With original writing, directors will often tell you that the final draft of a new play is just the starting point for a show - not the final word. It is merely the beginnings before a larger collaborative process which will bring the production to stage. A line was distinctly drawn in 2004 which shook the performing arts industry to its very foundations. Author Marie Jones won sole copyright ownership of the play Stones in His Pockets after a court ruled that the show's original director, who contributed measurable additions to the script, had no claim as co-author.
The outcome of the Stones in His Pockets case has ramifications upon the future and functionality of the creative process within theatre industry. Bringing to the fore the potency of the Theatrical Management Association Agreement, the case has attracted attention for its redefinition of the rights of the author and application of creativity within the workplace of theatre. The contract is seen to empower the role of the playwright; it legally distinguishes script ownership between writers and other creative personnel and asserts that the writing on the page is the property of the author alone:
Any changes of any kind whatsoever in the text, stage business, or title of the Play made by anyone and approved by the Writer shall be deemed to be a part of the Play and shall accrue to the copyright of the Play and become the sole property of the Writer.
(TMA Agreement, 1993, p.9)
This crucial extract from the TMA Agreement clearly outlines the authority the writer has in crafting the script. If suggestions are made to the writer and they are subsequently ‘approved’ in the author’s drafting process, then such elements become part of the work and the ‘property’ of the writer. There is no distinguishing role between writer, actor, musician or stagehand; any changes ‘by anyone’ are the property of the author once he/she has written the play. The notion is simple and, perhaps, too clear cut for a creative environment.
The wider concern does not reside with the facts of the contract, but with the public awakening brought about by the ‘Stones in His Pockets’ case. Director Pam Brighton claimed ignorance as part of her argument for a claim of co-authorship, suggesting she was not familiar with the terms of the TMA Agreement or even its existence (Paris, Christy, 2004). In the wake of that ambiguity and the attention that this case has drawn, the TMA Agreement will probably attract many directors and actors within the industry towards its pages. It is a paper contract which redefines the role of author beyond that of a transcriber of ideas to the heightened position of sole creator and owner of a play, absolute. Furthermore, it uprates the power of the author in the legal standpoint, shifting aside centuries of theatrical traditions and working relations into a new world of lawful ownership and copyright protection. Such a legal intrusion and awareness of ownership with the workshop environment of the theatre will undoubtedly affect the individual creative contributions directors and actors make to new plays in the future.
As part of Brighton’s argument for co-authorship of Marie Jones’ script, she cited script contributions via workshop processes and the presentation of a draft opening to the play, some of which writer Marie Jones did not utilize until a 1999 rewrite. When the play began commercial success in the West End, Brighton sought a 50% claim of Jones’ earnings as a joint author. (Paris and Christy, 2004) The case not only opens up the ethical debate of authorship of plays, but also queries the role and function of the ‘writer’ within the industry of modern theatre. Before embarking on the validity of Brighton’s authorship claims, it is perhaps prudent to study what defines an author within this working environment, as the impact of Brighton’s case brings to contention the functional role, position and moral scruples of the profession. When Foucault asks, ‘What is an Author?’ (Foucault, 1977), Mark Rose answers:
…He is a proprietor, the originator and first owner of a special kind of commodity, the ‘work’. And the principal institutional embodiment of the author-work relation is copyright, which not only makes possible the profitable publishing of books, but also, by endowing it with legal reality, products and affirms the very identity of the author as author.’
(Rose, 1994, p.27)
Rose argues that the body of work ‘affirms the very identity’ of the author, legitimizing the involvement and creative input of individuals with their texts, specifically recognizing the role and contribution beyond the level obsessed with fees and shares. As director, Brighton had an assertion of creative input, not control, over the original script. Her desire for joint authorship may be routed far deeper than a simple 50% share of Jones’ fee, as the play won two Olivier awards in 2000 and was a ‘huge critical’ as well as commercial success. (Paris and Christy, 2004) A recognition of involvement in the creative process can exceed more than the financial gain. After Oscar Wilde’s incarceration, he was allegedly deflated further by the loss of copyright over his numerous plays:
…He appears to prize them as something more than a means of securing profits – as an authorial birthright, as the property form the writer most properly and inalienably owned and whose forfeit most wounded the writerly soul.
