We’ve all been witnesses to some form of drama, whether it’s the gripping TV soap-operas, or it’s the bus conductors brawling it out on the streets of Lagos. Drama amazes us, and this art could not come any finer than when it is enacted as a stage play in the theatre. Whether it’s Shakespeare’s “Romeo and Juliet” or Ola Rotimi’s “The Gods are not to Blame” , the theatre will always be an inspiration to many. However, given how broad the entire process of producing a stage play is, it becomes important to understand some of the possible points at which Intellectual Property intersects with the Theatre.
One of such important points is the intellectual property of stage directions. As you may well know, all stage plays are firstly scripted and written by someone called a playwright. This script is then translated into action on stage with the help of another person called the director. The issue arises at the point of the distinction between protection of the rights of these respective individuals. As it stands, playwrights have clearly defined legal protection for their works. This is because given that their works are often expressed in a script, they satisfy the copyright principle of fixation which requires that copyrighted works must be in a fixed and tangible form. Hence, playwrights enjoy exclusive rights to the reproduction and distribution of their material, and can easily sue for any infringement. The case however, is not so smooth for directors.
When it comes to copyright infringement, directors face more of a hurdle. This is partly due to the inability of directors to satisfy the principle of fixation. For instance, how do you copyright intangible concepts such as the position of lights, placement of furniture, movement of actors, and so on? It seems impossible. Another factor which serves as an obstacle is the possible realization that granting a director Intellectual Property Rights under the work could possibly increase his earnings under it, and reduce the author’s share of the profit. In fact, the amount of arguments against granting directors copyright protection are much greater than the arguments for, so much so that according to Times Reporter Jesse Green;
“If each director’s staging of a relatively new play had copyright protection, very soon there would be no staging options left. The play would become so encumbered with licenses, or the risk of lawsuits, that it would be impossible to produce – a net loss to the culture. Even classic works like Romeo and Juliet might gradually be removed from the public domain, thus perverting the aim of copyright law, which is to increase the flow of ideas and artwork by providing an incentive to their creators.”
Regardless of all unfavorable odds, there still exist a few means for the protection of the copyrights of directors in plays. One of such is Work for Hire Agreements. These agreements create an employer-employee relationship between the producer and the director, under which the director is paid a specified fee to provide his services for a certain period. Although there is compensation under such agreements for the director, this compensation is rarely in the form of Intellectual property rights. However, under certain circumstances, directors can negotiate the terms of their contract with producers to grant them increased control over the copyright protection of their work. This is usually done via collective bargaining agreements facilitated by the Society of Stage Directors and Choreographers (SSDC). The SSDC helps its members to model contracts, all of which provide that the rights in the direction “conceived by the director…in the course of rendition of his/her services…shall be…and will remain the sole and exclusive property of the director”. Hence, these contracts help to: copyright stage directions and ensure that the copyright is owned by the director; prohibit or prevent the producer from the publication of such directed works without the director’s permission, as well as ensure that the producer can only use their work for specified productions. This puts considerable control into the hands of the director.
Furthermore, there is also the exception of Joint Authorship. The Copyright Act defines a joint work as “a work prepared by two or more authors with the intention that their contribution be merged into inseparable or interdependent parts of a unitary whole”. Often in the course of the making of a play, directors and playwrights work together to clearly define and perfect some roles, characterization, narratives, and so on. Hence, certain directors may want to claim Joint Authorship of the work. This is to the effect that they become co-owners of the copyright in the work. Under this arrangement, they share the profits that accrue to the play and have equal power to exercise the rights to adaptation, performance, and reproduction without needing to obtain consent from the other joint author.
In conclusion, the question of copyright protection of the rights of directors still remains very unclear, as there is a dearth of case law clarifying the law’s position on it. Regardless of the few ways to enforce copyright protection, it is still this author’s opinion that enough is not being done to protect directors’ rights, as there are still defences to an infringement such as the fair use doctrine and the merger doctrine. Thus, it is humbly submitted that there should be more legislations established to define and structure the rights of a director in a play.