In February of last year, theater-makers Erin Pike, Courtney Meaker, and HATLO performed That'swhatshesaid, a feminist play that got the whole theater world talking. The script is a dramatic collage of female dialogue culled from the most-produced plays of 2014. Meaker artfully arranged the language, HATLO shaped the piece, and Pike made it sing. Citing potential copyright infringement, major drama publishers threatened legal action to shut down the show, but the show went on. For sparking a national conversation about gender equity and copyright law, The Stranger nominated the crew for a 2016 Stranger Genius Award.
In a statement published on New Year's Eve, the That'swhatshesaid crew released their rights to this compelling, vital piece of theater. Now anyone can produce it, gratis. But there's a catch.
As the play's creators explain, they can't release the rights to the 10 scripts within their script:
There are others who have rights in the scripts that were used as the basis for creating our script. Some of those individuals may claim to have rights in That’swhatshesaid. Any or all of them may object to future performances of the play. We have no control over those individuals or any rights that they may have or claim to have. Anyone that chooses to perform, display, or otherwise use That’swhatshesaid or our script, does so at their own risk, subject to any rights that any others may have. You’re solely and entirely responsible for any claims that may result.
So let's say you want to produce That'swhatshesaid. Any of the 10 playwrights whose work appears in script can sue you. Obviously you'd have to secure legal counsel and pay court fees, etc., which can be cost prohibitive for small companies. But the decision to use the copyright system to silence you for continuing a conversation about the representations of women onstage is ultimately up to the playwrights themselves, and right now they don't seem to be too litigious. Since last February, none of them have tried to pursue claims against the That'swhatshesaid creators.
But if you do produce the play and you are sued, will you lose? I'm not a lawyer, but in February, Jeff Nelson, the attorney representing That'swhatshesaid, argued in a letter addressed to Samuel French and Dramatist Play Services that the work is protected by the fair use doctrine. His argument is very convincing. Here's the main part of it:
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.
What happens if you produce the show, get sued, and then win the case? Then you'd set a legal precedent that may protect artists who want to create powerful and substantive work that critiques theater on its own terms.
Curious readers and enterprising theater-makers can access the script on their website. Break a leg.