How Should We Publish & License New Plays In An Online World?
The #RightsWeek Series on HowlRound: What is the state of intellectual property? What are the rights of theatre artists and new work? In this series, Samuel French, Inc. asked four professionals in the theater industry to share their thoughts on this subject. (Please note that the presented opinions are those of the author, and do not necessarily represent those of Samuel French.)
Mike Lew is a Playwright-in-Residence at Ma-Yi Theater Company through the National Playwright Residency Program, funded by the Andrew W. Mellon Foundation. Find out more about his residency experience here, and learn about the impact of the program at large here.
Between the National New Play Exchange and Kanjy, we now have two brand new searchable new play databases where playwrights can upload their scripts and enter a few parameters about their work (genre, cast size, and casting breakdowns), so that producers can use those same parameters to find new plays for production.
The theory of change behind these databases is that new play curation is inefficient, and that producers are having a hard time finding scripts that suit their needs. These databases can step in to provide more access to plays and more powerful ways to sift through the work. I’m not quite sure I agree with the theory. While I think the databases may be useful for schools and small companies, at the highest level I question whether access to plays is really the rate-limiter behind getting more plays to production. Rather I think the dialogue between producers and playwrights is limited and opaque and inauthentic, leading to misspent efforts all around.
Nevertheless these databases are still in their infancy, so they could very well represent a powerful new advocacy tool for playwrights. I’ve been asked to consider the risk of piracy when it comes to these new technologies, and this was certainly a concern at a recent Dramatists Guild of America event surrounding the National New Play Exchange. Several playwrights voiced the concern that if they uploaded their scripts online, someone could download their work and produce it unauthorized.
I don’t really share their concern. To me the biggest risk of piracy today is a pervading culture of complacency when it comes to respecting copyrighted works. If you want to produce a play, you need to obtain the rights for it. As an industry, we’re not doing a good job getting that message out or policing offenders. Since theater is a live art form, to me there’s nothing about digitization that intrinsically makes piracy easier. Unlike the music and film industries, where digitization (and the attendant problem of piracy) has had a vast and industry shaking effect, I don’t anticipate the same thing for theater. As a friend once said, the worst piracy tool of the century is the photocopier.
In fact digitalization is actually making licensing easier than ever before. In the old days, to license a play you would have to call up the publisher, request the rights to a play, mail in a check, and then wait for an approval certificate by mail. Today you can license a play online with your credit card. So really the only excuse not to license a play is just willful ignorance of copyright laws!
To me what’s really interesting about these new play databases is what’s going to happen to the concept of a “finished” play. Under the publication model, when a play gets published at a traditional publisher like Sam French, the paper copy becomes the standard manuscript. The writer must—kicking and screaming—commit to a “finished” version of the script, and all subsequent productions must adhere to that version. But with the new online databases, playwrights can upload a version of their play and then upload subsequent revisions. Authors are in essence self-publishing works-in-progress. If traditional publishers similarly commit to publishing full manuscripts online, what’s to stop a playwright from wanting to upload a new version? If that’s the case, then what is the distinction between a database of early-draft “unpublished” plays and a database of finished “published” ones? All of a sudden, a new play starts to look less like a finished manuscript and more like a living document.
[Side note: I’m wary about the fact that the National New Play Exchange features downloadable PDFs, but not because I’m worried about online piracy. I’m just worried that people might download an outdated version of my script, which is why I’d prefer an in-application reader system as opposed to a downloadable system.]
Inevitably, the database camp and the publisher camp will draw ever nearer. When that happens, I’ll be curious to see how we as an industry can agree upon a standard for locking a digital script, such that a digital script holds the same sense of permanence we now vest in a paper copy. But these are really age-old problems, not digital ones. Shakespeare had multiple errant versions of his manuscripts floating around in the world. He’s probably also had his fair share of pirated productions.
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This is a far more reasonable take on piracy than yesterday's article by Sean Patrick Flahaven, which I discovered after commenting that while it he is a writer, he was also senior vice president for a major publisher. It's publishers that are affected most by piracy, not playwrights, but they are even more threatened by the ability of writers to self-publish and negotiate directly with theatres thanks to sites like Kanjy.