(Saint-Amour, 2003, p.91)
It is comparable to a divorce, an imposed rift between writer and play, an insult firmly routed in the separation from his creations. To have copyright ownership, is to distinguish the level of involvement with the work as a measure of creativity and input. In the wake of the ‘Stones in His Pockets’ success in the West End, with material submitted by Brighton, it is understandable for her contribution to be, at least, credited. The moral argument of a parental ownership of the script in this particular case is not entirely solid, however, when consideration is given to the fact that Brighton did not begin proceedings for co-authorship until nearly six years after the original script was completed. (Paris and Christy, 2004) The case also coincides with the period when the play was a great financial success. Outside of claims for a share of the profits, the claim appears to have little integrity in its argument for creative credit to redeem the ‘writerly soul’ of the director. In summary, it is unlikely that Brighton was attempting to redefine herself with the ‘author’ title associated with a successful play, simply for the artistic integrity.
Arguably, the author is responsible for the delivery of the final script and the standard of content, despite external influence and prior to realization and presentation on the stage or screen. Marjut Salokannel argues that an author has rights over the script, yet also a level of responsibility in how the contributions from external sources are utilized:
From the basics of ‘author’s rights’, we see that creativity as such is insufficient to raise an individual to the status of author. Rather, since author’s rights protect the form and not the content of the work, it is necessary to show that an author is not only creative, but also responsible for the ultimate form that the work takes.
(Salokannel, 1994, p.71)
Here the suggestion is that it is an explicit creative dynamic which inspires the writer to function successfully and essentially complete the script, yet it is a method which fails to invite the creative pool and inspirers to join or share the title, ‘status’ or presumably fees, which the writer is rewarded with once their work is complete. For Salokannel, creativity is not the act of writing; it is mealy a constituent part which drives the scripting process towards the central goal of a completing a usable script. The writer has a responsibly beyond creativity; an obligation to utilize creativity in a practical way which can be artistically exploited. The ‘responsibility’ in Salokannel’s view is not the moral assimilation of ideas, but the responsibility to deliver the best script because that is what the position of ‘author’ demands.
Rose suggests that writers should, are, and have always been at liberty to write what they wish from any inspired or suggested source:
Liberty and property: the freedom of the individual to employ his [sic] efforts to create property and the freedom to dispose of that property as he [sic] saw fit. These were the principles inscribed by reason in the very order of nature. How could they be denied in the case of the author?
(Rose, 1994, p.33.)
Rose’s ideal is an overriding assumption that all ideas are viable for use without consultation, reference or credit to the informal contributors, sharing Salokannel’s view of a sole responsibility by writers to decide the ‘ultimate form’ of the work despite the creative influence of other parties. Marie Jones’ writing process for the ‘Stones in His Pockets’ script is almost exemplary in this fact, absorbing a number of suggestions from the director and cast. The ruling that Jones owns the script, even with the assimilation of Brighton’s informally suggested ideas, including the actors’ anecdotes, (Paris and Christy, 2004) suggests a lawful parallel with Rose’s notion that the author is sole proprietor of the work, despite the varied origins of influence.
Paris and Christy’s article in The Writers’ Bulletin states ‘all those involved in the production’ had ‘contributed ideas and anecdotes’ prior to the writing of the script, (Paris and Christy, 2004, p.8) presenting a working environment where all artists have the opportunity to bring to the play their own ideas and suggestions which, ultimately, may affect the script that is delivered. This is a very common and often productive practice in the creation of new plays, as Terry Molloy revealed from his experience as an actor and director, during interview:
Over the years you get involved in projects, and as actors you have input – especially with a new play – into the scripting of something or other, and it’s always been an unwritten law that as you’re not just contracted to play as cast but to be creative; part of that contract is to be ‘textually’ creative. Nor is a director there merely to direct the words as they are written. Both are contracted to be creative in making the piece suitable for stage and accessible to an audience.
(Molloy, personal interview, 25/10/2006)
Taking Molloy’s viewpoint, a director’s involvement in advising, guiding and developing script ideas is part of their job title; an expected obligation as a director. A director who does not have some contact in the development of the script could be seen as failing in their basic duties in preparing a new play to be ‘accessible to an audience’. In highlighting the key elements Brighton considered to be markers of co-authorship of the play, such as contributions during rehearsals and the submission of notes and ideas (Paris and Christy, 2004), she seems to be listing the fundamental elements of her job description: namely, to be proactively creative during the development phases of the play and to air her ideas. To be ‘textually’ creative is an expected, often accepted, fragment of a director’s vocation, and actors’ skills within the theatre.
