Category Archives: Copyright

All aspects of Copyright for playwrights and people who stage shows.

What happens when a writer dies?

The writer - a floral tributeThis is not a spiritual question, nor is it a particularly physical one (with answers involving worms, combustion or large quantities of formaldehyde).  Nevertheless, it is a very practical matter.

Our society believes that death should not prevent writers from benefitting from the fruits of their labours.  We express this belief through copyright law which generally holds that copyright persists for 70 years after the writer’s death and that the estate of a deceased writer is entitled to any royalties that accrue during that time.  So, how is this managed?

There are two issues: who gets the royalties and how the royalties reach them.  In both cases, the writer needs to take some ante mortem action.

Where there’s a Will

A deceased writer’s royalties are part of the estate and are therefore disbursed according to the writer’s Last Will and Testament.  If the writer dies intestate, then the (residual) estate is divided amongst relatives of the deceased according to a standard formula.  (The formula varies between countries.)  Royalties are split in the same way as the rest of the estate.  (This may be simple, if everything goes to the spouse of the deceased, or it may be hideously complicated.)  So, the first piece of advice is that if your legacy is likely to be at all complex, then don’t put it off: make a Will.

By itself, a Will may not be enough.  A Will deals with the division of the deceased’s estate.  However, the literary estate may be a special case – for example, what happens if, five years after the author’s death, there’s an approach about making a film (or other derivative) of a work?  If the estate is divided amongst multiple legatees, who is entitled to make decisions about literary properties?

The solution to this is to appoint a literary executor; someone with the right and responsibility to make decisions about that part of the author’s legacy.  (Neil Gaiman is a very strong advocate of this procedure, and his on-line journal offers some very practical help.)  Even then, it may not be that simple.  That legacy lasts for 70 years; what happens if the literary executor doesn’t last that long?  If the work has a particularly long shelf life, does the writer need a literary line of succession?

Spill the beans before kicking the bucket

So you’ve appointed a literary executor?  Well done.  Now, how does he or she know what you have written and where it has been published?

In the simple, traditional literary mainstream, authors have literary agents who can be expected to know the state of play with all the writer’s works and hold copies of contracts.  But life isn’t always that simple; take playwrights (my particular cure).  Typically playwrights make direct approaches to specialist publishers rather than working through a literary agent.  Some playwrights have works with several different publishers.  Then there’s the whole business of self-publishing – which, typically, means that the writer has a contract with an on-line retailer who handles distribution of specific editions of particular works.  The literary executor needs to know about all those things.  Somehow, the writer needs to communicate to the literary executor.  It would take a pretty determined spiritualist to advocate leaving this until after death.  Somewhere, you need to leave the poor sap a complete list covering all the works and all the deals.

Who do you think you are?

Many writers use pseudonyms for some or all of their works.  From the point of view of your literary estate, your Will does not need to list your works and the names under which they are published (in the same way that it doesn’t list your bank accounts), but your executors do need to be able to trace that information.  You know that metal box where you keep all your important documents – your bank account details, investments, insurance policies and the like?  Well it would be a good idea to keep something in there about your literary works.  This could be copies of the (relevant bits of) correspondence with publishers, or it could be a simple list of title, published name and publisher.

The important thing about pseudonyms is that there should be evidence linking the pseudonym to the real name of the author.  What the author needs to do is to point the executor in the right direction.

Execution

So what does your literary executor need to do?  It’s a matter of giving instructions to the businesses that handle your works.  At their simplest, these instructions would be about where to pay the royalties.  Giving the instructions gets a bit more complicated when the executor is dealing with an on-line self-publishing retailer (because the author has an account with the on-line business, and the account needs to be changed or replaced), but the principles are exactly the same.  (I was discussing this point with Damian Trasler and he got in touch with a couple of eBook self-publishing companies to check the processes they had in place.  One of the responses included the slightly disturbing phrase “I recognize it’s inevitable for most individuals…”  This led Damian to observe that tracts of “undead” literature must be written from personal experience.)

