Copyright Issues, "Chicago," and Herbert H. Lehman High School

[mabfan]

Yesterday, I came across the article That's Show Biz (and a Lesson in Copyright Law) in the New York Times. The article summarized a series of events that happened last week involving a student production of the musical "Chicago" at Herbert H. Lehman High School in the Bronx, which is being performed this weekend. For those of you who haven't heard about this yet, the story goes as follows.

The school drama teacher, Anthony Cerrini, decided that the school should put on a student production of the musical. He reconstructed the book by taking dialogue from the Internet, transcribing some of the 2002 film, and then writing some on his own. (Already I'm wondering what he was thinking.) The school bought costumes and built sets, and for the past few months a student cast has been rehearing.

And then, when the advertisements for the show were sent out, the Samuel French company, which controls the licensing rights for "Chicago," very properly sent them a cease and desist notice. After all, the school had not asked for permission, had not paid fees to the copyright holder, and was putting up a production too geographically close to another production (which, in this case, happened to be the one on Broadway).

So what did the school do? They whined. To the press. Two days ago, the New York Daily News ran the article Stop the music!, focusing on the poor kids who were crying their eyes out because all their hard work would be for nothing.

Now, I'm all in favor of going to the press if an injustice needs to be fixed. A few years ago, Stuyvesant High School went to the press when one of the two FedEx boxes of Westinghouse Science Talent Search competition papers that they had sent to Washington, D.C, arrived a few hours after the deadline. FedEx had picked up both boxes at the same time, and had guaranteed delivery by the deadline, but only one box made it in time. So when it looked like half their students' papers weren't going to be accepted because FedEx screwed up, the school administration went to the press. Public opinion threatened to go against both Westinghouse and FedEx, and so, in a stunning reversal for the first time in history, the Westinghouse Science Talent Search accepted the late papers. The next year, they changed their deadline rule, stating that if the papers were delivered by a carrier who guaranteed delivery by deadline, the papers would be accepted if a record proved that they had been picked up by the carrier within a reasonable amount of time beforehand.

I was fine with that turn of events because in that case, it was not the fault of the school or the students. But in this case, the mistake was precisely the fault of the school. The school principal himself , Robert Leder, even said that for the past 27 years they have never applied for a license when putting on a show. I'm boggled by this man's ignorance of copyright law.

And I'm boggled that public pressure got the rights owners to grant permission for "a single unauthorized, unlicensed performance at the school," as the Times put it. (On a side note, if they've given permission, how is it that the performance is now unauthorized and unlicensed?)

But I'm not just boggled. I'm appalled. I'm appalled that four City Council members and Public Advocate Betsy Gotbaum planned to stage a protest in front of the Ambassador Theater where "Chicago" is currently performing. I'm appalled that Samuel French is being cast as the bad guy in this case. And I'm appalled at the message this is sending to the students. They haven't learned the proper lesson here, that the copyright of artists and writers must be protected. Instead, they've learned the old adage that it's easier to beg forgiveness than to ask permission.

I'm also upset. I'm upset because I'm a writer, and I've had people also appropriate my work without permission. Now some people might take the side of the students, because they see how much money "Chicago" rakes in for its creators and wonder what the harm one little student production can do. Well, I've met people who have their plays licensed by Samuel French, and many of them rely on these license fees for a living. Most playwrights aren't raking in the dough, and they depend on these amateur productions for their bread and butter. A case like this makes it more likely that some other school somewhere will decide to put on a minor play without permission, essentially taking money from a playwright's pocket.

But I'm not just upset because I'm a writer. For many years I was a teacher, at schools that put on many theatrical productions a year. Every single drama department at the schools where I taught made damn sure to license the rights to plays and musicals before performing them. The way I see it, all the schools that do the right thing, that respect copyright law and apply for legal licenses, are being punished. The message being sent is that a school which flouts the law will be rewarded if enough people whine about it.

I am gratified by two developments, though. First, Joel Klein, the New York City schools chancellor, is going to send out a statement immediately to remind all the schools about intellectual property laws.

