Nourishing the Commons: Rethinking Intellectual Property by Isaac Butler | HowlRound:
The recent example of Elevator Repair Service’s Gatz is particularly illustrative of how copyright and the values of exclusive ownership conspire to strangle creativity. ERS adapted a work that would have been in the public domain had the Copyright Term Extension act not passed in 1998 (it will enter the public domain in 2021 and is already there in many other countries). They entered into a multi-year negotiation with the Fitzgerald estate to be able to perform the show in their hometown because a commercial musical of Gatsby was in the works and had an exclusive option on the material in New York. No one was well served by this situation, neither audiences, nor artists, nor the source text itself.
Had the commercial production been a financial success rather than a turkey, Elevator Repair Service’s Gatz would have likely never opened in New York. If the Gatsby musical had toured, there is some chance ERS would have had to stop performing it in the U.S. period. This arrangement may have served the interests of the commercial producers. After all, they would no longer have any competition when it came to Gatsby adaptations. The interests of commercial producers, however, are not the same as those of artists or the art form in general. Perhaps, as we have different tax regimes for commercial and nonprofit art, we should have different intellectual property regimes as well.
In this time of resource scarcity, it’s tempting to adopt a bunker mentality in which we insist it’s every artist for herself and try with even greater fervency to “protect” our “property.” We must resist this temptation; it flies in the face of our lived experience and runs counter to our art form’s history. Almost every playwright I know has a script that’s an adaptation of something in the public domain—generally a story from The Bible, or the Greeks, or Shakespeare or Chekov—while almost every single person reading this has worked on a production of a show that used copyrighted music in its sound design without asking permission or paying royalties. I wouldn’t want to live in a world where only Aeschylus’s The Libation Barrers exists because he sued Sophocles and Euripides over their Electras, or where Peter Brook’s A Midsummer Night’s Dream never happened because some distant heir of Shakespeare’s forbade its radical design scheme. As Outrageous Fortune makes clear, intellectual property is also not where playwrights are actually making their money; the average playwright earns under $40,000 a year, with only 3% of that coming from licensing fees and only 9% coming from production royalties.