O! Leanna | Susan Hall · IP/ICT Lawyer

O! Leanna

Mosaic Depicting Theatrical Masks of Tragedy and Comedy

A lot of ink has been spilt recently over the revival of some WIPO proposals relating to Traditional Cultural Expressions (or TCEs). These proposals are at a very preliminary stage, with major divergences between different countries and groupings over core principles. There appear to be at least three developing strands of thought concerning each of what is to be protected, how it is to be protected, and who benefits from that protection, with entrenched positions developing in each area, split largely down lines of national interest or the interests of groupings such as the EU.

In a much-quoted piece, James Anaya, dean of law at the University of Colorado, asked that WIPO

"obligate states to create effective criminal and civil enforcement procedures to recognize and prevent the non-consensual taking and illegitimate possession, sale and export of traditional cultural expressions."

As Anaya almost certainly knows, enforceable TCEs coming to a jurisdiction near you are not likely to happen any time soon. To create new intellectual property or related rights through WIPO, the required progression is:
agreed position -> draft treaty -> finalised treaty -> signature of treaty by requisite number of countries -> ratification of treaty by requisite number of countries -> enactment of treaty provisions into local law.

Not only is there no agreed position on the table, the philosophical divides between different countries and groups on core principles make achieving one an almost insuperable task.

However, this has not stopped commentators from spinning excitable fantasies beginning, "First, they came for the sombreros --" or magazines from proclaiming that "At last, something is being done about cultural appropriation" without defining what they mean by the phrase, which does not appear in any of the competing formulations of the discussion draft.

Meanwhile, a rather more immediate threat to personal liberty via misuse of IPR has been almost overlooked in the mainstream press, possibly because it does not lend itself to being illustrated with pictures of warbonnets.

David Mamet's play Oleanna is the centre of a debate about the degree to which an author can leverage his copyright in a play to control debate and discussion around the performance. Mamet recently prevented a small theatre in a Detroit suburb from holding a post-play "talk-back" between cast and audience on penalty of a $25,000 "fine". Furthermore, Mamet's representatives have said a similar clause will be included in all future licences for performance of Oleanna.

The ban on discussion covers the period of up to two hours after the production. It sounds like the set-up for a Charles Paris mystery: enraged theatre bar manager tracks down and kills playwright who endangers his livelihood by imposing restrictions on post-play discusssions.

Oleanna, for those who have not seen it, is a two-hander between a professor, John, and his student, Carol. The relationship starts badly and then plummets. For one thing, John has the annoying habit of taking long, involved and expletive-laden calls about the progress of his house purchase during pastoral care meetings with struggling students and making it clear (to them and to the audience) that he's a lot more interested in his easement issues than in their exams.

John and his wife are moving into a large new house on the strength of his having been absolutely promised tenure, its being a foregone conclusion in all but the actual signature on the document. He explains this to Carol, at length, including recounting the humiliation of his having to grovel before the Tenure Committee who, as per John, "had people voting on me I wouldn't employ to wax my car."

Not, one might think, a wise statement to make in front of someone he does not know well (or, as appears in the second act, at all.)

Depending on how it's directed, the play is either about the shifting balance of power in a relationship where a person who thinks he holds all the cards makes a succession of fatal misjudgements by underestimating or simply ignoring the other party, or a searing expose of the threat to free speech on campus by legions of militant feminists who brainwash their minions into making false rape accusations and otherwise brutally mistreating well-meaning male professors.

That is, it's a "problem" play and without the arguments afterwards there's little point in going to see it. Once, in the early 90s, at the Royal Court, was quite enough for me. The text I have was given out in lieu of a programme at that performance, which suggests those behind that particular production expected there to be discussion about the play and wanted to ensure it was well-informed.

Furthermore, the draconian restrictions of post-play discussion suggests that Mamet does not think there are two possible interpretations of the play's theme. Which, in turn, suggests the play in Mamet's head is less interesting than the play in Mamet's words.

Can Mamet legally impose the restriction in question upon theatre companies ?

Almost certainly, yes. Oleanna is his copyright work, and its performance cannot proceed without the authorisation of the copyright holder. Copyright does not seek to limit the restrictions a licensor may include as a condition for granting a licence.

A number of playwrights or their estates have notoriously exercised considerable control over productions, including the Albee estate recently causing controversy by refusing to countenance the casting of an African-American as Nick in Who's Afraid of Virginia Woolf? Mamet, also, has refused permission for performances where Carol is played by a man, or where an all-female cast of Glengarry Glen Ross wanted to change the pronouns used in the text.

The above examples, while going against current trends towards increased diversity in casting and staging, do at least relate directly to the text. Controlling off-stage issues, including audience discussion of the message a play intends to convey, goes a great deal further.

In isolation, authors cannot stop "fair dealing" with their works for the purpose of "criticism or review" even under the more restrictive UK legal system, let aone the broader US "fair use" system. However, restricting criticism, review or discussion as a quid pro quo for performing the play in the first place is a matter of contract, not copyright, and, in general and subject to specific exceptions such as anti-competition laws, both systems give high priority to freedom of contract.

Although competition law has in the past had things to say about "tie-ins", those have usually been confined to cases where intellectual property rights allow the holder to exercise a dominant position on the relevant market and abuse it to create dominance in a secondary market, such as in the Tetrapak case in which a maker of proprietary packaging machinery was fined for requiring customers of the machinery to use only its packaging materials (unpatented) to run it.

Perhaps a better legal argument may be drawn from common law restraint of trade cases, in which post termination restrictions on dealing, for example, are struck down unless the person putting them forward can show that they have a legitimate interest to protect and the length and scope of the restrictions is no more than necessary to protect that legitimate interest.

Theatre companies often include "talk-backs" or other events including the cast, especially aimed at corporate sponsors or as part of an added value package. Given the often precarious nature of theatrical finances, the inability to put on such events may markedly affect the viability of a show. Furthermore, where not-for-profit theatre companies have an educational mission as part of their objectives, audience engagement may be a core deliverable.

It is hardly likely that the theatre companies most at risk from such restrictions could afford to fund a test case. Nevertheless, it seems high time someone addresses the limits on the leverage playwrights can exert over ancillary events associated with performance of their works.

If Oleanna has a wider message other than a generalised mistrust of feminism, it is about the chilling effects on freedom of speech caused by extra-judicial pressure being brought to bear on the university by Carol's unspecified "group". Things happen to John which he can neither control nor influence, and, arguably, his voice is silenced on campus and a new, creeping orthodoxy claims another victim.

If this was seen as prophetic back in 1993, the world has moved on. Numerous bungled sexual harassment or assault cases have rendered the idea of a woman destroying a man's career by simply reporting a slanted version of a conversation which might bear a sexual interpretation even more implausible than it sounded when the play was new. As indicated above, a more convincing tactic on Carol's part might have been to share John's snobbish aside about car-waxing with the secretary to the Tenure Committee. Furthermore, both tenure and the purchase of large freehold properties on academic salaries are reminiscent of a lost Golden Age.

Even a talk-back attempting to place the play in its historical context, though, would fall foul of the Mamet restriction. It seems deeply retrogressive that a play about creeping orthodoxy and chilling effects of non-governmental restrictions on freedom of speech should be preserved in aspic by the actions of its author, simply from fear of the direction the audience's thoughts might go.

The main image used for this article is: 'Mosaic Depicting Theatrical Masks of Tragedy and Comedy' and was used under the terms detailed at the above link on the date this article was first published.

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