Book review: Performing Copyright: Law, Theatre and Authorship

As a previous drama student herself (who'd have guessed it!), this Kat was delighted to review Performing Copyright: Law, Theatre and Authorship by Dr Luke McDonagh (Assistant Professor of Law at LSE Law School).

This is the first academic monograph that solely considers the relationship between UK copyright law and historical and contemporary theatre. It focuses on authorship of the copyright in stage plays as dramatic works, texts that can be performed from a script (rather than musical theatre, dance, or performers rights). The book addresses questions of whom is the author and first owner of a dramatic work? Who receives the credit and the licensing rights? In what circumstances can a director or actor be granted joint-authorship with the writer? What happens when a copyright infringement claim is made against the playwright? And who poses moral rights in the work?

The monograph is presented in six chapters. Chapter one, ‘Introduction to Copyright and Authorship on Stage’, sets out the rationale and theoretical approach of the research, highlighting that dramatic works are allographic, meaning that they attain their ideal expression in performance, whereas the printed text is, by contrast, often seen as secondary or not as authoritative as the performed text in action. McDonagh takes his primary inspiration for the theories of authorship and the work from Roland Barthes and Michel Foucault, to outline the multi-faceted, and even poly-vocal, nature of theatrical authorship. This chapter also describes the methodology for the qualitative empirical research that involved 20 interviews conducted during 2011-13 with participants from the theatre community including actors, playwrights, directors, and producers. 

Chapter two, ‘The Play’s The Thing…’ But What’s The Play? And Who Owns It?, explores what exactly is a play as copyright protects it and who owns it. McDonagh discusses the emergence of the author figure as the owner of a dramatic work by analysis of authorship and ownership of plays from the Elizabethan period up to the early twentieth century. The author argues that our presumption of the individual author in theatre must be questioned in light of the reality of collaboration, although he clarifies, “my intention here is not to remove the author-figure completely, merely to widen and deepen the understanding of authorship in the collective medium of theatre.” Nevertheless, he goes on to explain that collaboration has worked differently from era to era, with legal concepts and case law influencing theatre practices. The chapter maps out the relationship between the artistic practices of theatre and the legal institutional philosophy of copyright to explain how the modern law of copyright came to protect plays as works, demonstrating that: 
Legal procedures invent the tradition which they purport only to continue.

Chapter three, titled Copyright Law and Performing Authorship in Theatre – Exploring the Contrasting Roles of the Playwright, Director and Performers, then moves into the modern age, exploring the way that contemporary works of theatre are created and questions how the law should recognise the authors and owners of these works. In doing so, the chapter first considers the current law of the copyright work, originality, authorship and joint authorship of plays. The second part of this chapter explores theatre studies literature concerning the way works of drama are created, in particular, drawing insight from the 20 interviews conducted by the author with which he “aims to show that in contemporary theatre, collaboration is far from aberrant – it is, in fact, the norm.” This is because works are revised by collaboration via the workshop and rehearsal process, which can alter the play before it becomes the final text. In devised theatre, the final play as performed is constitutive of a highly collaborative process and therefore, McDonagh asks, who is the author and can copyright account for these processes and what reforms can better facilitate the creative process of theatre?

"Law too is a performative mode of practice"
Image: Riana Harvey

Chapter four turns to consider when copyright infringement occurs on stage, in which McDonagh examines the doctrine of copyright infringement and the various fair dealing exceptions. Relying on theatrical studies and the empirical study, the chapter provides insights into the way that producers, directors, playwrights, and actors regulate – or choose not to regulate – disputes about copying. As such, the research demonstrates that litigation is rare in this context, and whilst the participants held varying opinions on the rights and wrongs of coping, there appears to be a normative regulation within theatre, where a wide degree of copying is tolerated.

Even in relatively clear cases of copying, artists are wary of entering the area of law, fearing both the costs of litigation and that the ultimate result could be a bad precedent that restricts the overall freedom to create.

Chapter five addresses the questions at the heart of who possesses the authority to perform the play, enforcing credit and control by exploring moral rights of attribution and integrity in the theatrical context. An interesting example of integrity-based objection, and the comparative enforcement of moral rights in different jurisdictions, is Samuel Beckett’s existential tragicomedy Waiting for Godot. Beckett maintained that only male actors could perform the central roles in this play and went so far as to bring an action against a Dutch theatre company for casting women in 1988. Since his death a year later, the Beckett estate has notoriously continued to strictly enforce his moral rights, succeeding in preventing an all-female production of the play in France, but not in Italy. [This Guardian article says that since “the copyright for a play runs out 70 years after the playwright’s death, meaning women and non-binary performers legally have to wait until the end of 2059 to be able to play Vladimir and Estragon.” However, French moral rights last in perpetuity and therefore women and non-binary performers will, in fact, never be able to play these roles in France.] 

Lastly, chapter six draws the conclusions of the book together to address the questions that form the title of the chapter, How Should Law Respond to the Challenges of Theatrical Context? How Should Theatre Respond to Law? In doing so, McDonagh makes recommendations, including in the legal approach to joint-authorship and the need for law to be more accessible in this context. McDonagh states in his conclusion: 

It is inspiring that theatre practitioners continue to reinvent the medium and challenge the norms of authorship and ownership… I hope theatre practitioners continue to find ways to challenge legal constructs that they disagree with, in their commentaries, their texts, their performances, or ideally in ways we lawyers cannot yet imagine.

This book will appeal to readers interested in copyright and theatre specifically, but also those with interests in copyright, creativity and joint-authorship. If you are interested to hear from the author of the book, Luke McDonagh, he is delivering a talk on Friday 26th November, at the University of Finland via zoom. Details here.

Aaaand, curtain! 

Book review: Performing Copyright: Law, Theatre and Authorship Book review: Performing Copyright: Law, Theatre and Authorship Reviewed by Hayleigh Bosher on Monday, November 22, 2021 Rating: 5

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