The expression of ideas within this open forum becomes contentious in light of how Brighton, as a director, attempts to assert her role as coauthor once some ideas were taken onboard by Jones and practically assimilated into the work. David Saunders argues that ideas alone have no basis in claiming authorship:
…The law protects as property an original expression or presentation of ideas, not the ideas themselves. Indeed the work is taken to exist in order to put ideas into circulation – the marketplace of ideas – where they form our common heritage and freely present themselves for comment and criticism, and it is on this group that the United States Copyright Act of 1976 expressly excludes ideas from protection. The assumption is that ideas cannot be appropriated because they are already common property, like breathing, magnetism or Shakespeare… …In principle, therefore, protection does not extend beyond the actual formulation that appears on the page.
(Saunders, 1992 p.213)
Saunders implies that the ‘formulation’ of the ideas is essentially the function of the writer. The ideas, once ejected into the open forum or ‘marketplace’, become the building blocks supplied to the writer to construct the script. It is the ‘presentation’ of the ideas, the engineering of the script in a mechanical, coherent way which is recognized as an object; owned by the author and recognized as a tangible, existing piece of work which can be protected. The pitching of ideas, once employed, has no basis unless it was scripted beforehand. As such, Brighton’s suggestions, and the actor’s anecdotes, had no real value or existence until Jones legitimized them within the writing process. A claim of ownership of these ideas, or insinuation of plagiarism, is entirely absurd when due consideration is given to the working environment which the ideas were freely aired. In his study of the development of copyright, Saint-Amour affirms Saunders’ argument whilst, interestingly, underpinning Salokannel’s conjecture on the writer’s responsibility:
We should remember here that plagiarism is an ethical transgression rather than a legal one, and that the plagiarist only infringes copyright when the purloined text is protected by copyright and the plagiarism published.
(Saint-Amour, 2003, p.95-96)
As such, Jones did not purloin ideas as used in the original script, which were then carried forth in later reworkings of the play, as she was the first to craft these ideas into a working script. The main question which arises from this, however, is the moral and ‘ethical transgressions’ which Saint-Amour and Salokannel cite as major factors when copyright is applied to a play which is partly inspired by the suggestion of others. As an idea alone cannot be reclaimed by the vocal actor or networking director, do written notes submitted by hand constitute as having a real, physical impression upon the writing process? Brighton claimed she submitted such material in hard copy, elements of which were used through different drafts of the play. (Paris and Christy, 2004) In light of Terry Molloy’s practical experience as an actor-director in the presentation of ideas at development level, the suggestion to him of expressing ideas as written pieces presented the main issue which runs through a number of copyright contentions; the benefit of hindsight.
…It may be in an artist’s interest to seek a contractual clause – a bit like a prenuptial agreement – that would give them some rights over the future of the piece; you’re into the whole messy area of intellectual property. Without that, being asked to make written adjustments leaves you with a choice, “Do I do this job? If I actually change a line on stage, am I going to get paid for it should this play be taken up by Hollywood?” That way, madness lies. What’s the next thing? We’ll be having creative litigators! And we all know what happens when the litigators and accountants move in… creativity moves out. You have to lay down the lines before starting.
(Molloy, personal interview, 25/10/2006)
A direct involvement in the writing process is seen here as a transgression, a move away from the creative actor-director position into the author role and as such requires a contract to recognise the expansion into a different field of work. It is a change in role which needs to be determined prior to the initiation of writing, to avoid any confusion of artistic and legal ownership. The ‘marketplace of ideas’ where creativity is aired is seen as part of the actor and director’s responsibility as developers of the play. The process of writing notes, having a textual input, is the physical process of writing and for Molloy is a distinctly different process to that of simply suggesting ideas which may or may not be accepted. Indeed, the pitching of ideas and intellectual property in paper form, requires the support of an official recognition of co-authorship to prevent a scenario where ‘creative litigators’ have to dissect a play down into its constituent parts, almost to a molecular level, to determine who owns what parts of the play. Throughout the ‘Stones in His Pockets’ case, Brighton was attempting to do exactly that; insinuating that elements of her textual input imparted ownership over fragments of the play. If Brighton had adopted the predetermined contact of Molloy’s ideal, an unpicking of the play would not be required. She would have been recognized as a legitimate contributor in a legal sense, from the very outset.
