Adventures in Copyright

As a longtime editor and writer I knew the basics about copyright:

  • I own the copyright in any original work that’s fixed in some tangible medium. IOW, if I print out copies of a novel chapter for my writers’ group, it’s copyrighted. I don’t have to put “© 2018 by Susanna J. Sturgis” on it. However . . .
  • If I want to defend my copyright against possible infringement, it needs to be registered with the U.S. Copyright Office.
  • You can’t copyright an idea.

Then things got complicated. I was offered an honorarium to develop a script from 1854 . . . a folk opera, a concept left behind by one Jack Schimmelman when he died in 2015. This concept included some inspired ideas but few distinctive characters, no story, and no usable dialogue. It was a stretch for me: I’m basically a nonfiction writer with a minor in fiction, but I’ve also got some theater background, my three one-act plays have all been staged, and I’m good at dialogue. As a longtime editor, I’m also pretty good at recognizing the potential threads in a big pile of carded wool.

Aside: For some background on the work, see “Fundraiser for 1854,” written by me for another blog I manage.

I took the gig. I read and reread works about and written in the 1850s.  The project absorbed most of my writing energies through last fall and into the winter.

After a few writer friends read it and an informal read-through was held in April, I knew I had something. I cut some characters (it’s still got a big cast) and did some trimming. It was still a work in progress, but it was ready for further testing.

By then, however, my alarm bells were starting to ring. An advisory committee had been formed to produce something stageworthy from this concept. It was led by the principal in the one-man nonprofit that owned the copyright on the original concept — the person who hired me to develop the script. Its members had even less theater experience than I did.  It was seriously suggested that, since resources were lacking to produce the whole work in 2018, half of it be produced this year and half of it next. I suggested instead that a staged reading be held this year, to refine the script and create some buzz, and a full production in 2019. This suggestion was adopted.

The alarm bells, however, were ringing louder and louder. At fundraisers and in PR, the work was identified as 1854 . . . a folk opera, by Jack Schimmelman. My play wasn’t an opera — the original concept wasn’t either; at most it was a blueprint from which an opera could be developed — and Jack Schimmelman didn’t write it.

I could see the day coming when I might have to defend my rights in this script. In other words, I had to register the copyright. First, though, I had to find out what my rights were. I wanted to give Jack Schimmelman credit for his work, but I didn’t want him getting credit for mine.

I engaged an attorney who specializes in copyright, including theater and performing arts law. In a series of emails I explained the situation and he walked me through it. At the outset, he confirmed my belief that my script wasn’t a “work made for hire.” It wasn’t “a work prepared by an employee within the scope of his or her employment.” The fact that I’d been hired and paid to do it made it a commissioned work, but it fulfilled none of the conditions that might have made it work for hire. Even if it had, we had never “expressly agree[d] in a written instrument signed by [the parties] that the
work shall be considered a work made for hire.”

The next question was whether it was a “derivative work” —  one “based on or derived from one or more already existing works.” In many instances, this is obvious: a movie is based on a novel, a work is translated from one language into another, a drawing is made from a photograph, and so on. Since ideas can’t be copyrighted, my case was trickier. The lawyer suggested at first that my script might not be derivative at all. I went through Schimmelman’s concept again, page by page. I’d used none of his original text, but I had borrowed his basic structure and some of his characters, one in particular. I pointed this out to the lawyer. He agreed — and reminded me that  the copyright owner of a derivative work holds all the rights to her original contribution.

Apart from two passages from Frederick Douglass, which are in the public domain, that meant the entire script. I had emails and a payment record to show that I’d had permission to develop a script from the copyrighted concept. Earlier this month, I registered my script electronically with the U.S. Copyright Office, forked over $55, and uploaded the most current copy of the work.

So last night 1854 had an unstaged reading. It was planned before I knew what my rights were, so (other than singing in the chorus) I had no hand in it. The good news is that we had a good audience, the audience was enthusiastic, and at the end the co-director announced that I had written the script. The not-so-good news is that the cover of the program identified the work as “1854 . . . a folk opera,” by Jack Schimmelman, my credit as playwright was buried on the back cover, and my annotated notes about the characters were included in the program with no attribution whatsoever.

I am, in other words, very glad that I engaged a lawyer, ascertained my rights, and registered my copyright. Now 1854 cannot be produced or recorded without my permission, which I’ll be happy to give as long as the title of the work is 1854 (no more “folk opera”) and I’m identified as the playwright.

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