The publisher (or eBook retailer) needs to be told that the writer has died and that the executor has been granted the right to deal with the estate.  Depending on the sums in question, the publisher may require evidence (of the death and of the executor’s rights).  This is the same as for financial institutions, and there are standard forms (death certificates and grants of probate) which will demonstrate legal proof if required.

And that’s it.  It’s a reasonably straightforward process, provided that the author has sorted out the information ahead of time.  From my (publisher’s) viewpoint, it’s much better to get an e-mail from an executor, than to have a royalty check returned with a message: “He’s no longer with us.   He didn’t leave a forwarding address, but he’s gone to one of two places.”

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They Want it How Long?

The Green Party and Copyright

There has been a small hoo-hah in the political wing of the literary community about a policy of the (British) Green Party.  Their 2015 manifesto is vague on the point, but their party policy  says

Specifically we will
a. […]
b. 
introduce generally shorter copyright terms, with a usual maximum of 14 years;

It’s that 14 years that is getting people hot under the collar.  For the purposes of this post, I shall assume that they really mean (as their policy implies) 14 years from the creation of a work of art to the expiration of copyright.

Now, it is possible to take a position that there should be no copyright whatsoever.  If you want to take that position, then I’m not going to argue with you. Instead I shall send you to Joanne Harris’s blog  and she will tell you why you are wrong.  No, the issue for this post is how long copyright should last.

Sonny Bono
Sonny Bono – from singing hippy to conservative senator

Under current British and most international law, copyright persists for 70 years after the death of the author (or the last surviving creator, for collaborative works).  American law is more complex, in particular due to the Sony Bono Copyright Term Extension act, which extended the copyright on corporate works to 120 years from the date of creation or 95 years from the date of publication, whichever is earlier.  For simplicity, let’s assume the current law is life plus 70 years.

When a work is in copyright, the copyright holder (usually the author working through a literary agent or publisher) has the right to say what can (and what cannot) be done with the work.  Through that right, the author is entitled to financial benefit from the work.  When copyright expires, the work enters the public domain.  That means that there is no restriction on the work – anyone can do what they like with it.  Derivative works can be created without the permission of the author; plays can be staged without the need to pay royalties.  The author (or, in the case of current copyright law, the author’s literary estate) derives no further income from the work.

So, is the Green Party’s 14 years enough to achieve that financial benefit?  The aim of the Green Party’s policy is to promote creativity (implicitly through the adaptation and reuse of works whose copyright has expired).  I would argue that it would have the opposite effect.
In the past few weeks, my theatrical excursions have included productions of Chess (copyright 1986), The Beauty Queen of Leenane (1996), A Funny Thing Happened on the Way to the Forum (1962), Barefoot in the Park (1963) and A Bedfull of Foreigners (1973).  All of those (and all of their contemporaries) would be out-of-copyright under a 14-year term.  If you consider this from the point of view of a producing company (most of whom operate on very thin margins), then if the choice is between paying royalties for a ten-year-old script or no royalties for one five years older, then for the most part, the older work will win.  So where’s the incentive to create new work?  There will be some arts bodies sponsoring new works, but otherwise, where will playwrights gain an income?  Who is going to pay authors for new work when they can get fairly recent work free of charge?  This will lead to playwrights working for nothing as the only way to get their works to the stage.  And, since publishers will not be able to achieve a return, few works will get published.

On the other hand, what’s the point of life-plus-70-years?  Copyright for the author’s lifetime is reasonably easy to justify – royalty income as a long slow trickle, in lieu of a pension – but why 70 years beyond that?  This seems to derive from the idea of a single-earner household, in which the author dies young (it used to be tuberculosis) and his widow (because all writers are men married to housewives) has to subsist on his royalty income for the rest of her life.  With modern lifespans and working patterns, this is nonsense.  A writer creating a magnum opus at thirty might get fifty years of royalty income which then benefits the literary estate for a further seventy years.  Get your own jobs, you bunch of slackers!

