Copyright Law and Its Place for Christians and in the Theatre

Many websites can be found on the internet dealing with copyright laws (not the least of which is http://lcweb.loc.gov/copyright/ the US Copyright Office).  There are also some that deal with Copyright and its place  in the theatre (one of the best I've found being http://lecatr.people.wm.edu/copy.htm where some of the information on this page comes from...yes, with permission of the owner).  However, when it comes to Christians, we can often times be one of the worst groups for violating copyright laws in any situation.  However, I don't believe, through my own experiences with others, that the violations are intentional but rather out of ignorance.  So, abiding by the saying that ignorance of the law is no excuse, I give you this primer on the copyright laws and how it pertains to Christians and, specifically, Christians in the arts.

First of all, the final straw that made me create this page.  As I was talking with another theatre professional about a script that we had been handed which had been discovered in a dusty stack, the other professional stated that he was sure that the script was old enough and that the publisher was out of business enough that it could be freely duplicated and presented.  The fact of the matter is that the script was published in the mid-1960s.  So, according to current copyright laws, even should the author have died immediately upon publication, the script would still be protected from duplication and presentation until at least 2030 (if it was published in 1960).   In other situations, I have seen theatres take a well-known musical and, with seemingly reckless abandon, change the lines, songs, or other parts of the script so that it would better suit their cast or situation.  Again, I don't think their actions were deliberately aimed at infringing on the author's copyrights but, through their ignorance of the law, they did overstep what is allowed under the copyright laws.

So, to that end, what is copyright and what can be copyrighted?

       Copyright is protection provided by the laws of the United States (title 17, U.S. Code), granting authors and other artists the exclusive privilege to control reproduction, distribution, performance, or displays of their creative works.  Part of a larger legal family known as intellectual property that also includes siblings trademark and patent law, copyright safeguards creators of "original works of authorship" such as dramatic, musical, artistic, and certain other intellectual work.

A number of creative works are eligible for copyright.  Certain requirements must be met first:  The work must be tangible, fixed in some form.  The copyright office divides such works into eight basic categories:  1) literary works; 2) musical works, including any accompanying words; 3) dramatic works, including any accompanying music; 4) pantomimes and choreographic works; 5) pictorial, graphic and sculptural works; 6) motion pictures and other audiovisual works; 7) sound recordings; and 8) architectural works.

What cannot be copyrighted?

Some things are not considered covered under the copyright laws.  Some of those categories are listed below:

• A title cannot be copyrighted because it is not, in itself, a "work".  So you could write a play and call it Death of a Salesman if you wanted to and be perfectly legal under the copyright laws.  However, some things may be covered under other laws of intellectual property depending on who created them and how they are treated.

• Facts, such as news or histories, are not considered creative but are public information.

• Governmental materials are also non-creative and public information.

• Ideas are not copyrighted because they don't physically exist.

• Names cannot be copyrighted.  However, trademark laws do govern names like Kleenex and McDonalds.

• Characters are not protected by copyright laws.  However, as with names, some may be covered by trademark laws.

What is the duration of the copyright laws?

As it relates to a play script, or any other copyright-able work, copyright protection begins immediately (even the copyright offices puts that in bold type) and lasts for the artists life plus 70 years.  If a work is created by multiple artists, the copyright protection extends until 70 years after the last participating artist dies.  For anonymous or pseudonymous works and works made for hire (usually, a work created by an employee unless other arrangements are made) lasts for 95 years from the first publication, or 120 years from the year of creation, whichever expires FIRST.  While this is a very simplified version of the copyright duration, a more elaborate table outlining exactly how long copyright lasts for items produced in various years is available at /www.unc.edu/~unclng/public-d.htm.  

Notice the protection begins immediately once the work has been created.  It is not necessary for an author to register the work with the copyright office in order for that work to be copyrighted.  As the copyright office says, "In general, registration is voluntary.  Copyright exists from the moment the work is created.  You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work."

What does it mean if a work is copyrighted?

If you are considering performing a copyrighted work you must first determine if it is available for performance.  Usually you can find that information by contacting the publisher or, if possible, the author.  Once you've found out whether the play or musical is available, you should also determine if a royalty is required for performance.  Many plays available require a modest royalty to be paid before a performance can be made.  The royalty is how the playwright makes his or her living.  Some would consider it Research and Development money toward the creation of more creative works from that playwright. The rates vary but usually are between $15 for a one act and $100 for a full-length play per performance.  Musicals are more and usually also include a script and music rental fee.  If you don't want to pay the royalty fees and purchase the required number of scripts, DO NOT PERFORM THE WORK.  Penalties for breaking copyright laws can be stiff.  More on that later.  Once you have contracted to perform the work, don't change the script at all unless arrangements have been made IN WRITING with the author or representative.  The script, as published, is exactly what the author had in mind.  Changing the script, even one word, is an infringement of the author's copyrights.  Sometimes, if approached, the author will allow changes to be made but don't count on it.  If you can't use the script as-is, try contacting the author or agent.  However, make sure you try contacting them plenty early as the process can sometimes take quite some time.  Also, make sure you have a back-up plan for if the author denies your request (perfectly within their rights).

What is the penalty for infringement?

With the copyright laws being given such prominent place in the constitution,

Article I, Section 8

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

it is not surprising that the penalties are also stiff.  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.  Note:  Most licensing agreements define any unauthorized changes as "willful" infringements.  

Also, a large number of people could be charged for a single violation of copyright.  The Federal Copyright Act extends "joint and several" liability for each infringement.  Each individual involved could be held responsible for the whole amount of the fine--director, individual members of the production staff, each member of the cast and crew (or their legal guardians), the producing organization, the owner of the building in which the performances take place, and in the case of public schools, the school board or district.

Common Misconceptions

If we don't charge admission, we don't have to get permission or pay a royalty.

WRONG.  If you have an audience, you have a performance.  If you have a performance, you have to pay a royalty.

It was part of a class exercise.

Possibly valid--Only if NO ONE but the CLASS was present.  As soon as an audience is present, it is no longer an "educational experience".  Permission is required.

No one will ever know if we do it without permission.

WRONG.  This is first a defensive statement based on admitted guilt.  Secondly, it's not true.  Publishers and agents go to great lengths to ensure that their works are not performed without permission.  These lengths include subscribing to clipping services that focus on finding every mention of plays in newspapers and magazines.

A great site titled 10 Big Myths about copyright explained (which actually has 11 myths now) goes into detail about these and other misconceptions.  You can find this site at www.templetons.com/brad/copymyths.html.

In conclusion

I have just touched the surface of the copyright issue.  As I said in the introduction, most people who I know that have broken the copyright have done so out of ignorance rather than deliberate breaking of the law.  However, ignorance of the law will not get you out of the penalties for breaking those laws.  The website above (http://lecatr.people.wm.edu/copy.htm) has many more links for information about copyright laws.  It also goes much more in depth as to what is actually covered, in a production situation, by the copyright laws.  The author of that site specifically stated to me that he is not a copyright lawyer.  However, he has done his homework and spoken with law professionals and others involved in copyright law.  Nearly every major play publishing organization will include a copyright notice on their website, in their catalog and in every copy of their scripts.  Check it out.  And remember, IT'S THE LAW!