By JANE WESSEL
Review of Performing Copyright: Law, Theatre and Authorship, by Luke McDonagh
London: Hart Publishing, 2021
In 1832, the UK Parliament convened a Select Committee “to inquire into the State of the Laws affecting Dramatic Literature.” For twelve days in June and July, a committee of 24 members of Parliament interviewed 39 witnesses about the day-to-day workings of the theatres. These witnesses included dramatists, managers, actors, and members of the Lord Chamberlain’s office. They responded to questions about the history of the theatrical patent system dating back to the Restoration period; the penalties for performing without a license; authorial remuneration; and how copyright laws affected theatres’ ability to perform new plays. Crucially, the Select Committee hearings provided lawmakers with an opportunity to understand actual theatrical practice through the testimony of practitioners as they considered how to revise the laws relating to theatrical regulation and copyright. By revising these laws, they aimed to better support the production of new, quality drama. The formation of this Select Committee was a recognition that the realities of theatrical practice, and the experiences of managers, dramatists, and actors ought to help shape the law.
This same recognition is at the heart of Luke McDonagh’s Performing Copyright: Law, Theatre and Authorship. Just as the Select Committee hearings made theatrical practice more visible to nineteenth-century lawmakers, McDonagh’s book highlights the experiences of theatre practitioners for a readership of copyright lawyers in the twenty-first century. He does this through an empirical study based on twenty interviews “featuring a representative sample of participants in the UK theatre community—actors, playwrights, directors and other participants” (9). Through an interdisciplinary approach that draws not only from law, but also literary studies, theatre history, performance studies, and his interviews with practitioners, McDonagh aims to put theatre and law in more direct conversation with each other, showing how the law shapes theatrical practice, how literary theory shapes legal decisions, and how theatrical practice might push legal scholars to think in new ways. It is these various audiences and their potential interactions with McDonagh’s book that I find most compelling.
McDonagh describes his book as “the first academic monograph that focuses solely on the relationship between UK copyright law and historical and contemporary theatre” (2). It begins with a historical overview chapter spanning 1558 to 1911 before moving to today’s copyright law, with chapters focused on the collaborative nature of dramatic authorship; the tendency of drama to build on prior work; and the moral rights of attribution and integrity. Pointing to some of the fundamental differences between drama and other literary genres, McDonagh raises important questions about how the author and work are defined in performance contexts, as well as how this affects copyright protection.
Following the introduction, chapter 2, “‘The Play's The Thing …’ But What's the Play? And Who Owns It?”, provides a historical overview with two aims: “to contribute a novel account of the emergence of the author-figure as owner of the dramatic work under UK copyright law” (19) and to lay the groundwork for the book’s “exploration of the modern law of copyright in the chapters that follow” (20). While I am not convinced that the chapter offers a novel account (it surveys work that has already been done in this regard, evidenced by the ample citations in the footnotes), it is certainly successful in terms of laying groundwork. In particular, McDonagh’s historical overview emphasizes two threads that set up his investigation of modern copyright law later in the book.
First, dramatic authorship is necessarily collaborative. His discussion of the early modern theatres makes this especially visible. The Romantic image of the solitary author that remains dominant today is not a reflection of reality, he argues, but rather an effect (in part) of copyright law, which developed in a way that favored singular authorship. By historicizing dramatic authorship, McDonagh sets the stage for his later chapters that push back against the idea of the writer as originator and sole owner.
Second, McDonagh’s historical overview emphasizes that throughout the period under discussion, theatrical norms often stood in for law. He points to early modern theatres agreeing not to perform one another’s works and, in the eighteenth century, the three patent managers agreeing not to stage R.B. Sheridan’s popular The School for Scandal. Here, I think it is worth mentioning the limits of McDonagh’s overview. While he is not wrong to note that the performance of The School for Scandal was dictated by theatrical norms rather than legal rights, it is strange to make the point through reference to a single play. In doing so, he perhaps inadvertently echoes outdated views that Sheridan and Oliver Goldsmith are the only significant dramatists of this period. While chapter 2 necessarily oversimplifies certain historical circumstances, it is on the whole a useful overview of the development of proprietary authorship within the theatres, particularly for non-historian readers. The chapter helps such readers understand “how plays came to be protected as works—property objects encompassing a bundle of rights to eg copy, publish, perform, adapt, etc.” (21).
Chapter 3, “Copyright Law and Performing Authorship in Theatre—Exploring the Contrasting Roles of the Playwright, Director and Performers,” moves the reader forward to the present day, grappling with a central problem of theatre and copyright: “theatre [is] a field that encourages joint labour to be realized in the form of a collaborative product (the dramatic work), and yet which fails to recognize the authorial nature of those collaborative contributions” (113). From the early modern period through to today, this is a truth of theatre. Dramatic authorship is inherently dispersed. How does copyright law account for this? McDonagh argues that the law tends to privilege an individual author, not least because this makes rewarding copyright much easier. But this tendency extends backwards to the earliest copyright laws, which envisioned the “copyright work” initially in purely print-based terms. Even after performance rights were granted, the law still fundamentally imagined the copyright work as text. Historically, then, the law has privileged the “writer” over other contributors including actors and directors, who often contribute content or change the text through workshopping processes. McDonagh recognizes this problematic fact about the law, and he ends with a provocation: “even if it can make licensing of rights more complex, the argument that credit and ownership should be shared proportionately based on what each contributor has added to the work remains compelling” (116).
