Gender trouble and copyright in the realm of theatre – Dr Luke McDonagh, Lecturer in Law

David Mamet’s decision during this past summer to terminate performances of ‘Oleanna’ by the Alchemist Theatre in Milwaukee after a male actor was cast in a female role brings to light a number of crucial issues related to theatrical practice and copyright law.

First, not for the first time it brings up important questions about the representation of gender roles in theatre – questions that have been raised most famously in the past in the context of all-female productions of ‘Waiting for Godot’ that have run into legal objections made by the Samuel Beckett estate.

Secondly, it neatly illustrates the crucial power struggle that lies at the heart of the theatrical process; that is, it exposes the tensions that commonly occur between the playwright and those involved in performance – primarily, the director and actors – concerning the creative direction of the play.

Thirdly, the case highlights the crucial importance of copyright for authors of theatrical works, because it is copyright law that gives the playwright the ability to withdraw the performance rights if he or she objects to changes made by directors and performers.

With respect to this first aspect – the representation of gender on stage – the Oleanna case brings to mind Judith Butler’s famous argument that the traditional delineation between male and female gender roles is not purely determined by biological human characteristics; in fact, it is in practice largely performative, with both men and women ‘performing’ their gender roles in accordance with accepted societal norms. If Butler is right, then why should it matter who plays what gender on stage?

Indeed, there is much precedent for gender-swapping in theatre – it goes all the way back to Greek theatre, to Japanese Kabuki, to Shakespeare’s plays – and beyond. In the recent past we have seen an acclaimed all-female version of Julius Caesar at the Donmar Warehouse in London, Mark Rylance taking on the role of Olivia in Twelfth Night on Broadway, as well as a female Hamlet, played by Maxine Peake. Earlier this year, Emma Thompson called for more female actors to be cast in male roles. Clearly, this is a pressing issue, and it is not going away.

A play, after all, is a profoundly performative work of art, and as Thompson recently argued, the dramatic role can be imbued with life by whichever actor takes on the part – regardless of his or her gender. Could the Alchemist Theatre’s use of a male actor to play ‘Carol’ in Oleanna – Mamet’s searing account of sexual harassment allegations made by a female university student towards her professor -have revealed even more layers of meaning within the text? We, as the audience, will never know now that the performance run has been cancelled.

This highlights clearly the second element – the crucial power struggle that lies at the heart of the theatrical process. An article I published in the Modern Law Review in July this year – ‘Plays, Performances and Power Struggles‘ – discusses this in great detail, and makes reference to twenty qualitative interviews I carried out with playwrights, directors and actors during 2011-2013. I argue that the power struggle between the playwright and the director/performers occurs precisely because the playwright relies on the performers to bring the text to life: without the performers the work written by the playwright is just a text – literature perhaps, but not truly a ‘play’. Indeed, as the great philosopher Walter Benjamin once said, the audience cannot truly perceive the play’s aura outside of the actors’ performances. For this reason, quite understandably, playwrights often feel anxious about whether the performance of the play will truly reflect the core intended meaning of the author.

Thus, David Mamet is not alone in his artistic insecurity. As noted above, the Beckett estate gained notoriety over its refusal to allow an all-female production of Waiting for Godot to take place in France, a decision rubber stamped by the French Courts, who strongly emphasised the importance of Beckett’s rights under copyright over the rights of the performers (perhaps influenced by France’s famous ‘cult of the auteur’). And it is not just gender that can cause controversy – race too can be the subject of theatrical dispute, as seen in 2011 when Bruce Norris withdrew the rights to a Berlin performance of ‘Clybourne Park’ after a white actor wearing blackface make-up was cast in an African-American role (use of blackface make-up is relatively common in German theatre, where it does not have the ‘minstrel’ connotations it has in the Anglo-Saxon world).

It is at this stage, when the playwright and the director/performers are unable to resolve their disagreements that the third element – copyright – comes to the fore. Copyright gives the playwright the power to withdraw the performance rights to the play. The crucial question is as follows: in a collaborative, performative medium such as theatre how much power should the law give playwrights to interrupt the creative acts of the director and performers; and should the law also give corresponding rights to the director and performers?

In fact, there is some precedent for the argument that directors and performers do actually have legal rights that must be taken into account when these disputes occur. In 2006 the Italian courts came to a different decision to the French courts concerning a different all-female production of Godot to be performed by the Pontedera Theatre. In allowing the performance to go ahead, the Italian court took into account not only the rights of the playwright under copyright, but also the freedom of expression rights of the director and performers under the European Convention on Human Rights. On balance, they court felt the performance should go ahead.

It is also notable that when copyright expires – 70 years after the life of the author – anxieties about the play’s aura seem to dissipate. Consider the many radical versions of Chekhov or Shakespeare that are put on every year – and crucially, that regardless of whether the production is acclaimed or panned neither the status of the author, nor the works of art themselves, diminishes. In fact, there is some evidence that the expiration of copyright can provoke radical theatrical creativity – after copyright expired in James Joyce’s works at the end of 2011, a plethora of theatrical productions were launched in Dublin in early 2012, and a new radio production of Ulysses was performed by the BBC. But for plays that remain in copyright – and which will remain so for many decades to come for living and even recently deceased playwrights – following the example of the Italian courts seems appropriate. After all, if both gender and the play itself are inherently performative, then it surely makes sense to not only take into account the rights of the playwright, but also the freedom of expression rights of the performers themselves.

Dr Luke McDonagh is a Lecturer in Law at Cardiff University. His research interests include intellectual property rights, copyright and patent litigation. Read more about Luke’s research here