Brighton’s own notes were not a prerequisite of her contract, her choice of submitting material in written form was a method of her own choosing. Unfortunately, it was also a method which was not covered by her contract as director. As such, with Marie Jones as the legally recognised writer with a writer’s contract, she alone held the responsibility to use those ideas whether they were vocalized or inscribed. Working on a contractual basis appears to be the safest method of demarcating material as viable fodder for script development, especially when outlining a role which clearly states if the professional involvement constitutes that of being a possible coauthor. In terms of Brighton’s contract, perhaps it should have highlighted in a large typeface what she was expected to do, and what she shouldn’t do without a separate TMA Agreement of her own.
Whilst the classification of notes used within developmental stages are provided at the individual author’s own risk, the currency and value of ideas is still a confusing one. With playwrights now holding complete ownership over the script and any future profits accrued from future productions, will actors and directors feel intimidated by the knowledge that their anecdotal quips and suggestions are not their property? Rose asks, ‘If a literary composition was essentially a collection of ideas, why should copyrights be treated differently from patents?’ (Rose, 1994, p.34). It is a question which is hard to answer, yet it implies an anal process of dividing individual seeds of thought and attributing them to individual sub-authors. Whilst justifying each individual artists’ contribution to the letter, it imbrues an attitude of self awareness where Saunders’ ‘marketplace of ideas’ is close to collapsing in an economy where ideas are not presented or cross-pollinated in the direction of the writer for fear that the script will exploit the idea for the writers’ personal gain. Similarly, the writer will be reluctant to accept ideas, no matter how useful, in fear of an accusation of plagiarism or insinuations of joint authorship. This, undoubtedly, is an unhealthy direction for the theatre industry to work towards, as it stifles group creativity and the assimilation of ideas which could lead to richer, ameliorated plays. It also jettisons group development, reducing the roles of the writer, director and actor into singularly defined positions, preventing them from diffusing concepts and themes to enrich the final product.
To avoid the problem of claims being placed on plays which were inspired by persons other than the authors, Molloy suggested the method of a predetermined contract set out prior to work commencing. With a proviso of strict differentiation between working roles within the theatre, placing defined business lines between the individual functions of artists, is there a danger of creativity becoming stifled in a mountain of paperwork and legal bindings? The implication of a standardization of roles within the theatre, constrained by fierce contracts and copyright protection, can be foreseen by studying the structure of the heavily managed television and radio broadcast industry. Writers are shackled in golden handcuffs, often producing scripts to specification and continuously aware of their position in the hierarchy and their detachment from directors, and vice-versa. Molloy’s experience with the radio and television in the last twenty years has seen a shift from the methodical, almost theatrical workshop processes to a production standard where rehearsal periods are shorter and the marketplace of ideas, in a number of instances, no longer exists:
…I can remember occasions when the ad writers would turn up to a recording session in their new Porsches, wearing their £300 Armani suits with a script that was either too long or too clumsy in its formulation and it would be the input and suggestions from me as an actor doing the V/O that would bring it up to standard before I headed off home in my clapped out Morris Minor… … eventually I used to keep quiet; not my problem if I think the ad is poor, I’m just paid and contracted to say the words.
(Molloy, personal interview, 25/10/2006)
Molloy’s experience with the broadcast industry as an actor and writer are diverse; this is one rare example of his creative displeasure as a theatrically trained actor, who feels he should make a contribution, yet is conscious of the strong dividing lines within the broadcast industry which leave him unrewarded for his efforts. It is a heavily managed, layered industry which is carefully unionised with a discouraging view upon unofficial networking between roles, even if it improves the final product. (Davis, 1989) A growing familiarity of the TMA Agreement within the theatre could theoretically bring to the surface a multitude of complicated contracts of restraint within the creative process, just to avoid copyright problems. This could similarly alienate actors and directors from script development meetings, leaving writers out in the cold ether. The implications for writers are serious; an engagement within an industrialized management structure may prescribe an anxiety of treading on another department’s toes:
The fact that authors work alone, in industrial organizations, or within other communication networks, may impact on self-expressions, but neither uniformly not predictably.
