Everything You Always Wanted To Know About Intellectual Property But Were Afraid To Ask - Part 1

by Ashley Griffin, Stage Directions

A Fun Romp Into ‘Fair Use’

They don’t give you an instruction guide when you decide you’re going to be a creator. Maybe they should. In the same way someone should teach us how to do our taxes before we turn eighteen, there are ins and outs of the creative process that we usually have to glean on our own – often with problematic consequences (whether through ignorance or deliberate mishandling.)

One of those things, that made headlines last year on multiple fronts is issues surrounding intellectual property - or what exactly your rights are as a creator to both defend your own work or adapt someone else’s.

In August of last year, Netflix sued the Grammy-winning creators of “Bridgerton: The Musical” for copyright infringement. A few weeks later a Texas church (The Door McAllen and RGV Productions) had their production of “Hamilton” shut down after altering lyrics and adding text to the show to promote an evangelizing (and at one point anti-LGBTQ+) message.

There are numerous musical parodies of well-known properties – some successful (and legal,) and some that have been forced to shut down for copyright infringement. I myself am the creator of “Forever Deadward” – a musical parody of the “Twilight” saga (as well as other YA and vampire entities) that played at New World Stages, and I know more about parody/satire legalities than any non-lawyer should.

So, what exactly is happening here?

Copyright refers to the legal rights given to the originator of creative material. In general, in the U.S., a copyright lasts seventy years after the (literal) death of an author, at which time the work enters the public domain – meaning anyone can do anything with the work without getting permission (please note there are exceptions to this and you should always do your research before deciding to adapt a work or assuming something is in the public domain.)

An obvious example are the plays of Shakespeare – all of which are in the public domain. Imagine if every production of “Hamlet” had to get permission from Shakespeare’s estate! But during a creator’s life (and for several decades after,) copyright helps protect the value of their work – giving the creator the ability to safeguard it from being copied to the degree where they cannot sell or profit from their work effectively. Copyright encourages creativity, guaranteeing a creator the ability to earn a livelihood from their work. In essence, the question to be asked is “Does another creative venture substitute or destroy the original market for a particular work?”

So, basically, if person A writes an award-winning, best-selling novel, person B can’t reproduce the novel and sell it themselves, under their name. That’s blatant copyright infringement as it prevents person A from earning a living from their work.

That being said, there are legal ways of using or referencing a work that has not entered the public domain:

Parody

Parody seems straightforward. In its simplest terms, a parody (according to the New Oxford American Dictionary) is “an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect.” Sounds almost interchangeable with “Satire” doesn’t it? But legally it’s not, and this is where some projects have gotten into hot water, and how some big organizations have made arguments against works they simply want out of the way.

In layman’s terms, a parody is something that makes fun of the specific source material they’re referencing whereas satire uses source material to make fun of a broader subject. A landmark case in point is the 1997 lawsuit against the book “The Cat NOT in the Hat!” Which used the framework of “The Cat in the Hat” to parody the O. J. Simpson trial. The representatives of the book claimed it was a parody. The plaintiffs said it was not. Ultimately the court ruled against the book due to the fact that it was deemed satire, not parody.

The book used “The Cat in the Hat” format, text, and structure not to parody “The Cat in the Hat” but as social commentary about the Simpson trial. The argument was that they didn’t NEED “The Cat in the Hat” material to make their point, so it wasn’t necessary for them to reference it. And satire is not protected the way that parody is. Parody is part of “fair use.”* Satire is not.

“Inspired by” but Completely Transformative

For example, “Fifty Shades of Grey” started its life as fan fiction of the “Twilight” saga, imagining what would happen if Bella and Edward met in college instead of high school and Edward’s “dangerous nature” extended to his preferences in the bedroom.

When the fan fiction became successful there was talk of publishing it as a novel. In order to do that, the author needed to “transform” any elements that connected it with “Twilight.” Bella and Edward became Anastasia and Christian and there was nothing supernatural anywhere in sight. In essence, anyone who didn’t know its history would have no idea it was connected to “Twilight” thereby not offering any competition with “Twilight” readership.

