Race and Copyright (The Fight we Fight and Keep on Fighting)

Today, we discuss copyright, but you wouldn't know it.
And by that I mean this:
Standing Up for Playwrights and against "Colorblind" Casting
An article from American Theatre about the rights of the playwright.

There are three principles in this article:

1. The first principle is the creative control of the playwright over critical aspects of their work. We stand in solidarity with the Dramatists Guild's letter in defense of playwright's right to approve changes made to their text, which includes, but is not limited to changes made to the characters' race and ethnicity
2. The second principle is the importance of ending the harmful practice of white actors playing characters of color (citing the historic examples of whites appropriating other cultures and subsequently subjugating them through theatrical propaganda)
3. The third principle is that no individual, regardless of their stance on these issues, deserves to be singled out for harassment and threats

Let me deal with these principles in reverse order and degree to which I disagree with the article:

The third principle: I just flat out agree with it. Nobody deserves to be harassed or threatened based on their views and opinions about art or this crazy little thing we call theatre. Done.

The second principle: is a bit stickier. Trickier.

In the American Theatre article, they mention Jim Crow Laws, which were a post- 13th, 14th, and 15th amendment set of rules/codes of conduct.

See we had this thing called slavery (still do, it is called prison/economics, but enough of that) and it was a bad thing.

To make up for it, the 13th and 15th amendments were written to naturalize citizens born here and to not infringe on the rights of any citizens despite race or prior servitude.

This included blacks and whites by the way.

In one fell swoop, all the slaves were set free and the race problem was over!

Except it wasn't.

See the Jim Crow Etiquette came into effect, which were a code of conduct to which blacks were expected to adhere.

After the Amendments to the Constitution, the states that were against the integration of slaves into the United States couldn't just write laws against them, so they invented rules.

Kind of like a big sibling inventing shit you have to listen to even though you know your parents said otherwise.

You can read them at length in the link above, but they include:

• Don't offer a hand to a white man as it implies social equality
• Don't offer anything to a white woman as it implies force/rape
• Don't even intimate a white person of lying

Then, the Jim Crow Laws were enforced;

• Separate drinking fountains
• Separate dining areas
• Separate sitting areas on public transport

Who enforced these sets of laws?

None other than the Supreme Court.

In Plessy v. Ferguson, the Supreme Court upheld Louisiana's decision to have institutions in place that were for different races.

This is where we get the term Separate, but Equal by the way.

Why is all this important for theatre today?

Well, for one, it is important to understand our history and how painful a one it was and how long it lasted: Jim Crow Law passed into effect after the Civil war in the 1870s and only came down in the 1960s.

There are very much people still alive who remember those laws all too well.

But, the name: "Jim Crow" comes from "Jump Jim Crow" a white comedian in blackface from the 19th century performing an imitation of a disabled black slave, going so far as stealing his name.

Yeah.

Theatre that literally influenced a culture to dominate another.

So theatre is important and we can agree on that.

SO why are we talking about it today?

well...Crack open any theatre textbook and see:

Minstrelsy:

Melodrama: 

For those wondering where the black characters are, they are:

• The people huddling in the background and...
• The white woman standing on the auction block...yeah

Vaudeville: 

Theatre has consistently (particularly in America) been a white man's game playing non-white roles.

It is still happening.

• The Nightingale in San Diego at La Jolla Playhouse
• The Orphan of Zhao in London with the Royal Shakespeare Company
• Stonewall whitewashing
• Exodus whitewashing

White actors being cast in non-white roles for "universality" reasons.

However, we run into a peck of trouble.

Now, we get productions like Death and the King's Horseman at the National Theatre:

Where a Yoruba tribe reenacts a story of their own telling and play white characters:

When asked about the controversy, the director had this to say:

"The approach has been to frame the play as a ritual performed by the Yoruba story tellers," he said. "They play the black and white parts - and the bushes and at one point all the windows of a house."

However, the idea of white face has come into the zeitgeist more recently with productions like

• Death and the King's Horseman at the National Theatre
• The Octoroon at SoHo Rep
• And White Chicks:

Where Shawn and Marlon Wayans:

Play these gals: 

Yes, this was a movie...

