Copyrighting Stage Directions and the Constitutional Mandate to 'Promote the Progress of Science'

44 Pages Posted: 14 Sep 2008

Date Written: September, 10 2008

Abstract

In today's theatre industry, copyright law protects the contributions of two main players - the original playwrights and the production companies that secure rights from the playwrights to publicly perform the dramatic work for a period of time. The highly collaborative nature of the theatre stands in sharp contrast to most other forms of performing arts. This collaboration, however, has increasingly spawned a desire by additional players, stage directors in particular, to assert and secure copyrights in their contributions to the dramatic works.

In recent cases, stage directors have argued that their creative input, when sufficiently substantial and distinct from the underlying play, requires recognition and compensation when intentionally appropriated by directors, producers, or others. The directors, through their union, the Society of Stage Directors and Choreographers, deny that these actions in any way make claims against playwrights or their royalties or other income. To the playwrights, however, these are empty words. In their eyes, a director's copyright represents a drastic limitation to their ability to exercise control over the work they create and would undermine the spirit of trust and openness which is essential to the collaborative process.

The present statutory scheme for seeking copyright protection does not permit the courts to make a case-by-case application of the constitutional mandate that Congress promote the progress of science when exercising its constitutional power to issue copyrights. While the Court recognizes great deference to Congress in fashioning a copyright system, it nonetheless requires that the system comport with this constitutional directive. This Comment shows, however, that Congress' existing scheme may permit copyrights to be issued in situations that frustrate the purpose of this mandate. Fringe cases, like stage directions, should alert Congress to the necessity of clarifying its statutory protection for copyrights in light of this constitutional goal. Protecting copyrights for stage directors would not incentivize new creation by playwrights nor would it encourage the dissemination of existing dramatic works. And so in light of well-crafted arguments that could support a director's copyright under the 1976 Copyright Act, Congress should amend the Act to be clear that the promote the progress language presents a limit to granting copyrights that cannot be exceeded. Such an amendment presents the best option for addressing peripheral works like stage directions and guarantees that constitutional limitations assert their due force.

Keywords: stage direction, Stage Director, Theatre or Theater, Play, Director's Copyright , Promote the Progress of Science, Copyright Preamble Clause , Progress of Science, Progress Clause

JEL Classification: K39, K19

Suggested Citation

Talati, Jessica, Copyrighting Stage Directions and the Constitutional Mandate to 'Promote the Progress of Science' (September, 10 2008). Northwestern Journal of Technology and Intellectual Property, Vol. 7, No. 2, Northwestern Public Law Research Paper No. 08-31, Available at SSRN: https://ssrn.com/abstract=1266233

Jessica Talati (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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