And second, in light of what Leder said about never having applied for a license before, Samuel French is going to look into the school's productions from over the past 27 years. As Charles Van Nostrand, the president of Samuel French, said in the Times, "I'm a little curious about what those other 27 years were."

Go get them, Mr. Van Nostrand.

Comments

[norda.livejournal.com]

The former high school drama student in me is appalled at this, too. I knew about applying for licensing for performances when I was *seventeen*; our teacher, Charlie Clute, made a point of making all his students aware of it, year after year.

[ffoeg.livejournal.com]

Are you arguing that a high school production of Chicago -- or any musical -- could have a commercial impact on the Broadway show? I am of mixed feelings on intellectual property laws, but I think that argument doesn't fly. No doubt that what the school did was infringing, but I'm not so comfortable saying that what they did was obviously morally wrong.

I won't argue the law, but we're living in an age where copyright holders are exerting far more control than was envisioned by the framers of the Constitution or is healthy for our culture. The school may have gone over the line but I think we do need to look at ways to make sharing culture easier.

[mabfan.livejournal.com]

There are quite a few arguments that the high school production could have a commerical impact on the Broadway show. Here are two examples off the top of my head:

A NYC resident was planning to see "Chicago" on Broadway, but hears about the Lehman School production and chooses to go to that one instead. Commercial impact: the price of one ticket.

Or; a NYC resident who was thinking of seeing Chicago on Broadway decides to check out the high school production first. The quality of the production is so lame that the theatre patron is soured on the show forever. Again, the commercial impact is the price of one ticket.

But frankly, I don't care that much about the financial impact on the Broadway show. It may be negligible, it may not be. What concerns me more is the consequences of this decision, as I noted near the end of my post.

And I agree that some copyright holders are exerting far more control than they should be, as was shown by the passing of the Bono copyright extension act. But there are other issues involved here.

Let me give you another example of someone who might have been hurt by this decision. In general, companies such as Samuel French don't license current Boradway musicals and revivals to high schools. High schools usually put on older musicals that are currently not being shown professionally. What that means is more opportunity for those writers who musicals might have been excellent but weren't popular enough to maintain a long Broadway run.

By allowing this school to perform "Chicago," some other, less rich creator is losing out.

[xochitl42.livejournal.com]

I don't necessarily believe Chicago' s bottom line would be affected, but it starts a very ugly slippery slope for productions and authors' rights in general.

And what I find even more appalling is how the drama teacher "reconstructed the book by taking dialogue from the Internet, transcribing some of the 2002 film, and then writing some on his own."

That's just galling (speaking as a writer and a playwright myself). Taking that into account, mabfan's second argument above ("Or; a NYC resident who was thinking of seeing Chicago on Broadway decides to check out the high school production first. The quality of the production is so lame that the theatre patron is soured on the show forever.") rings even more true--what high school-production audiences see is a diluted, mangled, patchwork thing that calls itself Chicago.

All in all, I think mabfan's right, and the person truly to blame is the drama teacher, whose half-baked idea demonstrates some pretty poor judgment. And I hope there are consequences for those past 27 years--not necessarily financial, but whatever it takes to put in some sense of responsibility and accountability in performing copyrighted works.

[lzernechel.livejournal.com]

heh, I started writing a comment to this and realized quickly my comment would be as long as your initial statement. So, I'm continuing the discussion on my blog... citing you, of course, (copywrite humor there)

Seriously, this is a very important matter that people are ignoring.
I agree with you, this is the school's fault. Idiots. Not paying rights? Geez. high school rights are cheap. Samual French is definetely getting backlash they don't desearve...

[mabfan.livejournal.com]

I'm curious to see what you say.

Do include a link to this post, of course, but I'd also appreciate another reply here with a link to yours, so people reading here can find it.

[terri-osborne.livejournal.com]

The fact that the high school's production is close to Broadway in this instance really is incidental. Yes, in some folks it could lead to confusion of the "brand", but that's not the crux of the argument here. Yeah, there is some "unwritten rule" that two productions of the same play/musical shouldn't be within a particular proximity to each other, I remember that from my years in professional theatre, I just don't recall if it's actually set down anywhere right now.