The types of evidence McDonagh uses in the chapters focused on the present day include legal cases, theory, and his interviews. Like much legal scholarship, McDonagh frequently turns to specific cases. By examining cases such as Brighton v. Jones (2004) and Kogan v. Martin (2019) in chapter 3, for example, he emphasizes two key arguments: first, that the playwright tends to win cases involving authorship disputes, and second, that for joint authorship to be recognized, there must be a “common design” to collaborate. The “nature of the interaction” (86) matters: after-the-fact revisions or changes to the text inspired by actor improvisation lend less credibility to claims of joint authorship.
After providing an overview of cases involving joint authorship disputes in chapter 3, McDonagh moves into his empirical research, which is one of the most significant contributions of his work. Here he turns to evidence gathered from interviews with twenty theatre practitioners. He identifies the interviewees solely by their professional roles rather than by name, and when referencing them in the text, he often frames his findings with phrases like “one actor told me” or “interviewees were broadly in agreement that.” The breadth of his interviewees is important, as he surveys the viewpoints of actors, dramaturges, directors, playwrights, and figures who have served in multiple capacities. He uses his findings to give readers a sense of what the theatrical workshopping process looks like, how different figures contribute to the development of a dramatic text, and how they envision their “ownership” of the text. The result is a fascinating picture not only of how joint authorship works in practice today, but also how figures who have historically not been rewarded as authors by the law feel about attribution and copyright.
While McDonagh’s interviews act as a backbone in chapter 3, providing a rich picture of the workshop process and joint authorship, they are not used to the same extent in chapter 4—a chapter with a fascinating premise, but which falls a bit flat in comparison to the others. This chapter, “When Does Copyright Infringement Occur on ‘The Haunted Stage?’”, tackles the question of how copyright law deals with non-literal elements of a dramatic work, or, put another way, “the idea of protection beyond the work’s formal, textual boundaries” (121). The chapter title quotes Marvin Carlson’s The Haunted Stage: The Theatre as Memory Machine; Carlson’s argument that theatre is prone to recycling acts as a premise for the chapter. As McDonagh writes, “theatre is a medium that builds upon prior existing works, tropes, themes and quotations” (117). This tendency to build on prior work raises questions of how much or little of a work needs to be copied for infringement to occur. As McDonagh rightly notes, the frequent reuse of non-textual elements of drama has the potential to complicate copyright disputes.
This is a difficult topic to tackle, though, because as McDonagh writes, cases involving non-literal elements of a play rarely go to trial and are instead sometimes handled through community norms. At the end of the chapter, he writes that “despite the lack of case law on point, it is interesting to ponder how the fair dealing defences of parody and quotation might work in the theatrical context” (147). And this is essentially what McDonagh has done: ponder how UK copyright laws of fair dealing (in US law, fair use) would apply to the theatres. As a result, the chapter often seems quite general: it is not firmly grounded in case law or even his interviews and is often as much about creative works more generally as about theatre.
For instance, he examines UK copyright law’s idea of “substantial part,” thinking through quantitative versus qualitative evaluations of what makes something “substantial.” He considers the idea/expression dichotomy as a way of considering reuse and borrowing, arguing that ideas (better called “stylistic conventions” in the theatres, he writes) such as stock characters are not specific enough to warrant litigation. And he considers fair dealing laws, especially for quotation and parody. But his investigation of these topics is not firmly grounded in the theatres. The lack of cases is unavoidable, but it does seem like a missed opportunity to lean more heavily on his interviews. What do practitioners have to say about what they consider fair to reuse and how they consciously recycle sets, sounds, and performers to gesture to earlier performances and create a ghosting effect? How do views on such reuse differ among the playwrights, directors, and actors?
A second issue is that while the chapter invokes Carlson’s “haunted stage,” it does little to engage with his argument on a theoretical level. Carlson’s theory of ghosting is fundamentally about memory: audience memory of an actor’s previous roles or knowledge about an actor’s public persona, for example, “haunts” their experience of the current performance. Ghosting occurs not just because material is recycled, but because the audience member recognizes or remembers something from an earlier production. McDonagh does not dig into the roles of audience and memory, and as a reader, I was left wanting more engagement with how the audience factors into questions of copyright. Is a copyright work’s value diminished by the conscious recycling of an aural element in a later production, or might that recycling be considered transformative? Is audience response ever a factor in determining this? For a chapter grounded less in concrete examples and more in theoretical questions about the law, there is a real opportunity here to play out the implications of Carlson’s arguments.
