Nourishing the Commons

Rethinking Intellectual Property

Isaac Butler

This article is a reprinting of a blog originally posted on HowlRound. See that post at
It was fun when off-off Broadway was just starting . . . when I lost all of those playwrights or when we all went wandering away, they stayed with me and just increased and added some of the other ones I respect and I admire. If Sam Shepard discovered something, it belonged to all of us. It was, “Oh good, we can do that, that is possible.” It was very much like we were inventing or discovering theatre for ourselves. If Megan Terry did something or Jean-Claude did something, it belonged to all of us suddenly.

  — Lanford Wilson

Last month, all of my social media accounts were ablaze with the effort of my fellow artists to save the Internet from the existential threat of the Stop Online Piracy Act (SOPA). This bill would’ve empowered the Federal Government to shut down websites accused of (but not proven to be engaging in) online piracy, enabled software companies to go after open source developers whose products could be used for piracy, and, thanks to ambiguous language within the bill, paved the way for an Internet blacklist not dissimilar to the one China uses to crack down on political dissent. While piracy is an (overstated) problem, SOPA (and its sister bill, PIPA) represented a huge overreach by an Internet-ignorant Congress — several sponsors of the bill violated copyright on their own Congressional websites — and corporate forces determined to maximize profits from their intellectual property holdings.

There is a general sense — both within creative communities and the public at large — that efforts by large corporations to control their intellectual property have gotten out of hand. DRM technology and other anti-piracy tactics treat users as criminals before they’ve done anything wrong. The advent of The Cloud also ushered in a novel time where users own a license to access a work rather than a copy of the work itself. With the rise of remix and mashup culture, we also daily see the benefit of violating existing copyright law and expanding the idea of fair use.

At the same time, we in the theatrical industry have largely either turned a blind eye to or actively encouraged an ever-expanding concept of individual intellectual property. We are comfortable with the idea of looser copyright laws if it means we can watch a reedit of The Shining trailer on YouTube, yet reluctant to give up the idea that creators should have unlimited control over our work forever. We’ll gladly burn copies of The Grey Album for our friends while demanding exclusivity when we option material to adapt it. We love remixes, but we are quick to accuse each other of being derivative. I hope that with the provisional defeat of SOPA and PIPA, we are in a moment where we as an industry can finally question the current copyright and intellectual property regimes under which we labor. We must dream together new systems that encourage creativity and move away from our current privatized, exclusivity-based system.

Congress’s power to set and define copyright comes from the Constitution, Article I, Section Eight. The purpose behind copyright was neither the making of money nor the idea of creative control. Instead, Congress was empowered “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The ideas behind this clause are simple: Allow people to make money off their work for a short time to incentivize invention, but limit that time so that people have to continue creating so past creations can be used by others to spur new innovation. The original term for a copyright set by Congress? Fourteen years, renewable once. Not everyone at the time even pursued copyright. Benjamin Franklin famously refused to patent his inventions, claiming that “as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.”

We’ve come a long way since then. For a work published after 1978, copyright protection lasts the life of the author plus seventy years. For works published between 1922 and 1978 things are a bit more complex, but the rule is generally ninety-five years after the publication date. If the work is anonymous or made for hire, it lasts either ninety-five years from publication or one hundred and twenty years from its initial creation, whichever expires first. A thriving public domain — an artistic commons where artists are free to converse with the works of the past — is necessary for the arts to flourish and for the past to be preserved cheaply for the schools and libraries of the future. Thanks to the various copyright extension acts, we are starving this artistic and intellectual commons. Due to the retroactive nature of the Copyright Term Extension Act in 1998, no works will enter the public domain until 2019. Given that the 1998 bill came roughly twenty years after the last copyright extension and that corporations rely more and more on intellectual property for profit, there’s no reason to believe that copyright won’t be extended again prior to the 2019 deadline. (A partial list of the works that could’ve entered the public domain this year can be found at

Concurrent with this is a more problematic development for artists. Our output has gone from being our creations to being our intellectual property. Instead of art being a living thing, a thing that we create and whose creation we trace in part to the world (and other artworks) that surrounds us, and thus give back to the world, what we create is now a house to be protected from thieves and invaders, rigged with alarms and (preferably) surrounded by a moat, forever.

I’m no originalist, and I think it’s long past the time that we should set nostalgia on an ice floe and push it out to sea, but I prefer the original ideas behind copyright to what it has become today. I believe that creators should have some authority over and ability to make money from their creations, I just believe that time (and that authority) should be more strictly limited than it is now. Copyright has gone from something that encouraged creativity to something that restricts it, and it has poisoned our thinking about collaboration and originality along the way.

This shouldn’t surprise us. Ever-expanding intellectual property protections are in the best interests of people seeking to make money, not people seeking to make (or, especially, experience) art. Being unable to use a ubiquitous American icon like Mickey Mouse is of no benefit to visual artists. It is in no composer’s interest that creative quotation of other people’s work — a frequent practice in classical music — is strictly forbidden under current law, particularly when rights are held by publishing companies rather than the music’s actual writers. In a recent outrageous case, the creator of the character Ghost Rider must account for any money he has made off of selling drawings of his creation, because Marvel, not he, owns the character (

In theater, things are getting similarly out of hand. We work in a system where we lionize Shakespeare — who lived in a time without copyright, lifted stories wholesale from other sources, and likely had uncredited collaborators — while expanding the idea of intellectual property to cover not only text but interpretation. Now, directors sue for copyright infringement of their concepts while heirs to various estates limit the range of interpretive choices that productions can make.

The ever-expanding, ever-renewable copyright is part and parcel of a wider problem. Despite the fact that we work in the nonprofit sector, and despite our public espousals that theater is a living thing, a process, a mercurial beast that draws its strength from the culture surrounding it and speaks back to that culture, we also treat our work as property to be owned and protected. What is “premieritis” after all, if not a logical outgrowth of the values of ownership, of the idea that something becomes worthwhile only when other people can’t have it?

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 US, 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 Bearers 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 Todd London’s 2009 book, Outrageous Fortune: The Life and Times of the New American Play, 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 percent of that coming from licensing fees and only 9 percent coming from production royalties.

I don’t think there’s much we theater artists can do about the legal realities that shape our industry, but it is time to reexamine and reinvent the way we think about the art we make. We must move away from the inaccurate and debilitating image of the writer as sui generis visionary and recognize that our work draws heavily on influence, that the true meaning of originality is in how we approach, arrange, reconfigure, and create out of the materials the world has given us. That our work exists in dialogue with other work, and with the people in our lives. That our work has parents and, hopefully, children.

Theater artists labor in the second oldest written art form in the Western World. Our history is one of the glories of influence, of the artistic and intellectual commons, of seeing works reexamined, reinterpreted, recombined, and adapted, often without permission. This makes us uniquely well suited to search out and create new philosophies and industry norms that embrace art as a gift that arises out of our culture and one we, in gratitude, eventually give back.