Fair (or not)

Some things

Before we get started in earnest, here are some things. They didn't fit organically into anything else we're talking about today, so rather than awkwardly shoehorning them in as I might normally do, I'm just going to throw them out there. Enjoy these things:

(1) MPR recently aired this interesting conversation about female characters in Shakespeare's plays, featuring local artistic directors Michelle Hensley of Ten Thousand Things and Sarah Rasmussen of the Jungle, as well as Tina Packer, the founder of Shakespeare & Company in Massachusetts.

(2) HowlRound recently published this knowledge bomb from Mixed Blood's Jack Reuler that will help you become not only a successful Artistic Director, but an ethical one as well.

The big game

I guess the biggest news from this past week comes not from the theater world, but from the biggest annual celebration of America's national religion. One group of large men squared off against another group of large men to move an oddly-shaped ball around a big field while producing as many concussions as possible. And then they took a break for a giant musical passion play that Coldplay happened to be a part of. Then they went on to make even more concussions.

I'm not here to disparage football. Lots of people like it. It's just that, as someone who's not all that into it, I couldn't even pretend to have a dog in this fight. I live in a town where our local team has never won a Super Bowl, and my hometown back in Illinois is closest to a team that just decamped for the West Coast, leaving their former city to pick up the tab for $144 million in debt on the now-empty stadium, which, by the way is a shockingly common problem for cities across the country. (But don't worry, Minneapolis. I'm sure that could never, ever happen with our billion-dollar stadium.)

But, like I said, I'm not here to disparage football. I'm here to disparage the pandering ways that theater people are spoken to about football. The prime example is this Buzzfeed-ripoff listicle courtesy of Playbill that continues the sad stereotype of theater people being little artsy-fartsy dandies with no knowledge of the sportsballs. For crying out loud, people, we have theater companies making friendly wagers on the outcome. I'm not that into football, but to pretend that it is a complete mystery to someone like me in this country is like pretending that Catholicism is a complete mystery to an atheist in Rome.

Heck, even I can get on board with hating The Woo Guy. Screw that guy, right?

What are you funding?

Now, let's move on from the world where billions of dollars of public money is continually poured into an unceasing river of support of private, for-profit enterprises and into the world of public funding of the nonprofit arts world. This is totally a coincidence and in no way meant to highlight the insane disparity between an industry in which people who are already billionaires extract massive subsidies from the public and an industry that must repeatedly justify before elected officials the right for its people to exist above the poverty line. Nope, that's not my intention at all.

The Atlantic recently published a long article detailing the state of public funding for the arts in America. Here's their assessment, in a nutshell:

"The current state of the arts in this country is a microcosm of the state of the nation. Large, mainstream arts institutions, founded to serve the public good and assigned non-profit status to do so, have come to resemble exclusive country clubs. Meanwhile, outside their walls, a dynamic new generation of artists, and the diverse communities where they live and work, are being systematically denied access to resources and cultural legitimation."

It's really a fantastic article, and if you're in the arts you should read the whole thing, as it tracks the birth, life and erosion of the National Endowment for the Arts and the big private philanthropists whose money has helped push the big non-profits into country club status. (At a meeting I was at last night, an attendee described this system as "plantation theater")

It's evident in this 2015 report on charitable giving from The Chronicle of Philanthropy. The growth rate of giving to nonprofits across the board has slowed down, but the midsize groups actually saw an overall decrease in donations. The large organizations, the ones that already command most of the public money, also took home the bulk of private money. Sure, there are heartwarming stories of little guys making good, like this Chicago-area theater that moved up from a 60-seat storefront to a new $28 million facility thanks to donors, but that's the extreme exception.

So, let's ask the question: what are the arts for? Answer that, and you may have a key to wrestling the money off the plantations. So, here's some more assigned reading for you exploring that question:

(1) Diane Ragsdale at ArtsJournal argues for a return to beauty. (By the way, she is agreeing with conservative columnist David Brooks, which is something you don't see everyday)

(2) Ken Tabachnick at The Clyde Fitch Report argues that the arts can help create a set of common values for America.

