All original material Copyright © 1999-2008 Kevin N. Scott
Copyright for the High School/Amateur Theater Producer
 

Getting caught

Here is the most dangerous myth of all concerning copyright: “They’ll never know what I do in my little high school in the middle of nowhere and, besides, even if the publisher/licensing agency finds out, they never go after high school and community theatres anyway.” It is more accurate to say that you rarely hear about licensing agencies or music publishers going after high school theatres. It is not good public relations for either the publisher or the high school to advertise the fact that it has happened, but the licensing agencies and the music publishers have a fiduciary responsibility to the authors and composers they represent to not allow the rights of those authors and composers to be infringed by anyone at any level of production. If they find out about an infringement, they are bound to pursue it.

    How are they likely to find out? There are probably more ways than can be counted, but here are a few examples:

   •   In the Oregon case I cited earlier, the licensing agency’s first inkling of the drama teacher’s intentions came when a clipping of a newspaper article found its way to the agency’s legal department after the show had closed. As it turns out, this is much worse than if it had arrived there before the show opened. Then the agency would have simply issued a “cease-and-desist” letter, and the show would have been canceled. The school probably would have forfeited the royalties, but not have incurred damages for infringement. A major claim for such damages was what the drama director and his school district now found facing them. The case, as far as I know, was settled privately. Subsequent to publication, I learned that the district paid an undisclosed sum in the four figures, and the school was banned from producing any show in the licensing agency's catalog for the following five years. The teacher moved on, to a position in educational administration at the state level.

   •   In another Oregon case, a conservative parent attended an adjudicated competition that included cuts from Rent, Chicago, and West Side Story. The parent found several selections objectionable, one so much so that he tried to have the drama director arrested for child abuse for allowing/encouraging the students to participate. (This came to nothing because the students involved were over eighteen.) The incident provoked a very public debate over content and community standards. As it turned out, several of the selections identified in the newspaper reportage of the incident and its aftermath were being performed without the permission or knowledge of the appropriate licensing agencies.

   •   A student in Southern California, enthused with his school’s recent production of Man of La Mancha, created a personal web page that included sound files ripped off from the original cast recording and promoted it on musicals.net, an internet site that includes resources, links, and a forum for those interested in musical theatre. Compounding what was already a copyright infringement, he included photos of the production that clearly showed that several roles written as male were being played by female performers.

   •   In numerous other instances on musicals.net, I noted several student posts about “how we did it in our production”: Arvide Abernathy in Guys and Dolls becoming Agatha, Pawnee Bill in Annie Get Your Gun becoming Pawnee Jill, replacing “My White Knight” in The Music Man with “Being in Love,” and restoring the duet for Tommy Djilas and Zaneeta Shinn the director found on the Lost in Boston album. One student summed it up this way: “We just cut that stupid song — we followed the movie instead of the stupid script they sent us.”

    The point of all these examples is to emphasize that you never know who is sitting in the audience, or reading an unintentionally revealing account of your production. So, if you do violate copyright, what is the worst that can happen? Federal copyright law establishes statutory fines for each act of copyright infringement, ranging from a minimum of $500 for “innocent” infringement to a maximum of $100,000 for “willful” infringement. (This is why it is important to know that most licensing agreements define any unauthorized changes as “willful” infringements.) The Federal Copyright Act extends “joint and several” liability for each infringement (meaning each individual could be held responsible for the whole amount) to: the members of the production staff, the student cast and crew (or their legal guardians), the school (acting as producer), and the owner of the building in which the performances take place (often the school board or district) and copyright law does not allow any of these potentially liable parties to contractually indemnify any of the others.

    As I mentioned at the outset of this article, unlike most amateur producers, the licensing agencies can afford to hire highly expert attorneys, who daily work exclusively in this area of expertise. Courts tend to look unkindly at the misappropriation of the intellectual property rights of others and upon those who commit themselves to a contract without full knowledge of its terms. If you try to defend such a case in court, you are most likely going to lose, and to have to pay the statutory fine. This is why most of these cases never come to court. A private, confidential settlement is made, to the advantage of the side that would almost certainly prevail if the case did come to court. No one not directly involved in the case ever hears about it, preserving the reputation of both the school and the publisher/licensing agency. The school district somehow swallows paying for a drama director’s costly mistake (and remembers it well when budget time rolls round), and the myths continue to live. I hope that what I’ve explained here will help extinguish at least some of that mythology and maybe save you, your school, and, most of all, your students, the embarrassment and expense of a copyright infringement.

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