Piracy is generally great for playwrights. In the old days, a theatre might pass on a script, but if the reader knew someone that might be interested in doing it, they could simply hand off the script for them to take a look, and generally that was legal. Now they forward a copy of the pdf, and suddenly that's copyright infringement and piracy. Honestly, having someone pirate my script so they can read it is exactly what I want as a playwright. That's how publishers make their money, so of course they're going to argue against it.
The only piracy problem for playwrights is people producing their work without permission, and I have to wonder how big a problem that really is, esp. with the internet watching everything theaters do.
I don't think a random sampling of playwrights would agree that piracy is "generally great" for them. I also don't think they would consider a copy of their play being passed around piracy. Nor do I hear the publishers loudly complaining that people can email a play to a friend instead of buying the acting edition, as long as copies are purchased for rehearsals. The piracy that has the community concerned is, as you correctly point out, that theaters are doing plays without having the rights. This is happening. I had a situation just this week with a play already in performance, no contract in place, and the producer telling me the author should waive income because the production is such a benefit to the author. It's not even happening in the country in which the playwright lives. Productions are surely a benefit, but so is the money to buy groceries. Every organization that does a play without rights in the name of an education program, every director who changes a work because they think they have improved it, every theater that doesn't confirm they are rehearsing the most current draft is doing harm to a playwright. And as I said in the Monday #rightsweek panel, most of us wouldn't have a job if writers weren't writing plays. While it would seem with YouTube, the internet, Facebook etc. rights violators would be caught more quickly, that's only partly true. Yes, Google Alerts help catch unlicensed productions. I just had one catch that someone wasn't honoring the required double casting in a play. But the internet doesn't help catch script changes, intermission insertions and all of the myriad changes theaters make to plays. I don't know what we do to reduce those problems. I do know the conversations this week have made the issues more public and I'm grateful to Samuel French for doing the heavy lifting in creating this dialogue. I believe most people want to behave appropriately, I think it's a genuine surprise to many what writers, and their reps, consider inappropriate. Let's hope this education increases awareness and positive changes follow.
Beth BlickersLiterary Agent-Abrams ArtistsPresident-Literary Managers and Dramaturgs of the Americas
I agree with everything you say, except "I also don't think they would consider a copy of their play being passed around piracy." Technically this is copyright infringement if they are sending a copy of a pdf, and when I said piracy is great for playwrights, this is the kind of piracy I meant, not the unauthorized production kind.
I answered your comment on my article in a separate thread, Octagon, but I agree with Beth's points above.
I would further clarify that I've spent my entire career as an author, an author's artistic collaborator, and an author's business representative. I'm a long-time member of the Dramatists Guild and ASCAP (I serve on committees at both organizations), and I've taught theatre and music business to aspiring writers at the graduate level at NYU-Tisch for 13 years.
Your point about publishers being hurt more by piracy than authors is a common misconception. In the theatre world, especially in the last 50 years, agents/licensors/publishers typically get only 10-20% of an author's income. I assure you authors are hurt more by piracy than their representatives are, but one responsibility of their representatives is to try to protect them from infringement.
You, as an individual author, can certainly choose to make your work available for free online and hope for the best, but to argue that everyone should do the same is not taking into account the reality of the marketplace or the law.
Sean Patrick Flahaven
Hi, Mike. Thanks for a terrific contribution to the larger RightsWeek conversation. Like you, I'm troubled by the culture of complacency with regard to copyright; I'm also equally captivated (as I think I noted extensively in last night's Rights Week panel) by what I see as an inevitable transformation in the publishing sector.
I have to question the way you've framed what you call the "theory of change" behind the New Play Exchange, though. I want to be clear about why we are doing what we're doing, which is much less centered on producers than on serving the entire new play sector -- playwrights, producers, literary managers, dramaturgs, and more -- with one holistically-designed platform.
We consider the New Play Exchange an upgrade (or perhaps an alternative) to the submission process: the current technology, if you will, by which -- nominally, at least -- playwrights connect with producers. That’s the theory of change behind it.
(For theaters in particular, we agree: access to plays is not the rate-limiter. It’s access to new plays and to a wide network of theater professionals.)
Ultimately, though, we plan to release the New Play Exchange to the theater community and then discover what it is, because… who knows? Whenever you release new technology into the world, you have to do it humbly and with detachment. Who will it ultimately serve? Everyone, we hope. But if our audience proves to be different in some way, we’ll (to use the language of agile product development)
inspect and adapt.