From Book Page to Musical Stage: Three Thoughts on Acquiring Underlying Rights for Theatre

roadway has long embraced a variety of source material to inspire generations’ worth of our best-loved shows. Over the last decade, six out of ten winners of the Tony® Award for Best Musical have been adapted from an array of novels, films, musical songbooks and even comics. Kinky Boots, Once and Billy Elliott all started their lives on the silver screen, and Frank Wedekind’s 19^th Century play Spring Awakening was adapted for the musical stage roughly one hundred years after first publication. As the musical theatre canon expands, it is as important as ever for writers, composers and lyricists to understand the legal framework that is required when creating a stage adaptation or other theatrical piece based on existing material.

Typically, the relationship between the author of the “underlying work” (i.e., the source material) and the stage adaptors, is governed by an underlying rights agreement. This is an agreement that sets forth the terms relating to various key aspects of the deal, including:

• creative elements: how much the adaptors can change or deviate from the underlying work;
• financial terms: the royalties payable to the author of the underlying work; and
• the option period: the amount of time that the adaptor is granted to write/compose and present his or her piece.

Unfortunately, it is all too common for creatives to start writing their next project based on an underlying work before obtaining the right to do so, only to find out later that the underlying work is not available, or has been optioned for stage adaptations by another party. Such situations can understandably leave writers despondent and frustrated.

Seeking the advice of an experienced lawyer who can assist in the smooth transition from page to stage is highly recommended. But before meeting with an attorney, asking three fundamental questions at the outset may save time and money in the long run.

• Is the underlying work in the public domain? Works in the “public domain” are works that are not (or no longer) entitled to copyright protection (for a variety of reasons) and generally do not require permission to use as source material. Often a work falls into the public domain because the legally permitted period of copyright expires. It is for this reason that Shakespeare, Moliere and Sophocles are often reinterpreted for contemporary audiences – the original works are in the public domain. Of course in the alternative, if a work is not in the public domain, the author or the author’s estate, or other successor, retains the right and discretion to protect and exploit the material under copyright law. Determining whether a work is in the public domain can sometimes be difficult depending on the format of the underlying work (g., novel, motion picture, poem, photograph, etc.), the country or origin (a work can be in the public domain in one country but not another), and whether the work has ever been published. Moreover, some non-U.S. works enjoy idiosyncratic forms of protections, such as JM Barrie’s play Peter Pan. In 1929, Barrie granted all performance and adaptation rights in Peter Pan to the Great Ormond Street Hospital (later known as the Hospital for Sick Children) as a charitable donation. The play fell into the public domain on December 31, 1987 and thus the hospital was no longer able to collect royalties. In response, in 1988, the British Parliament specifically granted the Hospital for Sick Children a perpetual royalty so that the play could continue to support generations of patients to come. Under normal circumstances, however, a helpful general resource on the public domain in the United States can be found through Cornell University at the following website: http://copyright.cornell.edu/resources/publicdomain.cfm.   This table is periodically updated, and while it is a good basic guide, any number of unique circumstances can affect the protectable status of a work, and for this reason it is important to have an attorney provide the final analysis and determination of an underlying work’s public domain status.
• Are you trying to adapt a work, or do you merely have a similar idea? Despite common misconceptions, copyright law does not protect ideas, but rather the tangible expression of those ideas, in order to avoid granting any one person a monopoly over broad – often universal – concepts, because that would discourage creativity which copyright is intended to promote. For example, one cannot protect the idea of a story featuring a middle-aged man who impersonates a female, but can protect the scripts and motion pictures for Doubtfire and Tootsie, both of which are fixed and tangible creative works. In other words, similarities in ideas or concepts between a new work and an existing work will only require a license for underlying rights when the new work draws from the specific expression of the underlying work. Unfortunately there is no bright line rule between an idea and the expression of that idea, and the analysis shifts according to the particular details and circumstances. This is another reason why consulting an experienced copyright lawyer is advisable.
• Is there already an existing adaptation of that work? Often someone seeking the underlying rights to a specific work will try to secure exclusivity for their adaptation. Depending on the terms of the clause, exclusivity will prohibit the author of the underlying work from permitting multiple stage adaptations to the same source material, which is why there are not two or more different versions of Wicked on Broadway, and is why the cost of some underlying rights can be quite high. Not all grants of underlying rights are exclusive, of course, and there are numerous examples of theatrical works that share the same underlying source material. For instance, Joseph Moncure March’s poem The Wild Party serves as the underlying material for both Michael Jon LaChiusa’s Broadway show, and Andrew Lippa’s Off-Broadway show of the same title. However, if there is an already existing adaptation of the targeted underlying work, there is a strong, but not definite, chance that the rights will not be available. While it never hurts to inquire, this kind of preliminary analysis can certainly assist in managing expectations in respect of the availability of material.

Answering, or at least having an understanding of these questions can go a long way to making preliminary decisions that could save time and energy in a highly competitive business. Creatives not necessarily versed in the legal and business aspects of theatre will not only learn more about this business, but will be able to seek out the rights they need, to write what they want.