(Geller, 1994, p.183)
Geller assumes that authors work alone, which on the whole is not strictly correct. Authors’ ‘work’ often consists of workshop research and development with groups of actors and directors, as previously discussed. Whilst the writing process is often construed by the public as a solitary process, the creative stages regularly stem from group discussion or field-based research. This synergy of the creative forum and marketplace of ideas is far from exclusive to ‘Stones in His Pockets’. The production of many new plays for theatre requires a rehearsal phase of development, for all artists and especially that of the writer. Geller’s ‘impact on self-expression’ upon the work of the exiled author from group development, suggests that the solitary writer will fail to reach an optimum or be as predictable and pliable as opposed to working alongside a development group with directors and actors. Whilst such a sterile practice avoids claims of joint authorship, it is a blinkered method of constructing plays and will have adverse effects upon the quality of the writing and production standard as a whole. Leeds based playwright Tony Harrison has the following to say about writing alone and developing within the theatre:
It’s very good for me to spend time alone writing and then go into the life of the theatre and write often quickly. And this has changed since I worked with other directors. And now that I direct my own pieces, when you get in a rehearsal situation and a scene doesn’t work, and it’s not the actors and the director can’t see a way round, then I say, ‘Hm, well, maybe I should rewrite this… and I think, if he says this…’ and I go away.
(Harrison quoted in Tusa, 2004, p.157-158)
Harrison not only describes the interweaving of the writing-rehearsing process for new plays, but also shows the essential affinity within the director-writer relationship in this writing methodology. Harrison and Molloy’s double roles as directors and writers show the close duality between the professions; they are fused together and the script grows, almost organically, from this compound relationship. To excise the writer from this pairing, either through alienation or contractual obligation, to distance the director from the writer in the construction of new plays, would be an unfeasibly catastrophic move. The only practical option to avoid a disparity of ownership, in this case, is Molloy’s predetermined contract. How actors and directors will perform in the shadow of contracts which fix them in clear positions, is difficult to predict. Whether this is a better option than an anal process of litigation within the marketplace of ideas, remains to be seen. What is certain, however, is that the impact of the TMA Agreement has made an indelible imprint on the stage, asserting the power and authority of the author. Directors, actors and all creative parties involved in new plays will be personally effected; in no means least the writers, from their newly asserted position of strength, where the marketplace of ideas may now be a far away place indeed.
Davis, S. (1989) The Official ITV Careers Handbook. Kent: Hodder & Stoughton.
Foucault, Michel. (1977) ‘What is an Author?’ in Bouchard, D (ed.) Language, Counter-Memory, Practice. New York: Cornell University Press. pp. 124-127.
Geller, P. (1994) 'Must Copyright Be For Ever Caught between Marketplace and Authorship Norms?' in Sherman, B and Strowel, A. (eds.) Of Authors and Origins. Oxford: Clarendon Press. pp.159-201.
Molloy, T. (2006) Unpublished audio interview, 25/10/2006, Norwich: England. 20 minutes.
Paris, C. and Christy, L. (2004) ‘Copyright and Wrongs: The Stones In His Pockets Case’ in The Writers’ Bulletin, June/July 2004. pp.8-10.
Rose, M. (1994) 'The Author as Proprietor' in Sherman, B and Strowel, A. (eds.) Of Authors and Origins. Oxford: Clarendon Press. pp.23-55.
Rhymes, R. (1993) TMA Agreement.
Saint-Amour, P. (2003) The Copyrights. USA: Cornell University Press.
Salokannel, M. (1994) 'Film Authorship and the Audio-visual Environment' in Sherman, B and Strowel, A. (eds.) Of Authors and Origins. Oxford: Clarendon Press. pp.57-78.
Saunders, D. (1992) Authorship and Copyright. London: Routledge.
Tusa, J. (2004) On Creativity – Interviews Exploring The Process. London: Methuen Publishing Ltd.
Musings, arguments, reviews and projects within performing arts. Archived reviews from Entertainment-Focus.com. © Samuel Payne 2016