Messing with Sam

Last week on News and Notes we talked about the dustup between the Wooster Group and publisher Samuel French over the publishing company's supposed attempt to ban critics from reviewing the Group's production of a Harold Pinter play.

First of all, Samuel French isn't so drunk with power that they believe they can actually ban critics from writing about something; and second of all, the easiest way to get critics to come to your show is to tell them that they're not supposed to. This is why the LA reviewers are all dashing off their "you guys, this is totally not a review of The Room by Harold Pinter as done by the Wooster Group *wink* lol" columns.

Now before you drag your pitchforks and torches over to the Sam French offices (or at least make your snarky comments about the arbitrary controlling nature of playwrights), let's take a moment to consider this counter argument: perhaps the real dick in this cockfight is the Wooster Group itself. The company has a long history of taking liberties with the scripts it chooses, sometimes with the blessing of the playwrights and sometimes definitely not. (Let's just say that asking permission has never really been their thing.) And let's stare this fact in the face: the company really didn't have the proper licensing in place before they launched this venture; and when they were called out on it, they pulled off an admittedly splendid dodge by shifting everyone's attention to the clumsily-written (and utterly unenforceable in its literal sense) clause in Sam French's tentative agreement with them.

Before you put your conspiracy hats on and assume that I've been bought out by Big Theater Publishing, let me say that Sam French is completely on the "dick" side of the ledger in a different ongoing dispute.

Theater maker Erin Pike has been touring the country with her show That'swhatshesaid, a mashup of all the lines spoken by women in the the ten most-produced plays in America in the 2014-2015 season. You actually had a shot to see it performed here in the Twin Cities last year, and if Samuel French has their way, you will never have that chance again.

Just before the show was about to open in Seattle, the publishing company sent a cease and desist order to the theater claiming copyright infringement on Joshua Harmon's Bad Jews, which the company publishes. They didn't notice that the show also cribs lines from a bunch of other plays that Sam French publishes, probably because no one at Sam French has actually seen or read That'swhatshesaid.

Pike went ahead with her performance cutting out the offending lines from Bad Jews, which prompted Sam French to send another cease and desist order, this time citing thievery from Matthew Lopez's play, The Whipping Man. This again proves that Sam French has not actually seen the thing they are ceasing and desisting, because The Whipping Man has no female characters and therefore has none of its lines included in That'swhatshesaid.

So now it's time to wade into the murky waters of Fair Use. US copyright law has a vague little area allowing for copyrighted material to be used in certain situations and courts have continually ruled that parody and satire legitimately fall under the Fair Use clause. For a recent example, look at the long fight over the play 3C. That parody of the TV show Three's Company was nearly sued into oblivion by the copyright owner, but the playwright stood up for himself and the judge agreed that it met Fair Use standards.

You would think that this very recent case would set a precedent that copyright owners would want to pay attention to, and you would also think that Pike's show fits the very definition of Fair Use, but Sam French seems intent on bullying its way through this one. When asked about the idea of Fair Use in this case, the company’s executive director Bruce Lazarus stated:

"Fair use is a defense, and if proved it’s perfectly fine and within the law. But it’s a judge’s determination as to whether [That’swhatshesaid] constitutes fair use. Not having seen it, not having read it, I couldn’t tell you if it was fair use or not.”

Tough talk. Actually, it's tough talk that proves Bruce Lazarus is not too up on his recent case law. Aside from the 3C case, there was another big copyright case decided last year, Lenz v. Universal Music Corp. (also known as "The Dancing Baby Case"), in which the 9th Circuit Court of Appeals ruled against a copyright holder trying to sue someone who claimed Fair Use. The judgement handed down stated that copyright holders have a "duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use."

Basically, Bruce Lazarus, by not bothering to read the supposedly offending material before firing off a cease and desist letter, you have not actually considered it in good faith, and are therefore squarely in the "dick" category, legally speaking anyway.