The final chapter, “Copyright’s Role in Enforcing Credit and Control in Theatre,” focuses on the moral rights of attribution and integrity. These rights, which ensure that the author’s name is associated with their work and allow the author to object if their work is used in a way that is derogatory or distorted, remain with the author even after economic rights have been transferred. As in the previous chapter, McDonagh runs up against a lack of UK case law involving these rights—the integrity right in particular. Yet the chapter is nevertheless rich in examples, as he discusses cases from other countries and his interviews.
One such example involves an all-female production of Samuel Beckett’s Waiting for Godot in France, which the Beckett estate used the integrity right to prevent. Although there are no specific UK integrity rights cases involving dramatic works, and McDonagh argues that the right is weak in practice, it is fascinating to think about the right in relation to drama. This is because, as McDonagh points out, the dramatist needs collaborators in order for their work to come into being, and power struggles over interpretation can often occur between these collaborators. Theatrical practice reveals that it may be necessary for the law to reconceptualize the idea of originality:
Copyright protects originality on the basis of the author’s intellectual creativity. It seems important in the theatrical context that this notion of originality is interpreted broadly [to] encompass not only the author’s intended meaning, protected via the integrity right, but also the author’s “unintended meanings”—the aspects of the text that other parties may choose to reinterpret, and perhaps even subvert, via performance. (179)
McDonagh’s brief conclusion largely reiterates the key ideas of the book. But in the final paragraphs, he makes a few recommendations for how the law might better reflect and support theatrical practice. He urges courts to “maintain conceptual openness when it comes to joint authorship” (187), though he realizes that because legal recourse is often not an option financially for practitioners, this is not enough. He suggests making the law more accessible “to aid in anticipating problems and disputes that may arise, particularly over the vexed issues of joint authorship/ownership and the integrity right” (188). Reconceptualizing the relationship between authorship, ownership, and the integrity right is essential, for as he argues, “the social practices of theatre are a reminder that there are types of ‘ownership’ that do not necessarily imply property in the legal sense” (188). In other words, the integrity right is about the struggle between multiple parties to assert creative ownership over a production, rather than ownership in an economic sense.
In these final paragraphs, as McDonagh focuses on how the legal sphere, theatre practitioners, and literary theorists might shape one another’s practice, the question of whom the book is intended for resurfaces. McDonagh suggests three potential audiences: copyright lawyers, theatre practitioners, and scholars from fields including theatre, performance studies, and literary studies. I come to the book as the latter: a theatre historian and literary scholar, working on the history of performance rights in the eighteenth-century theatres. From that position, I found myself reading the historical overview chapter critically, and appreciating McDonagh’s “caution” that “the narrative sweep of this chapter covers a large amount of material, spanning more than four centuries” (19). Yet while there were undoubtedly and necessarily oversimplifications of the history, I was not the audience that needed that chapter. Instead, I found myself fascinated by discussion of copyright law in the theatres today—both through case law and the testimony from playwrights, directors, and actors about how they understand their authorial roles and how they conceptualize ownership. I was constantly making connections between the present moment and what I know about the eighteenth century, often marveling at how much remains the same.
If, as a theatre historian, I was traversing familiar territory in chapter 2 and learning more from the following chapters, McDonagh’s other audiences will likely have very different interactions with the book. Throughout his writing, McDonagh invokes a community of lawyers of which he is a part: “we as copyright lawyers” (66); “we lawyers” (180); “we as lawyers” (187). This language has the potential to exclude the other readers he hopes to reach. Yet it also functions as a summons, calling on copyright lawyers to approach cases with a “conceptual openness when it comes to joint authorship” (187) and to take seriously the “social practices of theatre” (188). Copyright law currently privileges solitary authorship—a tendency that undermines the extent to which new plays are developed through workshops that involve not only the playwright, but also the director and actors. For an audience of lawyers, chapter 2 historicizes authorship, offering an alternative to the Romantic solitary author; McDonagh builds on this through his interviews to show the authorial or ownership claims figures beyond the playwright might make. This book teaches legal scholars about theatrical practice as a way to shape their thinking about copyright law, particularly in terms of questions surrounding collaborative authorship, “originality,” and the instability of the copyright “work.”
Although McDonagh periodically invokes a “we” of copyright lawyers, in the final paragraph, he expresses his hope that the book can have a wider impact: “I hope that theatre practitioners and scholars engage with this book; I hope that it provokes a response” (188-89). He calls on practitioners to challenge legal constructs, suggesting that theatre can be a tool of resistance, while law is too often “the tool of the powerful” (189). Practitioners can and ought to push back against legal constructs that limit ideas about authorship and ownership.
If read by all three audiences, this book has the potential to do something: to provoke change. Perhaps its greatest strength is in putting lawyers, practitioners, and scholars in conversation with each other through his multiple methodologies and sources of evidence. Let’s hope—as McDonagh does—that those conversations extend beyond the confines of this book.
Posted on 20 January 2021
JANE WESSEL is an Assistant Professor of English at the US Naval Academy. Her book Owning Performance | Performing Ownership: Literary Property and the Eighteenth-Century British Stage is forthcoming from the University of Michigan Press.
