Getting Legal Advice From An Entertainment Industry Expert

We Didn't Start the Fire

We all have questions about legal issues that affect our industry. The fact is that as society and technology change, so do the laws that are established to protect our work and us, as individuals. I always get excited (and admittedly, a little obsessed) when I come across a new source of information that particularly addresses my interests. Discovering the Entertainment Law Update Podcast (http://www.entertainmentlawupdate.com/) and Gordon Firemark’s website (http://firemark.com/) have certainly fueled that obsession over the past couple weeks.

Gordon P. Firemark

Gordon P. Firemark, Esq. is a fascinating entertainment attorney, author and teacher. He has a background in television, film and theatre and is CEO of his own production company, Fierce Theatricals. He is actively involved with the Los Angeles Stage Alliance and The Academy for New Musical Theatre where he serves on the Boards of Governors. Firemark is a frequent lecturer, as well as stage producer and investor. In his free time, he shares his knowledge and expertise through his expert blog and entertainment law podcast.

I’ve found special connection to Mr. Firemark because his career was greatly influenced as a young student, by an educator that encouraged him to channel his energy through involvement in technical theatre. As the auditorium manager and technical director in a public high school, I’ve had the honor and privilege of witnessing what happens to students that find their calling, discovering a whole new world where their creativity and abilities are unleashed. I strongly believe that it was this gift, given to Firemark at a young age that inspires him to share his wealth of knowledge with the masses.

Firemark’s Entertainment Law Update Podcast (ELUP), which he co-hosts with Texas attorney, Tamera H. Bennett, is an excellent resource of information regarding entertainment law. Together they discuss and review current disputes and court decisions that have profound effects on the ever-changing issues in the entertainment industry. The particular focus of the podcast deals with copyright and intellectual property law.

What I find most stimulating about these discussions, is the way Bennett and Firemark break down the issues and court decisions in plain English, discussing their current and future effects on the industry. One particular area of entertainment law that they discuss frequently, is the right of publicity. Briefly, it is defined as “the right to control the commercial use of one’s identity” (http://rightofpublicity.com). It is a rapidly changing area of law that is complicated by differing state laws and court rulings on the matter. As is the case with intellectual property law, the right of publicity is rapidly evolving due to the way we entertain and communicate through the many advancements in technology over the past twenty years. The discussions on the ELUP help decipher court decisions and appeals of cases, as the courts try to uniformly protect and uphold the law as it applies in the varies jurisdictions.

In the most recent ELUP episode (episode 19), there is a fascinating discussion about the case, Golan v. Holder, which will be heard by the Supreme Court in an upcoming session. The main issue involves reinstatement of copyrights for foreign works that had become part of the public domain. Some of the works included are those by Picasso, Stravinsky and films and books by Alfred Hitchcock and Virginia Woolfe. The show notes for the episode provide links to articles and court documents regarding this and other cases discussed on the podcast.

I also highly recommend Gordon Firemark’s website, The Theatre Lawyer (http://firemark.com/pages/theatre-lawyer/). You’ll find excellent discussions and reviews of legal issues unique to the theatrical world as well as some pertinent question and answer discussions. These are excellent resources to visit, time and again, to stay current on legal issues that affect theatre and the entertainment industry as a whole.

Resources

Firemark, Gordon. (2010, August 25). Entertainment Law Update Podcast Episode 13. copyrights, trademarks, fair use and net profit suits. Retrieved April 8, 2011 from http://www.entertainmentlawupdate.com/

Firemark, Gordon. (2010, September 29). Entertainment Law Update Podcast Episode 14. Mockumentaries, Downloads, Licenses, and First Sales. Retrieved April 21, 2011 from http://www.entertainmentlawupdate.com/

Firemark, Gordon. (2011, April 8). Entertainment Law Update Podcast Episode 19. Boop Boop Be Doo! Retrieved April 21, 2011 from http://www.entertainmentlawupdate.com/

Website & Images: Entertainment Law Update Podcast. http://www.entertainmentlawupdate.com/

Website: The Theatre Lawyer. http://firemark.com/pages/theatre-lawyer/

Intellectual Property Rights: Stage Controversies

Everybody Has the Right

Most people are aware that if you want to produce or perform a theatrical play or musical you have to acquire a licensing agreement and pay royalties in order to get the rights. The work of the authors: the playwright (or book writer), the composer and the lyricist are the Intellectual Property owners of the work. Sometimes ownership is shared with producers or regional theatres if the work was subsidized while in development with the organization. In either case, no one has the right to use or perform the artists’ work without their permission.

Do productions happen without acquiring a license? Of course they do. If the person or organization is caught they could face hefty fines and devastating lawsuits. Who does it harm? The artists. The lost income from illegal productions could be the money that puts food on the artist’s table or funds their next masterpiece. In the end, it affects us all.

The Broadway production of Bombay Dreams. Photo: Jan Marcus.