A case can of course, be made for supporting real dependents (generally minors) after the premature death of a writer, but I would argue that this should only last for their minority; after that, they can get proper jobs, just like anyone else.  (Proper jobs, of course, include the paid creation of new artistic works.)  That argument creates legal complexity (how do you know whether or not a work is in copyright because it is supporting dependents?)  To simplify, I would suggest a copyright duration of (say) 30 years or the life of the author, whichever was longer.

(Disclaimer: as a publisher, I administer copyright on behalf of authors, including a small number of deceased playwrights.  I should therefore stress that I shall continue to uphold the current law, even though I disagree with it!  There are a few more notes about copyright here.)

Political Afterthought

Whilst my main purpose was to discuss the logic of this single issue, there is also an interesting political consideration in that some writers wanted to dismiss the Green Party and all its works over just this one issue.  This strikes me as odd.  All political parties offer baskets of policies and generally it will be difficult to find a party whose every policy you agree with.  On the other hand, as a member of the electorate, you may have some issues that are red lines for you, and would stop you voting for a party that took a particular position.  That’s fine, except that if you are considering voting for smaller parties, it is most unlikely that they will get a majority of seats; whilst they may have an influence on policy, they will be unlikely to be able to implement their whole manifesto.

My point here is not to encourage people to support (or dismiss) any particular party.  My point is that the decision needs to be thought through.

Video Is Not A Human Right

I don’t really like videos of stage shows; they rarely do justice to the production.  A small part of this is dislike of my own performances.  I once gave a presentation which was recorded.  I seemed to have developed a pattern of movement rather like a simple box step – you know the one: right foot crosses over the left; left foot back; right foot back; step forward with the left and then repeat the whole sequence.  It was a bit like that; back across and forward, back across and forward.  I had my hands in my pockets and was leaning back slightly so that my legs seemed to reach my destination ahead of me.  I skimmed through the video on fast-forward and the movement seemed to be that of Charlie Chaplin’s tramp.

A live performance brings out the remarkable abilities of the human eye to focus on detail.  You can focus on the character speaking, or the various reactions to the speech, or anything else.  With a video, those decisions are made for you by the cameraman or video director.  That’s absolutely fine in a movie; the whole thing is planned to show you particular perspectives and there is no opportunity to see anything else, but in a stage play, there’s a whole show going on, not just the director’s cut.

Thus from my personal perspective, I prefer to see movies made as movies, rather than recordings of stage shows.  The two things can, of course, be connected.  Vagabond Alley Productions in Seattle staged Damian Trasler’s Love in the Time of Zombies and had fun making a trailer video as part of their promotional activity…

Other people go further and turn stage shows into movies.  The art-forms are different.  You can do things in a film that you couldn’t do on the stage; the most obvious being location shots, compared to the constraints of a stage set.  And, of course, you don’t have to build a set – provided that you can find a location to do the job.  Sometimes stage plays are used as short projects to develop the video-maker’s art.  Hideto Shimizu recently took this approach with Dog Day, a video production of The Doctor, a sketch by Gary Diamond and Ray Lawrence, taken off the stage and filmed in a realistic location.

You could never justify such a realistic set for a two-minute stage sketch…

Nevertheless, videos of stage shows can be useful – to the actors (my presentation style has improved), to the people back-stage who never got to see the performance, and to the people who couldn’t get to the show.  An example of the last case is the ex-pat group in Rabat who video their performances to reassure their friends and families back home that they are making an important contribution to international cultural exchange by staging comedy sketch shows.  There is, however, another issue with making videos of stage shows: just because you have a camera, it doesn’t mean that you have the right to make a video of anything you choose.

A video of a stage play (like a video of any other artistic work) is, in copyright terms, a derivative.  It could not exist without the work of the original artist – in this case, the playwright.  Under copyright law, the original artist has the right to determine what is done with his work.  In order to make a video of a stage play, you need the permission of the playwright.  (The playwright has the right to refuse permission, the right to set conditions and the right to charge fees.)  Taking the two examples above, Hideto Shimizu needed permission to make his film because it is a derivative of The Doctor.  Vagabond Alley didn’t need permission for their trailer because whilst it hints at the content of Love in the Time of Zombies, it doesn’t itself make significant use of Damian Trasler’s work.

