You Couldn’t Tie People To Railroad Tracks Because It Was Copyrighted

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.

The Fine Line Between High Quality Data Collection And Stalking

The marketing director at my new job was discussing the potential of using geofencing with me today and then lo and behold, the first article on my social media feed when I got home contained a link to an article on that very subject.

Geofencing can be used to track someone’s movement by where they carry their cellphone and send messages to them based on their behavior. As the article on Tao of Sports explains,

Geofencing also follows customers around for up to thirty days, which means beyond the initial purchasing period, it can also showcase whether the fan receiving the message then went to the stadium or not. With addressable geofencing, conversion zones can be setup as well. So if a fan crosses into a conversion zone, say a specific venue which advertised to them within the last thirty days, it will show on the report.

[…]

For secondary brokers, geofencing technology also adds an additional way to catch fans as they are entering the stadium parking lot, by hitting their phone with a last minute advertisement for concert or sports tickets. Image getting them right before they hit the window with a credible advertisement that beats the venue price.

Like any technology tool, geofencing is something of a double edged sword. It can provide you with much more accurate data about the way people are behaving than asking them about their habits or trying to observe it in other ways. But there is also that creepy Big Brother is Watching element.

The tweet by Roger Tomlinson that brought the article to my attention notes that geofencing is not legal in Europe without permission.

Last month when I was suggesting conference session topics for the Non Profit Technology Conference, I alluded to the issues surrounding geofencing in one of my topic ideas:

Ethics of Using Geofencing For Marketing  – i.e. I can geofence a local theater and target people based on the idea that they enjoy attending performances or with the intent of stealing the audience.

I don’t doubt that the use of geofencing or something like it will become increasingly prevalent. I suspect that a number of bad actors will cause people to become very protective of how their movements are tracked to the point that even if a law isn’t passed requiring you to ask for permission, in practice that is what you will have to do in order to gain the data you want.

I Don’t Know What You Need To Know Because I Know So Much

This summer I have been seeing a lot of California Symphony Executive Director Aubrey Bergauer popping up in places like videos of conference talks she has been giving. It has been over a year and a half since I wrote about her Orchestra X project so I figured it was time to revisit and reacquaint people with the work she has been doing.

Recently she had a blog post following up on the conversations her organization has been having with the communities they serve. She mentions a theme I keep seeing in formal survey results and collected anecdotes — audiences aren’t clamoring for a change in programming as much as they are intimidated and confused by the decision and experience of attending a cultural event.

The bigger issue, she says, is that those of us on the inside forget what it was like being entirely unfamiliar with information or an experience. Even when we are faced with a new-ish experience, our past experiences allow us to make logical leaps that total novices can’t.

What we learned was that a “basic” level of understanding about the symphony or classical music does not exist among newcomers. Some people didn’t even know the names of the instruments in the orchestra, which to me, the person who had played an instrument all growing up and who wanted to manage a symphony since age 16, was pretty much unfathomable (remember hindsight bias?). The good news, we discovered, was that this group of smart people desperately wanted to learn about everything related to classical music though. And through the discussion we learned that the way we layout and present information on our website made it very difficult for them to do that.

[…]

Virtually every person in the room expressed the sentiment of “awe” when describing the art they saw and heard. No one said, “I need a shorter concert,” or “I need to hear more movie music.” They very much wanted to learn about all facets of the repertoire and were emphatic that the art is incomparable.

Bergauer says that now that California Symphony stopped stressing about programming mix and started focusing on retention versus new audience acquisition. Last season, their new attendee retention rate was over 30%.

Take a closer look at the post. She talks a little more about how rich experiences make us unable to anticipate what new attendees really need to know in order to enjoy themselves.

Our Market Is Everybody (Just Some More Than Others)

Broadway Producer Ken Davenport is singing my song. I know you know this tune, but based on my experience, it bears reiterating.

He talks about how he often gets pitched ideas for new Broadway shows.

One of my stock questions to anyone pitching me anything is, “Who do you think the audience is for your piece?”

This question not only helps me determine whether the Pitcher and I are on the same page, but it also gives me some insight into the business acumen of the person who wants me to get involved in their project.

The red flag answer to this filtering question of mine?

“This show is for everyone!”

While I appreciate the bullish answer, the fact is . . . no show is for everyone. And the more you try to make it for everyone, the more you water it down and make sure that it’s for no one.

[…]

…Your first marketing exercise when you embark on producing a show or building a career is as follows.

  1. Identify exactly who your audience is.
  2. Find that audience and exploit them and only them.

If your audience spreads to “everyone” from there then great, but it’s much easier to market to a niche than it is to the world.

I am sure pretty much everyone has run into a similar pitch or had staff/board members make a statement about a show being for everyone. What is often frustrating is that many people who say this own or work for businesses which are pretty clear on who their customer base is and isn’t.

Even funeral homes which about 98% of us will likely end up patronizing on behalf of deceased loved ones likely each have a demographics to which they appeal more than others.

Davenport’s advice to have a focus that moves from the specific to the general is a pretty good guideline when it comes to marketing decisions.

I suspect people feel that they are conceding a flaw in the product if they admit it isn’t for everyone. Saying a certain group will REALLY like it and everyone else will probably like it to might provide the psychological out needed to identify those it is realistically for.

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