That’s the key here – the original author must have no grounds whatsoever to say that you are potentially taking sales away from them. This includes anything from an adaptation that’s too close for comfort, to a sequel (theoretically the original author could write a sequel themselves, meaning yours would compete.) It’s not well known that Jonathan Larson’s musical “Superbia” (immortalized as the show Jonathan is workshopping in “tick…tick…BOOM!”) was originally born out of Larson’s desire to write a musical adaptation of “1984.” When he couldn’t secure the rights, he decided to write a dystopian musical with a completely original plot, allowing him to move forward.

Work Based on Biography/History

This can get into some tricky territory…technically any historical facts that are common knowledge are in the public domain, however, tread with caution if the person/people you want to write about are still alive. Technically there are ways around getting permission (look at the number of “unauthorized biographies” out there…) but it is very easy to get sued for defamation (even if you don’t consider your work to be defamatory) or for royalties since people do have rights to their life stories.

In 2011 Warner Brothers settled a lawsuit regarding its Broadway musical “Baby It’s You.” The musical told the story of Florence Greenberg, the woman who discovered The Shirelles and created Scepter Records. However, according to rumors, The Shirelles didn’t find out their story, or likenesses, were being featured in a Broadway musical until they happened upon the New York Time review. Members of the group, including Dionne Warwick, sued Warner Brothers’ Theatrical division, and their representatives stating that “having been cheated out of their royalties when they were young and popular, (they) are now victimized again.”

‘Baby It’s You (Photo: Sara Krulwich/The New York Times)

If you are not writing about a subject involving anyone who is alive you still need to tread with caution. General facts that appear via multiple public sources are fair game, but if you want to adapt a specific biography or non-fiction work you must get permission from that author.

That is likely one of the reasons that the musical “Hamilton” has such a strong relationship with Ron Chernow – the author of the biography “Alexander Hamilton” which creator Lin-Manuel Miranda has stated was his inspiration for writing the musical. It is likely that Miranda had to get the rights from Chernow to specifically adapt his biography.

Educational/Critical/Editorial Purposes

This basically is what allows schools to show films in class or journalists to reference parts of copywritten material in reviews/articles. This is part of “fair use.”* And note – good faith criticism does not count as “destroying the market.”

However, also tread with caution here as a critical/editorial work must include commentary and transformation. A review clearly falls into this category but, for example, there was a notorious case where J. K. Rowling (actually well known for her openness and anti-litigious reputation with parodies/creative works, etc. related to the “Harry Potter” series), sued the authors of a “Harry Potter” encyclopedia. The defendants claimed that their work was transformative (and educational) but, by the nature of it being an encyclopedia they had to quote large passages of the original text, unchanged.

Rowling countered by stating that way more of the encyclopedia was direct quotes from her books than was actually needed in order for the authors to accomplish their goal (and lacked needed commentary, etc.), on top of the fact that Rowling planned to write her own “Harry Potter” encyclopedia and this encyclopedia would destroy the market for hers. Ultimately the court sided with Rowling.

Charity Performance

You still need to go through the rights holders, but generally, if it’s for charity (and you’re not making any money, or transforming the original work) it’s a lot easier to make this option happen.

Authorized Adaptation

As this heading suggests, this is an adaptation where the rights have been granted to the adaptor – but be aware, this means the original creator can be as involved or not, as they want to be. They might be entirely hands-off and let you “do your thing,” or they may have numerous specific demands (such as P. L. Travers during the making of Disney’s adaptation of “Mary Poppins.”) Creators can pull the rights at (just about) any time, so you will need to work with them as the piece progresses. And getting the rights to a property usually involves paying the original creator and guaranteeing them royalties.

*Please note that “fair use” is not limited to parody/editorial/educational purposes, but those are the most commonly known (and commonly used) aspects of fair use.

That all seems well and good.

So what exactly happened with the “Bridgerton” musical?

We’ll get into that in Part 2. Click here to read more.