Legal Eagle
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Q: Author's rights - maintaining them
How can an author be sure of safeguarding their rights once a work is in production?
A: I assume if it is in production then that production will have been presented by or licensed to the copyright owner of the stage rights in the territory concerned, whether such owner be the original author or his/her assignee or licensee. Otherwise the production would be an infringement of copyright for which appropriate remedies are damages and a restraining order (injunction).
If my assumption is correct, then there will have been a contract of some kind with the author which should spell out the extent of the author's rights in the production in terms of royalties for the author and any termination date of a licence and reversion of copyright/stage rights to the author. In some cases it will stop there and the author may have no say whatsoever over the manner in which his/her work is produced on stage, provided the production is faithful to the text of the work.
However, a well balanced contract will give the author certain approval and/or consultation rights (eg as to the principal members of the cast, choice of director and possibly also designers and other key personnel) though such approvals may be qualified in some or all instances by the author not being able unreasonably to withhold his consent. The extent of such approval and consultation rights will vary from case to case and will be largely dependent on the reputation and bargaining strength of the parties. Subject to this, the manner in which the work is presented on stage and marketed to the public will be at the discretion of the producer and director, to the exclusion of the author.
The producer's stage rights may be limited territorially or to a particular production or a particular period or be made subject to lapse in certain eventualities, such as failure to present a specified number of performances over a specified period or periods either in a particular place or at all, or they may be limited to presentation of only "first class professional" or only "amateur" or other types of production (as contractually defined) or whatever.
Again a balanced contract will provide for termination of producer's rights in certain eventualities such as non-payment of royalties or other breach of producer's contractual obligations, although any such termination is usually made contingent on the producer first being given an opportunity to remedy.
A playwright should also have contractual rights to attend auditions and rehearsals, often at producer's expense, and specified billing and biog rights. If he has an escalating royalty (eg by reference to recoupment of production costs) he should have a contractual right to inspection of production accounts, and in any event box office returns, for verification purposes.
Accordingly, the importance of ensuring a well drawn contract from the author's point of view cannot be overemphasised. That said, the author should nevertheless bear in mind that he has presumably written the work in order to have it produced on stage, and if he is too zealous in demanding protection of his perceived rights, he will be in danger of killing the goose. Many potential productions have fallen at the wayside owing to author's over-zealous demands.
Quite apart from contractual protection, an author, even after assigning away his copyright in the work, has certain statutory "moral rights", including specifically a right to accreditation (known as a right of paternity) (if asserted), and a right not to have his work subjected to derogatory treatment (known as a right of integrity). In the context of your question, this latter right is especially important. It is defined as any distortion, mutilation or other modification, or other derogatory action in relation to the work which would be prejudicial to the honour or reputation of the author and it is infringed by commercial publication or public performance. There are certain very limited exceptions and qualifications, which I need not go into here. Moral rights cannot be transferred (except on death of the author) but they can be waived either generally or in a specific instance, so an author should beware of any unjustified, supposedly routine contractual waiver.
First published online July 11th 2007
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