to comply with the C&D letters, as they have done. So maybe the people who study the law and practice it know more about the law than randos on the internet?

Radical thinking I know, but we live in radical times.

But I am still wondering why no one at the play bothered asking for permission. Seems like an oversight that is coming back to bite them in the ass.

Right now, I'm more concerned with what happens when we run out of pictures of Erin Pike.

Once again, the [sic] is a sad commentary not only on silencing women's voices (even unintentionally), but that these C&D critics can't be bothered to proofread their own threatening letters.

@16: We may have reached Peak Pike.

@2 and 5 how did that work out for Vanilla Ice and the Verve? Use whatever you like but ask you need to ask the owner/creator and will likely have to pay for it.
"is there any other way to make the same point being made by this performance?"
Uhh, yes, its called write/paint/sculpt/create something original.

@20 - OK, one more time for those who haven't seen the piece or paid any attention to the conversation so far, but are still certain they know how it should have been handled:

That'swhatshesaid is a critique of the representation of women in a *specific data set* -- the top ten most-produced plays of the 2014-2015 season, according to American Theatre magazine, i.e. the ten most commercially successful plays in America. Quoting those plays is the only way to unambiguously critique themes, actions, and character descriptions *in those plays.*

@15 - The only legal experts "advising" on the situation so far were publishers' attorneys who fired off pre-emptive C&Ds without ever having read the script. The producers of That'swhatshesaid now have representation from an Intellectual Property attorney, Jeffrey Nelson of Miller Nash Graham & Dunn, the chair of the Washington Lawyers for the Arts. Nelson was interviewed by American Theatre magazine and said he read the script and states unequivocally, “Our position is that this work does not require permission from any of the playwrights whose content was used because it does qualify as fair use."

So maybe the people who study the law and practice it know more about the law than randos on the internet, such as yourself? Somehow I think you're not going to take your own advice, though, but are going to insist on having the last word over an IP lawyer because you fancy yourself to have MUCH clearer insight about a play you haven't read and a field you don't practice.

@21 said what I was going to say, very well.