Left over from the weekend’s reading is this fascinating account of the emerging conflict between playwrights and their not-for-profit producers. Playwrights, like other artists, struggle to find venues to distribute their work. Nonprofit theaters, struggling to find revenue, require that the authors of the plays that they produce commit to pay a continuing royalty based on revenues from future productions. This can help a little-known author get a little-known play off the ground, but if the play succeeds, layers of royalty obligations — a covenant running with the script, you might say — may put even a “successful” playwright back where she started: struggling to make ends meet.
The debate over subsidiary rights has intensified in the past decade, as an increasing number of regional and local theaters, festivals and even workshops have begun demanding a slice of the subsidiary-rights pie.
“Let’s say a young playwright gets his work premiered at Podunk Holler Rep,” said the agent Peter Franklin . . . “They give him a standard contract, nonnegotiable — and they take 2.5 percent. Then the play goes on to Mid-City Rep in a major city. So we have to peel off another 5 percent for them. Then the play makes it to New York Institutional Rep and they want an even bigger chunk” — usually between 10 and 40 percent.
Playwrights are especially concerned that top asking rates at some of New York’s prestigious nonprofits . . . have climbed to 40 percent, the rate commanded by commercial productions.
“Nonprofits have looked to the commercial theater and said, ‘If they get 40 percent, why shouldn’t we?” Mr. Nelson said. “But the mission of a nonprofit theater is in part to produce new work. That is what it does — it’s not doing something extraordinary. And it is on the basis of that mission that the theater raises money from donors.”
These are questions of contract, not copyright; if the playwright defaults on paying a claim for subsidiary rights, the claimant has a lawsuit for damages, not for an injunction. Right? But I suspect that a well-drafted contract (or a poorly-drafted one, depending on your point of view) could support either kind of claim.
It is interesting to see that the quasi-economic, quasi-ethical claims frequently associated with copyright contests are not limited to copyright contests at all, but inhere in contexts of producing and distributing creative work. Heavens to Mergatroid, as a character who was fond of theatrical metaphors might say.