Abstract

"All the world's a stage, [a]nd all the men and women merely players"—or potential litigants, as the case may be. The typically dramatic world of live theater has taken the show on the road from the playhouse to the courthouse in an, as yet, unsettled dispute over whether stage directors can copyright the stage directions they create when they direct a production of a play or musical.

Until the mid-1990s, the question was seldom if ever raised in public circles. Historically, a playwright's ownership of all things connected to the script has gone unchallenged. However, recent cases initiated by directors and others involved in the collaborative process of play production, along with an outpouring of public debate and commentary, suggest to this Author that the issue is ripe for an analysis that attempts to offer a practical alternative to partisan debate. Admittedly, the results of this analysis are unlikely to garner a standing ovation from either side since case law does not seem to provide a sufficient basis to give unequivocal support to either position. Rather, the research detects the possibility of a middle ground that the courts have carved out of various disputes, and it suggests that the courts might, in fact, be willing in some instances to uphold a director's claim of copyright—but only in very narrowly defined instances.

Part I of this Note will provide an overview of recent developments that have brought the issue to light and serve as an introduction to the dramatis personae who have a vested stake in the outcome. Part II will review the relevant laws of copyright. Part III will examine analogous case law in the areas of joint authorship, derivative works, and independently copyrightable contributions to determine what, if any, property claims a director might be able to make. Part IV attempts to apply components of copyright infringement tests previously devised by courts to create a three-step test applicable to those limited occasions when a court might conceivably afford copyright protection to a director's stage directions. In conclusion, Part V summarizes the analysis and poses the as yet unanswered questions on which the final outcome of this issue may hinge.

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