In January 2011, a Pakistani production of A.R. Rachman’s musical Bombay Dreams was illegally staged without appropriate licensing from Andrew Lloyd Webber’s Really Useful Group (RUG). They were sent a cease and desist letter, accused of violating Intellectual Property law (Mahmood, 2011). When the production did not close immediately, accusations of plagiarism and copyright fraud were also introduced. Since this is an international issue, it is unclear how or if RUG will proceed with legal measures but it is evident that the negative press it is receiving will affect the reputation of the show’s director, Shah Sharahbeel, and Center Stage Productions that is illegally presenting the work (Mahmood).

Fela! on Broadway.

In another current case, Charles Moore, author of the biography on which the acclaimed musical Fela! was based, has filed a copyright infringement lawsuit against Fela Broadway, LLC. The lawsuit charges that whole sections of his book were used as part of the script without his permission or compensation (Otori, 2010). Moore’s case is strengthen by the fact he was the only authorized biographer of Fela Anikulopo-Kuti and a fictional character he created, Afa Ojo, as narrator in his book also appears in the stage version (Otori).  The future of the suit is uncertain. Kuti’s son, Femi, has asked Moore to settle the suit so future productions can go on and educate audiences about Africa’s political climate (Otori).

A third case recently causing a stir is less clear and of questionable merit. Actor and playwright, Mark Sam Rosenthal, received a cease-and-desist letter from The University of the South, representing their ownership of Tennessee Williams’,  A Streetcar Named Desire.  In a New York Times article, Patrick Healy reveals the steps the university was taking in what they are considering, “infringement on the university’s valuable intellectual property rights” (Healy, 2009).

Mark Sam Rosenthal as Blanche. Photo: Stephen Gelb.

Rosenthal’s one-man show, Blanche Survives Katrina in a FEMA Trailer Named Desire, performed off-Broadway, models his lead character after Williams’, Blanche DuBois character. In the article, Healy represented the University’s complaint from the legal brief: “It seems at best to be a comedic political commentary directed at the events surrounding the Katrina catastrophe in New Orleans,” wrote Christopher J. Marino, a lawyer representing the university. “As you may know, in order for a parodist to take advantage of a fair-use defense, a parodist’s criticism must target the copyrighted work at least in part” (Healy).

The extent of Intellectual Property rights goes beyond the written word. For example, take the case of Urinetown, which sued producers in Akron, Ohio and Chicago for plagiarizing the staging from the artists that created the Broadway production. Both productions were accused of copying all the creative elements staged in the  Broadway production. In a 2008 Variety article, Gordon Cox reveals that both productions settled, agreeing to pay the Broadway creative team, including director, choreographer, lighting, sound, costume and set designers, fees for use of their original work. 

Intellectual Property rights should and must be protected. It relies heavily on the ability and willingness of the owners and the legal system to protect their work. In the cases of Bombay Dreams and Fela!, there are clear violations of the law. Unfortunately for Bombay Dreams, copyright infringement on foreign soil is often difficult, if not impossible to prosecute. It depends heavily on local laws and and how willing a country is to cooperate with foreign copyright laws. Moore has a strong case regarding Fela!, if he proceeds with his lawsuit, he will likely win at least some compensation and credit for his work.

The charges against Rosenthal seem almost absurd. The character of Blanche DuBois is a cultural, if not literary icon. Rosenthal's use of the character in no way affects the integrity of the original work. If anything, he is merely playing on a popular and widely used stereotype.

Urinetown           Photo: Joan Marcus

The most important and interesting case involves the Urinetown lawsuit. For years, directors and creative team members have tried to establish copyright protection for their work with little support of the courts. In this situation, with two major unions behind the suit, the defendants had enough pressure against them to force them to do the right thing (Cox). Both productions blatantly reproduced the complete original work without credit or compensation.  If this is a realistic concern of the creative team, they need to negotiate the use of there work as part of the shows theatrical licensing. The duplication of an original creative team's work can be seen in nearly every theater across the country amateur and professional alike. It seems that either the law needs to be better stated and consistently enforced, or artists need to negotiate the coverage of their work in future productions as part of their initial contracts with the original production.

Sources

Cox, Gordon. (2008, July 2). Broadway’s ‘Urinetown’ lawsuit settled: Ohio production accused of plagiarizing. Variety. Retrieved April 3, 2011 from http://www.pryorcashman.com/attachments/282/Variety+Urinetown+Settlement.pdf.

Healy, Patrick. (2009, February 4). One Man’s Blanche Is a University’s Infringement. The New York Times. Retrieved April 2, 2011 from http://www.nytimes.com/2009/02/05/theater/05ceas.html?_r=1&ref=theater.

 

Mahmood, Rafay. (2011, February 4). Bombay Dreams: The nightmare. The Express Tribune. Retrieved April 2, 2011 from http://tribune.com.pk/story/114185/bombay-dreams-the-nightmare/.

Otori, Hauwa. (2010, November 16). Fela! Under Fire: Author of Biography Files Copyright Infringement Suit Against Show’s Production Company. Intellectual Property Brief.net. American University Washington College of Law. Retrieved April 3, 2011 from http://www.ipbrief.net/2010/11/16/fela-under-fire-author-of-biography-files-copyright-infringement-suit-against-show%E2%80%99s-production-company/.