After Copyright Clash, “Chicago” Plays Off-Broadway

CommuniK Commentary by K. Matthew Dames

Earlier this week, the New York Times reported that Herbert H. Lehman High School in the Bronx will be allowed to perform a production of the musical “Chicago” after Samuel French, the show’s licensing agent, relented under pressure from members of the City Council and the city’s Public Advocate. The New York Daily News initially broke the story that Samuel French had threatened legal action against Lehman because the high school had not received permission from the licensing agency to perform the production.

“Chicago” remains in production, and has been playing on Broadway for more than a decade. In 2003, the movie adaptation of the musical won six Academy Awards, including Best Picture and Best Supporting Actress (Catherine Zeta-Jones). It was the first musical to win the Best Picture award since “Oliver!” in 1968.

There are several things about this story that disturb me. The most obvious is its uncanny similarity to the “Happy Birthday” incident.

In 1996, the American Society of Composers, Authors & Publishers (ASCAP) told summer camps that they had to begin paying licensing fees to use or perform songs in its catalog. (Like Samuel French, ASCAP collects license fees on behalf of its members.) Further, news outlets were able to get a high-ranking ASCAP official to state on the record that the music licensing agency would sue organizations that did not comply with the new policy.

Somehow, the Girl Scouts became the poster child for the organizations that would be affected, and quickly the story developed into “Big Music Is Keeping the Girl Scouts From Singing.” After a torrent of poor publicity, ASCAP backed off this stance, ultimately saying that the matter merely was one big misunderstanding: it never intended to keep the Girl Scouts from paying royalties, although an ASCAP spokesman suggested it would continue to seek license contracts and royalty payments from “large” camps.

I thought then, as I do now, that the issue never was a misunderstanding. Instead, ASCAP was floating its policy change as a trial balloon and hoping folks either would miss it, or react in some way that indicated some level of public opinion. This story was much more appropriate for Billboard or The Hollywood Reporter, but neither of those publications have the Journal‘s circulation reach. In order to serve as a trial balloon and to get maximum effect, ASCAP had to place the story in a respectable, mainstream news outlet like The Wall Street Journal, the Times, or the Washington Post.

If I recall correctly, the Journal initially broke the story about ASCAP’s policy change. If you know anything about how journalism works, you’ll know that neither the story’s appearance nor the publication were accidents. Business and government “place” stories all the time with the press, often to gauge public opinion about a policy change. This is a time-honored practice of journalism, and is less expensive than having a firm like Zogby International work up a poll.

Of course, this practice should make a discerning reader wonder about access to the press, since a story cannot be placed unless one doing the placing has access to news representatives with enough influence to place the story. And herein lies my second problem with this situation: where the Girl Scouts and (apparently) Lehman High School were connected enough so that their story could play in major news outlets (prompting the predictable outcry), there are literally millions of organizations and citizens that cannot place their stories because they do not have similar access to the press.

Certainly, the placement and distribution of this story in the Daily News and then the Times played a tremendous role in letting Lehman off the hook for what would have been an egregious act of copyright infringement. (If you look at the Daily News story linked to below, one of the press photos for the production even includes the bold red “Chicago” logo. This suggests the school had implemented the logo for its own promotional purposes, which is both a potential copyright and trademark infringement.)

The access issue clarifies a reality of life: for some, the rules do not apply. The Girl Scouts and Lehman High School were able to slide away from their copyright obligations because they were able to get their complaints aired in the press, and then before city politicians. A demonstrated ability to air one’s complaints in the press is a show of power.

Without the press accounts, Lehman’s “problem” doesn’t come before members of the City Council or the Public Advocate. But the real question, though, is what about Lehman’s circumstances makes it so unique that it would not get — or at least seek — permission to perform “Chicago”? The Times, at least, addresses this issue.

The Shubert organization (which owns the Ambassador), the producers, Fran and Barry Weissler, and most important, the songwriter, John Kander, and the estates of the lyricist, Fred Ebb, and the book writer, Bob Fosse, had granted permission for a single unauthorized, unlicensed performance at the school. …

But the process by which it came about and what it means has raised some questions. What about all the schools that had followed the rules, applied for a permit and been turned down?

“We have on file a whole bunch of applications in the greater metropolitan area who want to do the show, have made the proper application and have been denied,” said Charles Van Nostrand, the president of Samuel French.

The Times account confirms that no one at Lehman had applied for permission to perform “Chicago,” either with Samuel French or Music Theater International, a separate company that licenses permissions for off-Broadway concerns (like Lehman) to perform musicals. “No one at Lehman High School made the application and the principal, Robert Leder, said he had not recalled having to apply for anything in 27 years of putting on high school musical events,” reported the Times.

“I really didn’t know. I really didn’t know the protocol,” said Leder in a NY1 report. “I’ve never seen anything in writing that says before you do a production in a school you have to do A, B, C and D. Maybe I was remiss – and I might have been remiss in that I never saw it. I never remember seeing it.”

I find it disingenuous that a New York City high school principal with nearly three decades of experience would fail to consider that his school’s performances of popular Broadway plays — in this case, a play that is still being performed in the next borough — is not subject to copyright, and by extension, subject to some permissions procedure.

I could address the fact that Samuel French routinely denies requests by other high schools that seek permission, a practice that seems unduly restrictive. Further, I could address the need for legislation in this area, something similar to music’s compulsory license, whereby a copyright owner must grant permission to a party that wishes to use its work. But both issues deserve a more expansive analysis that is beyond the scope of this column.

The real issue here is how this story got in the news in the first place.

Little plays better in New York than power. Call me jaded, but I suspect Lehman thought it could slide by unscathed without a permission, except this time, the school got caught. And instead of standing in line and seeking permission — a permission that, apparently, was not forthcoming — it got political and went to the press. And it got its desired result: its show will go on.

But make no mistake: this is not an issue of an “innocent” bunch of high schoolers being threatened by an arm of Big Content. It is about a wolf in sheep’s clothing playing good, old fashioned hardball politics, with the press as a complicit ally.

William Sherman and Erin Einhorn. The Show Will Go On! New York Daily News. May 10, 2006.

See also:

Milanee Kapadia. High School “Chicago” Production Will Go On As Planned. NY1. May 9, 2006.

Campbell Robertson. That’s Show Biz (and a Lesson in Copyright Law). The New York Times. May 9, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC. CopyCense and CommuniK. are trademarks of Seso Digital LLC.

Written by sesomedia

05/12/2006 at 08:55

Posted in Uncategorized

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