Copyright may seem like a pretty dry subject, but the court cases that lead to the development of the law and theory surrounding copyright law can be pretty interesting. HowlRound posted the transcript of Michael Lueger’s podcast discussion with Dr. Derek Miller about some of the early copyright cases that applied to theater and music performance.
One of the interesting cases they discuss is competing expressions of the iconic melodrama train track scene where someone escapes just as the train arrives. Apparently playwright Augustin Daly was the first to write such a scene and playwright Dion Boucicault copied the idea. The courts ruled in favor of Daly saying that even though every other element of Boucicault’s play was different, the common action was key to the drama and thus was protected.
(By the way, according to Atlas Obscura, contrary to the trope, Daly’s play, and even many silent films, had a man on the tracks and the leading lady rescuing him.)
Interestingly, when the guy producing Boucicault’s play tried to reach an early settlement by licensing the train effect from Daly’s show, “The court actually says, no, no, no. The effect is not something you can copyright, … You can’t own the effect, but you can own the action.”
This general concept holds to today where you can copyright the expression of the idea, but not the name or the idea itself. You can, of course, trademark names and patent effects, but those are different types of protections than copyright.
Another fascinating situation happened when Thomas Hamblin’s Bowery Theatre was doing poorly but Charles Thorne’s Chatham Theatre around the corner was doing great. Thorne was getting ready to do a play by Joseph S. Jones so Hamblin goes to Jones and makes a deal to open Jones’ play on the same night in an attempt to put Thorne out of business. They were planning to have Jones sue Thorne “for violating your [Jones’] rights to produce the play.”
However, the courts say since Jones was working for a Mr. Pelby when he wrote the play, Pelby had the right to sell the performance rights to Thorne.
But what came next is really interesting:
I’ve got a lot of evidence here from the New York Herald, which goes all in for Thorne, and they argue that by trying to shut down Thorne’s production, Jones and Hamblin of the Bowery Theatre are limiting the audience’s ability to compare the artistic products at the Chatham and the Bowery. It’s sort of a free trade argument that they’re making.
In other words, according to Thorne and to the Herald … Thorne actually writes an editorial that appears in the Herald … if the productions are allowed to compete with each other, both theatres are going to do even better artistic work than they would otherwise. They say Hamblin is trying to shut down artistic competition and to give you a bad product, but we’re in favor of a good product and letting Thorne do the play. Legally, actually, the case is sort of a weird, unimportant footnote, in terms of the legal precedent it establishes, but it helped in studying this case to teach me how theatrical copyright battles get both parties thinking about the relationship between a work’s artistic value and its monetary value.
It is interesting to me that they get into this argument that having competing versions of the same production going on around the corner from each other is providing people with a choice and opportunity to decide which is the better production.
Nowadays, when you try to license performance rights you can run into all sorts of restrictions because a 2000 seat venue 200 miles from you planning to do the same production 12 months after you mount your production in a 200 seat theater.
While that is kind of extreme, I think the basic idea that people are willing to pay a lower price for a discount version of the same product and cannibalize your potential audience is a real concern.
Even in 1841 when Thorne and Hamblin were butting heads, if people wanted to see a show a significant number would probably accept lower production quality for 25 cents at the Bowery versus paying $1 at the Chatham.