As a former professional theatrical sound and light designer, I can assure you that theatre isn't the high-paying industry that so many think it is. One of the first things I was ever told in my training was that if you went into theatre, you were doing it because you loved it. You were NOT going to make a ton of money, even on Broadway. Taking licensing fees out of a playwright's income really is stealing part of their paychecks. And we need these folks to stick around to write the plays and musicals. Getting them jaded and cynical (even more than its been my experience they are) isn't a good thing. Who'll write the plays/musicals then?

As a former professional intellectual property paralegal, I've seen how many people think they can "borrow" (read: steal) other people's work to make money for themselves and get away with it. Personally, I'm all for people protecting their work. If someone stole your work and used it for their own profit, would you be pleased? People are defending their copyrights more than they used to, and that can be nothing but a good thing in the end. Sharing culture is one thing, creators and copyright holders being able to pay their bills is something altogether different.

We live in a capitalist society. The intellectual property of writers is their product to sell in the market. If we didn't have the ability to enforce control over the product, what kind of culture would we have? Would anyone be willing to be write books or plays if they knew they couldn't do it for a living because they couldn't control what was done with what they wrote?

(Although, honestly, I'd like to know how any of us can legitimately claim to know what the framers of the Constitution could possibly have had in mind. We can speculate, sure, but unless someone's got a telephone box with a time machine, it's a bit difficult to state anything explicitly.)

What the school did was wrong, illegal, very, very stupid, and setting a horrific precedent. Ostensibly, that school has a stance against plagiarism and copying other students' work. What they've done really undermines that stance.

[madwriter.livejournal.com]

>>(Although, honestly, I'd like to know how any of us can legitimately claim to know what the framers of the Constitution could possibly have had in mind. We can speculate, sure, but unless someone's got a telephone box with a time machine, it's a bit difficult to state anything explicitly.)<<

At least on copyright issues certainly. We have things like the Federalist Papers and the Anti-Federalist Papers and their letters, but to my knowledge none of them ever dealt with this subject.

[clauclauclaudia]

my comment athttp://mabfan.livejournal.com/231348.html?thread=1532596#t1532596 was meant to reply to this comment.

[delkytlar.livejournal.com]

The fact that a New York City public high school has hired an uninformed drama teacher and clueless principal is not exactly a surprise to me. (Full disclosure: I am a lifelong NYC resident with two children in private school) I knew quite a few people who went to Lehman, and by all accounts it's not the best run school in the city, though it is well-regarded in some areas.

Whether one agrees with current copyright law or not, the bottom line is that they did break the law. Not only did they perform the play without permission, but the teacher adapted it without permission. There is no gray area here where the school's actions could be remotely considered OK.

All citizens are obligated to follow the law whether they like that law or not. I would love to have parked my car on the "No Parking Thursday" side of the street this morning, as it would have saved me a long walk to the train. Who would it have hurt if they couldn't sweep the street on this drizzly day? There is a law on the books, and I have to abide by it. Our schools should, too, because if we allow school officials to thumb their noses at the law, what business do they have telling kids they can or can't do any particular thing during the school day?

Gotbaum and the City Council members had no business protesting French exercising his rights. Legally, these officials were wrong. Fiscally, they were also wrong. Public officials cannot advocate theft by city employees.

Message to lifelong NYC resident

[madwriter.livejournal.com]

Totally off topic here, but considering that Roanoke, VA is my hometown, I want to apologize on behalf of the city for those three stupid kids who dropped seven buckets of paint on one of your police officers and three of their cars, and to thank you folks for giving the incident such wide coverage, as two of the three come from the richest school in the area (which thus takes it for granted that they can usually sweep anything under their well-worn rug). :)

[mabfan.livejournal.com]

I've unscreened it; if you want to copy it over and post again, feel free. (But maybe you could find a softer synonym in your last sentence...)

[530nm330hz.livejournal.com]

Imagine if the kids had gone on to Harvard and written novels.

[mabfan.livejournal.com]

Ha! Ha, ha, ha.

At least in that case a proper lesson has been learned.

[530nm330hz.livejournal.com]

(Split into two posts because the first was a cheap shot and this one is substantive.)