For videos of live performances, Lazy Bee Scripts tries to make this process easy: our stage play performance rights automatically include the right to make one (and only one) video of a show.  However, if you want to make additional videos or additional copies of the original, then we will charge you a per copy licence fee.  Even then, there are limitations.  Licence to make a video is not the same as licence to display that video on the Internet, on cable television or at a public screening.  To do any of those things, you need specific permission, and you need to start by asking for it.

A Shaw Thing

GBShawBack in the days before e-mail and scheduled passenger planes, an English theatre company took a production of a George Bernard Shaw play for a tour of Australia. They got to the venue for one of their performances and realised that they didn’t have time to perform the full show before catching their train to Melbourne for the next date of the tour.  They sent a panicked telegram to Shaw asking for his permission to cut the (notoriously wordy) Prologue.  To their relief, Shaw replied immediately, granting their request with the one condition that they performed the prologue on the train.

The point here is that the company had to ask permission.  A play is a copyrighted work. The copyright holder (usually the author) has the right to place limitations on how the work is used.  (At its most basic, you can’t use a work at all unless you have permission, usually granted in exchange for a royalty fee.)  If you want to make any changes whatsoever to (performance of) a copyrighted work, then you need to get the permission of the copyright holder first.

There are obviously some practical limitations to this; for example, I’ve never seen an actor ask permission to forget his lines.  It seems sensible to me to take a somewhat more relaxed view with scripts for school plays.  Typically, they are written for a class-sized cast, but class sizes vary, as indeed do abilities.  In such cases, for example, dividing a narrator’s role amongst multiple actors is usually within the spirit of the author’s intention.  On the other hand, adding lines is not within the author’s intention, since if the author thought that more lines were needed, they would have been written in the first place.  In that case, requesting a change is the sensible approach. We’ve given some guidelines in the Lazy Bee Scripts help pages for the sorts of changes that may or may not be made without permission.

Not asking permission for changes has consequences.  Copyright is a legal structure; people can and do get sued for breaches.  At a more practical level, most play festivals have competition rules that require any text changes to be approved by the copyright holder – so unauthorised departure from the text will result in disqualification.

So, the author has a right to refuse changes – but don’t let that put you off asking.  Compton Little Theatre wanted to put on a production of Stephen Gillard’s wedding play “The Happiest Day of Your Life”, but when they auditioned, they found that they couldn’t get the right balance between male and female cast members.  A couple of the auditionees said “you know, it could work with a switch…”  At first, the director said no, but then thought about it and passed the question on to me (as rights agent).  I asked Stephen who, in turn, thought about it before giving the change his blessing.  The result will be staged at Compton Village Hall and the Leatherhead Drama Festival.Compton Little Theatre production of The Happiest Day of Your Life by Stephen Gillard

Kipling’s Boat

Kipling's lily pond at Batemans

Amongst a variety of excursions this summer, we went to Bateman’s, the one-time Sussex home of Rudyard Kipling.  It is now owned by the National Trust who are trying to restore it as much as possible to the way it was in  Kipling’s time.  This includes a rectangular lily pond of about thirty feet wide and fifty feet long.  It is not, by any stretch of the imagination, a boating lake.  Despite this error of scale, Kipling kept a boat there for the amusement of his children.  This was a small paddle boat – the sort with a hand-cranked paddle on either side – with a capacity of one adult or a couple of children.  He named the boat RMS Queen Mary.  The National Trust recently built a copy of the boat.  Now, whilst Kipling was a private individual and could name his private boat whatever he chose, the National Trust is in the business of opening houses to the public; they needed to play by the public and commercial rules.  In order to name a small paddle boat on a lily pond, they had to apply for permission to Cunard, the owners of the RMS Queen Mary trademark.  Cunard refused permission.
Now, you may well think that this is ridiculous.  I would argue that Cunard were wrong to refuse the use of the name for this purpose.  Nevertheless, this illustrates the law – the National Trust could not use a trademarked name (in this context) without permission (they named the boat 534 for a good and logical reason that escapes me completely).  The same law applies to writers and publishers…Kipling's boat