Is it always inappropriate for actors to play a race other than themselves? No.

Is it always inappropriate for white actors to play any other race? No.

I don't wish to speak for anyone, but Mr. Suh (author of Jesus in India, cancelled due to white actors being cast to play South Asian characters) may disagree:

"The practice of using white actors to portray nonwhite characters has deep roots in ugly, racist traditions," Mr. Suh continued. "It sends a message, intended or not, that is exclusionary at best, dehumanizing at worst."

So...Maybe? But, no.

See, the American Theatre article makes a really interesting distinction:

Color-blind vs. Color-conscious

Color blind is what theatre has been doing for centuries and falls into the category of what Mr. Suh calls "ugly, racist traditions."
It opens up roles to white performers that would traditionally go to non white performers, producing a kind of cultural colonialism/appropriation.
It is dangerous because it forces non white performers to the outer edge of "normalcy" and makes whiteness conventional.
What some call an "erasure" of non white bodies from performance, story, and therefore, life.

But, color-conscious is something new.
In SoHo Rep's An Octoroon, there are three male actors:

• One white
• One black
• One Native American

In it they play, respectively:

• The red-faced Irishman, and the fiery, noble Native American
• The noble, white romantic hero and the evil, white usurping overseer
• The ever-loyal Uncle Tom character and the innocent, black, boy slave

They played their roles in

• red-face
• white-face
• black-face

They were so conscious of their race roles/choices that it physically hurt.

Because they were such a diverse cast and had made such delightful casting/design choices, the play was the most incredible piece of theatre I have ever personally witnessed.

This was a new work, devised and written by the ensemble performing it and unflinchingly talked about race and race relations (right down to the final climax, which I shan't spoil here).

But, what happens after?

Now, that the play is published and it will (deservedly) be produced by other companies?

Do they need to adhere perfectly to those casting decisions?

Are they implicitly part of the script? The text? The play? (whatever that is/means)

I do not know.

But, according to the American Theatre article that brings us to the first principle:

1. The first principle is the creative control of the playwright over critical aspects of their work. We stand in solidarity with the Dramatists Guild's letter in defense of playwright's right to approve changes made to their text, which includes, but is not limited to changes made to the characters' race and ethnicity

The Dramatist Guild Letter (link) mentions

• Clarion University, 
• Kent State University, 
• and Hartford-based TheaterWorks.

Who respectively produced:

• Jesus in India (self-explanatory)
• The Mountaintop (a play about Rev. Dr. Martin Luther King Jr's last night on earth)
• and The Motherfucker with the Hat

The controversial casting in all these cases favored white actors:

• Three South Asian characters were cast by white/mixed race actors
• Dr. King was cast as a white actor
• The lead Puerto Rican characters were cast with white actors

Two out of three of these productions were cancelled and none received explicit permission on the part of the author to produce these works in this way.

Mr. Suh released a brilliant statement in defense of the action taken: 

"On November 9, after confirming that a fully executed license agreement did not exist, I sent an email to [ ] insisting that she either recast, or cancel the production. I absolutely understand that this has caused anger, confusion, and disappointment among the actors and crew that had been hard at work on the piece. I do not take that lightly. The students are victims, and the timing of this mess has raised many questions. But the timing was never in my control."

"Control" is the word used.

What is and is not within the control of the creators of a piece?

"Play licenses clearly state that 'no changes to the play, including text, title and stage directions are permitted without the approval of the author' or words to that effect. Casting is an implicit part of the stage directions; to pretend otherwise is disingenuous" (link)

So everything within a given script:

This.
Cannot be changed without the express, written permission of the author.
What about concept?
Directorial vision?

"It has been the norm in the theatre (American theatres, at least) that the intentions of the creators trump the vision of the director unless the work is in the public domain." (link)

So no matter what author trumps other artists.
And that may be fair.
Because of this:

"Playwrights own our material. We are protected by copyright; in fact, we have sacrificed a great deal for the privilege of authorial ownership, most notably the right to unionize.  We have foregone equitable compensation, health and pension benefits, and the right to collectively bargain.  But in doing so, we have retained the hard-won right to protect the integrity of our work. This includes approval of all creative elements, including the cast." (link)

So playwrights sacrifice a lot in order to control their material.

