In this blog, CREATe doctoral researcher Jiarong Zhang reflects on the latest CREATe Public Lecture Performing Copyright: Law, Theatre and Authorship by Dr Luke McDonagh, Assistant Professor of Law, LSE. The event, held on 23 February, was the first CREATe Public Lecture to be delivered in-person on-campus for two years. The event was also live-streamed to an online audience making it the first hybrid event of this type staged by CREATe.
The lecture drew primarily on themes from Dr McDonagh’s recently-published monograph: Performing Copyright: Law, Theatre and Authorship. While many studies have explored the role of copyright law in artistic fields such as visual arts and music, this research focuses on theatrical practice, a field of study that has received considerably less scholarly attention. In the book, the author skilfully combines historical analysis of the evolution of copyright in this setting, with empirical research that draws on interviews with practitioners operating in the contemporary theatre field.
In the lecture, Dr McDonagh identified the performative nature of the law and the courtroom and convincingly argued that this is, in many ways, analogous to the ‘performing’ of theatre. The lecture examined the dynamic interplay between law and theatre in nineteenth-century England. In this period, lawyers translated theatre plays from Latin to English, and the court scenes in theatre influenced lawyers’ training. Moreover, it was theatrical practice (and other artistic practices) that set the stage for the law to imagine the objects to be protected and regulated. The speaker unpacked the evolution of two key tenets of copyright over many centuries of theatrical practice and performance, and how these concepts influence theatrical practice today, namely: authorship, and the copyright work.
The first concept, authorship, determines the first ownership in a copyright work. Before the nineteenth century, the making of plays was a collaborative process in which writers, managers, actors all contributed to the play texts. The prior existing texts, tropes, themes, and plots were in reuse and revision, so the texts were not stable. Instead, these embodied minor or major changes from performance to performance. In this situation, the speaker found that plays were generally published without a named author. Most prominent playwrights called themselves writers and dramatists rather than ‘authors’. As such, they could not rely on royalties from copyright as income but were hired and paid by the theatre companies that staged the plays. However, as the speaker discussed, this practice changed dramatically, influenced by copyright. Copyright empowered playwrights as ‘authors’ to control the printed texts and the right for others to reproduce these texts, so they were able to gain income from copyright royalties. Consequently, playwrights developed an authorial attitude to their works, a key ‘turn’ in conceptions of authorship and ownership in this area that endures to this day.
A second key concept that provided a central thread of the lecture was the ‘copyright work’. Copyright today is often characterised as a ‘bundle of rights’, such as the rights of reproduction, adaptation, and performance, but the situation in the eighteenth century was quite different. At that time, there existed parallel markets for play texts and play performance. Copyright protected texts, which meant that copyright owners had the exclusive rights to print the texts. However, copyright owners had no right to control the performance of plays, so anyone could scribe plays and perform them again without a licence granted by copyright owners. Copyright owners thus brought their claim to control the unauthorised performance to the courts. Responding to this, legal jurists granted them the right of performance, thus completing the bundle of rights contained in a copyright work. As a result, copyright applied not only to physical texts, but also to the intangible contents of the texts. Thus, the concept of the work changed to an abstract one, hence the concept of copyright work in drama was formed.
Drawing on the empirical research that underpins his recent book, Dr McDonagh identified key historical threads that continue to have significant influence in the contemporary setting. Central to this is the collaborative nature of making a play. Many contributors, including playwrights, attend performance rehearsals, who would have a solid ground to claim joint authorship and share a proportion of royalties. However, as many theatres companies are funded by public subsidy rather than commercial activities, the economic motivations to mount a legal case on these grounds are limited. Moreover, playwrights are generally unwilling or unable to bear the financial, time and reputational costs involved in such an action. Thus, litigations and public disputes about copyright issues in the theatrical field are very rare. In one recent dispute cited in the lecture, the theatre production Tree, performed at Manchester International Festival in 2019, credited one playwright as the author of the work. Two other playwrights, who worked on the development of Tree for several years before a new writer was recruited to the project were not acknowledged as authors. These two playwrights publicly claimed collaborative authorship of the work, as they contributed story elements and characterisations to Tree, a claim publicly refuted by the credited writer and co-creator of the production. This dispute never came to court but it raises many questions and inspires lawyers to ask, what is the legacy of the key copyright concepts formed in the historical context?
In the Q&A that followed the lecture, Dr McDonagh reflected on a range of probing questions and comments from the audience. For example, in relation to the attitude of playwrights to their works he noted that while some playwrights may not be knowledgeable about the technicalities of copyright law, they are arguably becoming increasingly aware of the potential significance of being identified as authors of copyright works. On the other hand, many theatre practitioners have multiple roles, such as actors and writers, and some of them are far less concerned with who should own what kind of credits. By comparison, in fields such as TV and film, practitioners are more likely to make clear distinctions between the contributions of author and performer. Therefore, it seems that conceptions of authorship and ownership of copyright in theatrical works are not fixed and continue to change.
In summary, this public lecture drew on the speaker’s recent research to weave historical and contemporary perspectives into an incisive critique of copyright’s role in notions of authorship, attribution and ownership in dramatic works. In doing so, this thought-provoking lecture touched upon a wide range of key elements and themes central to work conducted at CREATe including, copyright history, and the role of copyright in shaping contemporary artist labour markets in the creative industries. As such, Dr McDonagh’s valuable contribution will serve as the catalyst for future conversations at this fascinating intersection of copyright research.
A recording of the lecture is available here: Performing Copyright: Law, Theatre and Authorship – YouTube