Play Copyright

Just Whose Play Is It Anyway?

by Eva Nell G. Havill
(updated 2002, by Kenny Chan)

Every audience member has seen the phrase, “This play is produced with the permission of Samuel French Limited” (Or Playwrights’ Guild of Canada or whomever) in their program.  What does it really mean?  It means that the theatre company has received permission to perform the play, has purchased all their scripts (not photocopied or borrowed from the library) and will be paying royalties to the author.  It also means that any changes to the script have been approved by the playwright (or their agent).

When planning a season or individual production, a theatre group or producer should check to see “if the rights are available” and identify who they should contact to obtain permission to produce the play.  If in doubt, the wisest thing to do is speak to an organization like the Playwright’s Guild of Canada (if the play is Canadian) or Samuel French Company or the Dramatists Play Service (if it is a non-Canadian work).  If they don’t know they will refer you to the appropriate place to check.

In the case of a play or original dramatic, literary, or musical work, copyright is a form of intellectual property that is protected.  Authors have the right to be compensated for the labour they put into writing that work.  It also protects the author’s integrity by ensuring that their work is not misinterpreted or used to convey an impression that the author never intended.

The current “Copyright Act” in Canada is federal legislation, started in 1921 and coming into force as of 1924.  This act (updated in 2001) covers both the right to print and reproduce a work, and the rights to perform a work.  Literary texts, music, visual art, pamphlets, lectures, computer programs, maps and architectural plans are covered in this act.  A script, a speech or even a dance performance in which movements have been recorded, is covered by copyright.  However themes, ideas, mere titles, names, catch phrases, and anything else that is not really substantial, cannot be covered by copyright.  For dramatic works, a playwright automatically acquires copyright protection as soon as the work is made, providing the author is a Canadian citizen.

Copyright does not last forever; it gives an author exclusive rights for a limited period of time.  That time is usually for the life of the author, plus 50 years (in Europe it is 70 years so if you’re using a European text, check the copyright carefully).  There are some exceptions to that rule.  In a situation where the author is unknown for example, copyright exists for 50 years from the date of first publication of the work.  In a case of joint authorship or collectives, copyright exists for the life of the author who dies last, plus 50 years after their death.  For posthumous works, copyright exists for 50 years from the fate of the work’s first publication.  Once the copyright has expired, the work is said to be “in the public domain”.  There is no copyright and no one owns it.  The plays of William Shakespeare, for example, are in the public domain.  However, if a publisher decided to put together a book of only some of Shakespeare’s plays, that book as an entity in and of itself would be protected under the Copyright Act.

If it proves difficult to track down the author of the play and you have made many attempts to locate the individual, you can contact the Copyright Board of Canada to apply for permission.  They will ask you what steps you’ve taken to find the author.  Royalty payments are still required.

An author or their estate may choose to ‘assign’ copyright, which means they transfer the rights to the piece and someone else owns them.  Authors may also make an arrangement with someone else to administer their copyright for them.  This is where an organization like the Playwright’s Guild of Canada or Samuel French would be used.  They are responsible for giving permission for the use of a script.  This permission may not always be granted (there may be a blackout on productions of a script because the playwright is rewriting, or there may be a group touring into the area with a production of the same show).

What constitutes infringement?  Firstly, the unlawful reproduction of a copyrighted work, such as photocopying scripts for rehearsal instead of purchasing scripts from the playwright or agent.  A ‘colourable’ imitation of work, which is a reproduction of someone’s work that you pass off as your own (plagiarism in other words) is an infringement.  The Copyright Act also covers the ‘moral rights’ of authors.  Any changes to the literal text without authorization is an infringement.  Any unauthorized changes to a script could directly or indirectly damage the playwright’s reputation.  When a company such as the Playwrights’ Guild of Canada grants permission to someone to perform a play, they are giving permission for that work to be reproduced in its entirety.  That means any changes made to a play – including gender changes, taking out dialogue, adding words or adding scenes – may not be made without specific permission of the author or their agent.  If you don’t receive permission to make these changes, you are infringing the copyright, no matter how valid the changes seem to be to you.  If there are changes you wish to make, you may speak to the company that grants permission and ask about the proposed changes.  They will then go to the author’s agent and make the proposal, and the author (or their agent) will make the final decision.  Sometimes changes have to be made but it is important to ask for permission.

The consequences of infringement can be very serious.  The first time you get caught you may only receive a fine and a warning.  But if it happens again, you may be looking at a bigger fine or withdrawal of permission privileges.  The next stop is legal action and that can run into the hundreds of thousands of dollars.  You may think that no one will notice, but don’t be sure.  Playwrights often comb through theatre listings in newsletters to see who is producing their plays.  Access© (formerly known as CANCOPY) represents Canadian creators and publishers to ensure easy and legal access to permission to photocopy for users and compensation for the copyright holders.

In the final analysis, decisions about the infringement of copyright will end up being made by the courts.  You may think that setting a play in the living room instead of the kitchen isn’t infringement, but the playwright had a reason for setting it in the kitchen.  If in doubt, check with the company supplying the permission.  They’re only a phone call away.  Playwrights want to see their work produced, so they want to accommodate the wishes of the producers.  Many (but not all) would probably be quite amenable to any reasonable suggestion on your part.  It may even help them to gain new insights into their own work!!

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