But, if you look at the cases at Clarion, Kent State, and Hartford's TheaterWorks...

Clarion and Mr. Suh had a fundamental disagreement, but at least they could discuss.

The director of the piece a Ms. Michel stated: 

"Had I been able to have a conversation with him, I would've quickly understood his views and we could've either come to a consensus or I would not have done this play." and "We are a small state school in western Pennsylvania, and trying to bring cultural diversity here is challenging, i still believe what we did with this play was beautiful. It's very unfortunate people won't be get to see it. [sic]" (link)

They weren't able to communicate in time. 

Even Mr. Suh acknowledged it.

Not enough time. Not enough communication.

This is difficult enough.

But, what of the conversation that never gets had: that of the audience and the play produced.

At Kent State, the director did, in fact, cast a white actor as Dr. King as well as a black actor.

This was done in order to engender conversation about race relations.

I suppose they succeeded.

But, the playwright feels wronged, a distortion of the play, which is unfortunate.

So what is to be done?

According to Dramatists: 

"Directors who wish to dramatically reimagine material can choose from work in the public domain. But, when a play is still under copyright, directors must seek permission if they are going to make changes to the play, including casting a character outside his or her obvious race, gender or implicit characteristics. To do so without meaningful consultation with the writer is both a moral and a legal breach."

Okay. 

So only works in public domain can be utilized?

Fair enough.

Except for one or two snags:

Mainly copyright and its terms.

See every time Disney is about to lose Mickey:

They throw a huge fit and this happens:

For those who are curious, these are the various acts that extend copyright.

Originally copyright worked a lot like patents.

You make a thing, you are allowed free use of it for a limited number of years from its publication.

Then, people are allowed to make knock offs after a little while.

Thirty years after publication.

Then, it was extended to fifty years.

Now, it is seventy years.

After the life of the author.

So if you want to know how screwed you are, take an author's life expectancy and add 70 years.

Some works are 120 years from the date of their creation.

Copyright has moved out of the hands of the authors and is now meant to ensure the livelihood of the corporations that make a profit off of their work.

Not to name names (Disney).

So all of these wonderful conversations that are happening around the country with playwrights everywhere...

They cannot be held with all playwrights who fall under the realm of copyright.

And if copyright terms keep getting extended, more and more work will be withheld from public domain.

Thus far, I do not plan on ever seeing the work of...

Samuel Beckett:

Or Tennessee Williams: 

OR Arthur Miller:

Ever enter the public domain.

And that is a damn tragedy. 

Because one, these brilliant playwrights are dead, and two, their work can never be questioned.

It will forever be preserved by their various estates and agencies under the idea of authorial authority granted by copyright and the extension of said terms till the next century (definitely in Arthur Miller's case).

Dramatists again: 

"One may agree or disagree with the views of a particular writer, but not with his or her autonomy over the play."

Well, sure. 

But, what about the dead ones?

What autonomy is left to them?

I don't want to rail anymore on copyright or its ludicrousness, but this is the sole point on which I disagree with the American Theatre article:

If playwrights have absolute autonomy about all decisions to change their crafted text, then, copyright can and should end at the cessation of their life because who are we to ask about authorial intent besides them?

How can we pretend that copyright solely protects the author when all work published after 1923 and unpublished work after 1896 remains irrevocably under lock and key?

I do not wish to do away with copyright, but its logistics confound me.

This conversation is important because it is about racial bias, the erasure of non white bodies

But it is also about the amount of power and control playwrights wield in this country.

Control over the various productions of their show whilst they live and to our detriment after their demise.

Here is a photo of Shakespeare's a Midsummer Night's Dream:

Awful lot of asses up here.

(it is a joke, but the point stands: not a single lady up there. Let us not forget that theatre has also been a male's game and not just a white one. More ladies!)