Playwrights – Pushing the Boat Out

The rules that apply to playwrights are a mixture of copyright and trademark law.  Broadly this might be summed-up as “you can do anything with anyone else’s intellectual property provided that you have their permission”.
Ah, but there’s the rub.  You have to ask for permission, and that permission may well involve a permissions fee.  For plays, the permissions fee is rarely an economic proposition.  Okay, so what can we do without permission?  (This is my interpretation of the law; I have yet to be taken to court to demonstrate how wrong I am.)

  • You can specify the use of a trademarked product in your play.  If you think the character uses Heinz Tomato Ketchup, you can say so.  (Heinz may even be grateful for the product placement, unless you are using it as a murder weapon.)
  • You can talk about products or copyrighted works (or people).  If you think your character has an opinion about something or someone, you can allow the character to voice that opinion.
  • You can suggest the use of (copyrighted) songs, but then anyone producing your work needs to get permission (usually through a fee to a collection agency) to perform the songs
  • You can parody copyrighted works or trademarked items (or people), but it has to be a clear parody (involving exaggeration of characteristics)

Then what can’t we do?

  • You can’t use a trademarked (or copyrighted) character other than in parody.  In practice, this means that you can’t use a character in the context in which it was used in the original work.  For example
    • In any context involving dwarfs, Happy, Sleepy, Bashful et al are trademarks of the Walt Disney Corporation who have bigger lawyers than you do.
    • Having a time traveller called Dr Who infringes BBC copyright
    • Naming a wizard Harry Potter infringes J.K. Rowling’s copyright
  • You can’t use any character or storyline from a work whose author was alive within the last 70 years.  (That’s British law.  American copyright law is more complicated; start with the British law as a guideline, then check.)
  • You can’t quote passages of copyrighted works (including songs) without permission

Permissions and Derivative Rights

“Permission” covers using an extract from someone else’s work within your work.  So, for example, Jonathan Edgington got permission to use the song “Hope” by Mark Laurent in his play “Sleep Out”, and Peter Nuttall has obtained permission to use images of paintings by Alexander Millar in the context of a musical play (“Working Man”) inspired by Millar’s work.
A “Derivative” is a work in a new format or medium based on a previous work.  For example, Tony Best has, with the agreement of the author, created derivative plays from a couple of Antonia Barber’s children’s stories.  In that case, Antonia Barber is entitled to a derivative royalty for every copy and every performance of the play.
Whilst the publisher and rights agent may deal with the royalty consequences of permissions and derivative rights (Lazy Bee Scripts does this), the initial approach needs to come from the playwright to the creator of the original work.

The Boot on the Other Foot

Permissions to use extracts or create derivatives from published plays
Occasionally, Lazy Bee Scripts is approached by third parties for permissions and derivative rights.  This means that we negotiate terms, collect fees and pay a royalty to the author.  The most common approaches are

  • Use of an extract from a play in a book.  (These are generally text books for Drama, English and “English as a foreign language”.  We have also had one case where an extract from ABC December by Sherrill Cannon and Kerry Gallagher was used in a romantic novel by JoAnn Ross.)  In these cases, the author wants to illustrate something and has found a suitable play on the Lazy Bee Scripts web site.  They can then tell us exactly what they want to use, and can give us details of the finished work, including the print run.  We then sort out the contractual side.
  • Translation of a play into a foreign language.  This creates a derivative work and therefore requires permission.  (If you want to do this, start with an enquiry to the publisher or the author’s agent before you make the translation!)
  • Creation a motion picture from a script.  A motion picture is a derivative work and therefore requires permission.

There is no automatic right to use someone else’s copyrighted work.  There are often good reasons to want to do so, but in all cases, permission needs to be sought.