This reminds me of the times people have told me "I loved the new Zamir CD so much I made ten copies to give to my friends." I've never had the guts to reply "And when will we be receiving your $150 donation?"

Sigh

[mabfan.livejournal.com]

I once had someone come up to me at a convention and tell me that she loved a story of mine so much she ran off copies for everyone in her synagogue. Meanwhile, Analog magazine's circulation numbers continue to drop...

(And don't get me started on people who want to reprint a story for free, and tell me, "Think of the publicity you'll get!")

[docorion.livejournal.com]

Hm. I can see both sides. On the one hand, the students (ignorant of copyright law, and there's enough nonsense for a whole 'nother post about teaching; I had *very peripheral*association with the drama department, and *I* knew that you had to license the damn plays) had, indeed, worked hard; I would argue that letting them put on one performance is reasonable. After that one performance, though, you then go after the school (and the school system, for not adequately supervising this) for all the back licensing fees they owe until the beginning of time. Samual French wins in the court of public opinion because now they're going after the adults, not the kids. The kids win because they learn (either formally or via the grapevine) about copyright law and the consequences of flouting same.

That said, the Bono amendment annoys me *intensely*, and gives me much less sympathy for copyright owners across the board; its impact is not limited to the mouse.

(Reply to this)

[mabfan.livejournal.com]

Part of the problem I see with Bono is that it's the corporation making the money, not the creator.

The one nice thing about the extension act, though, is that the courts have ruled that the creators who sold their work outright in the 1930s and 1940s never meant to sell those works for so many years. That why the heirs of Jerome Siegel might be able to get some more money out of his creation of Superboy.

[desireearmfeldt]

1) Yeah, making a stink about how you've been wronged because you broke a law and someone told you to quit it dumb, and getting lauded for it is inappropriate. Unless the issue at stake is that someone is deliberately breaking a law to make a public fuss about how bad the law is (e.g. sit-ins). But there, you're accepting that the law says you should be punished for this thing--you're protesting the existence of the law, not the fact that it was enforced on you like it is on everyone else. And people confusing the two scenarios is worrisome, if perhaps not surprising.

2) As both a writer and theatre person, I've never particularly understood the licensing paradigm that says, e.g. "there's a travelling revival of this show, so your little local theatre/school group can't have the rights." Yes, two productions of the same show *might* compete over audience, but I can't imagine that the impact is big enough to worry about if the productions are not really geographically close and at the same professional level. No one goes to see a high school show instead of a Broadway show or vice versa; the reason you'd go to one or the other just isn't the same.

3) But I don't have a problem with the fact that there *is* licensing, and you have to kick back some money to the author when you perform their work. I'm less down with the whole copyright-after-your-death thing, because I don't see in that case why someone who isn't the author has the moral right to make money off the book/play.

On the other hand, beyond author's copyright, there ought to be some incentive to publishers and providers of books and plays to keep providing them, or we the consumers wouldn't be able to get them. So I think it's reasonable to have rules that say you should buy books/scripts rather than just xeroxing everything--if everyone just xeroxed everything, we wouldn't have anything to xerox.

On the third hand, though, I'm not as rigorous as I could be about never xeroxing that which I shouldn't xerox, in a situation where the users aren't going to make money off of it and would not buy the requisite copies if there were no xeroxes available. (Though when I host scriptreading parties, we just huddle around whatever books I/we own, a fact which led to some of my friends giving me multiple copies of books for Christmas. :) )

[mabfan.livejournal.com]

I can't help but point out an amusing irony here in your post -- when you use the word "xerox," you really ought to use the word "photocopy." "Xerox" is a trademark.

[somehedgehog.livejournal.com]

What bugs me is the numerous schools who played by the rules, applied to put up Chicago, and denied. Instead, some completely green drama teacher ignores all the rules and still gets to put up Chicago: The Fanfic. I don't blame the kids - it's not their job to apply for the rights, and while I don't thing French should have given them the rights, it would have been unfortunate for their hard work to go to waste becaust their teacher was a moron. But that drama teacher should be fired. It's his job to teach kids the principles of drama, and one of those principles is ethics.

[magid.livejournal.com]

some completely green drama teacher
Apparently with 27 years of teaching experience, too.

[chanaleh.livejournal.com]

I think the ethical problem is not whether the student play will have a negative financial impact on the Broadway show. It's more the contrapositive -- that the student play, due to the geographic as well as temporal proximity, derives benefit (to which it is not entitled) from its association with the Broadway show. To my mind, that makes it all the more egregious to blithely ignore licensing issues: "Oh, let's do Chicago cuz it's a really hot property right now! Permissions? We don't need no stinkin' permissions!"

[cellio]

Hear, hear.

That teacher should be out on his tush, or at least barred from running any more plays until he convinces the school that he is no longer a liability. I knew better when I was working on shows in high school; a teacher has no excuse.

[ianrandalstrock.livejournal.com]

Exactly! What you said. And I dearly love the part that he's stealing from the internet, the movie, and writing some on his own. Not only is he infringing by not paying rights, but he's actively damaging the work and then claiming it's the original. Sure, he should be fined, but for his hack-work, he should be flogged.

And don't be too easy on Gotbaum and the City Council: they keep proving their, uh, non-grasp of reality. The move to give everyone who lives in the City a vote; their pandering to public opinion at the expense of the law -- I'm not terribly pleased with those folks.

[clauclauclaudia]

Actually, the proximity *is* an issue because it's part of how licenses are granted. Typically while a show's on Broadway there will be different radiuses for how close you can be to the production and still be granted a license, and those are based on how professional a production you're doing. School, community theater, regional theater.

In other words, it's not an unwritten rule, it's part of the licensure process from Samuel French. I'm sure MIT's production of Chicago was properly licensed, and it's at about the same level, but it's several hours' drive further away from Broadway. *And* they actually applied for a license. ;-)

On a separate note: sorry, creators who feel differently, but I'd love to return to something like 28-year copyright spans. ;-)

[terri-osborne.livejournal.com]

Thank you. I'd forgotten about the bit with the how the licenses are granted. :)

[sethg]

First, I want to be clear that I think that the drama teacher, the NY Daily News (whose writers and editors surely know better), those City Council members, and the Public Advocate have acted in an appalling fashion. Nothing I say after here should be construed as an apology for their actions.

(Deep breath.)

I find it interesting that on the one hand, we have large corporations (and some individuals) who make fortunes from copyright royalties convincing Congress to extend copyright terms, write goofy copy-protection schemes into the law, and so forth; and on the other hand, it seems like the vast majority of Americans would be more ashamed of shoplifting a candy bar than committing a felony copyright violation.

Something's gotta give here. We should have some way of compensating artists for their work that both the creators and consumers of art consider more or less fair.

(No, I don't know what that is.)

[xiphias.livejournal.com]

There's a reason they're usually high school Gilbert and Sullivan clubs.

G&S is in the public domain.

[mabfan.livejournal.com]

G&S is, but technically, the Schirmer score arrangements are not....

[osewalrus.livejournal.com]

Right on law, right on facts, but it raises a more difficult problem. How do we balance social policy needs?

Public performance of plays is clearly an important element in the incentive to write new works. And Chicago is hardly so old that we can say it should have gone into the public domain years ago. (Yes, it would have under the original 7 year copyright, but it doesn't fall into the catagory of things like "Happy Birthday" that have been extended so many times that it becomes a windfall to the author). Allowing public schools to do free performances like this would, indeed, have a significant impact on both the incentive to write plays and the incentive to create distribution systems.

So the copyright law is functioning properly, right? Well, but we have another strong public policy of wanting to encourage high school and elementary school drama. It is educational. It has positive beenfits. And it provides a cheap alternative to those who cannot afford the Broadway tickets.

This does not excuse breaking the law, but it gives rise to a question of policy. "The law" is, after all, a creature of the legislature, created to balance policy interests and goals. We have in the past altered the expectations and repayments of copyright holders for what we consider good reason. Mechanical licenses to foster the development of new technologies is the classic example.

The school here may be clueless. But just ignoring the issue of how do you make public performances for high schools affordable doesn't go away. The harder question is -- what do we do for policy?