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Derivative Works vs. Performances

I was moved to mention Derek Bambauer’s very interesting article on Abolishing the Derivative Works Right in Copyright after seeing a couple performances by the theater company Elevator Repair Service. They are noted in legal circles for a ridiculous battle with the Fitzgerald estate over their avant-garde performance of every word of The Great Gatsby in “Gatz.” According to an NYT article,

“Gatz” has been on the international avant-garde circuit . . . . But despite the encouraging notices and adoring producers, New Yorkers will not get to see this production — at least not in the near future. Out of courtesy to another [more traditional] version of “The Great Gatsby,” the F. Scott Fitzgerald estate barred Elevator Repair Service from presenting “Gatz” in its hometown. “We are concerned that ‘Gatz’ would be confused with the other ‘Gatsby,'” said Phyllis Westberg, an agent for Harold Ober Associates who represents the Fitzgerald estate.

Yes–theater-goers are really going to confuse a six-hour-plus marathon reading of the novel in an East Village garret with a traditional adaptation on Broadway. One more example of risk-aversion and rights accretion, I guess. But it would be terribly sad to see other estates stop this group’s performances. Their verbatim re-enactment of a Jack Kerouac/William F. Buckley confrontation was hilarious, and I’ll never think of William Faulkner’s The Sound and the Fury the same way after seeing a truly inspired workshop session based on the first, Benjy section.

But this brings me to one copyright question: how would Elevator Repair Service’s work be treated under section 101 (definitions) of the Copyright Act? They say every word of each of these works, so on the one hand they are performing them. On the other hand, the adaptation is so creative and multilayered that it would seem almost unfair not to call them more than performances–i.e., derivative works. I don’t want to try to recognize something like Edward Einhorn’s odd claim that he had a copyright in the “blocking and choreography” of a play he directed. ERS’s performances appear to me a lot more creative and worthy of recognition than that.

PS: Here’s an interview on the topic & photo source.

6 thoughts on “Derivative Works vs. Performances”

  1. Assuming you agree copyright owners should be able to license public performances of their work (and maybe you don’t, but then that goes way beyond this particular dispute), how does this not qualify as a public performance? Even if there’s something new added in the way it’s read, surely that’s true of *all* non-pre-recorded public performances. But plays are the archetypal work with a public performance right. There’s no rights accretion here, it’s within the umbra of the copyright.

  2. I noticed your post, and I just wanted to point out that, though I know opinions can differ regarding the director’s copyright issue, I do not believe Nancy McClernan’s article gives a fair and accurate representation of any of the facts regarding our case. I wrote am essay about my thoughts regarding director’s copyright on my web site, before Nancy published and publicized her essay (which doesn’t, in my opinion, so much express as opinion as it attempts to villify me). You can find my essay at As for the many claims in Nancy’s article that go beyond the intellectual issue, I can only state that they are misleading at best, and completely fabricated at worst.

    Regarding Gatz, I do believe that performances should not be blocked except as an absolute last resort, but that’s my personal artistic (and perhaps moral) belief. Copyright, I think, should exist to ensure proper compensation, not to block creativity. However, there’s no question, if the ERS were using the text of the book verbatim, that the estate had the right to bar the perforance. Do I really think Gatz was any threat to the dramatization of the Great Gatsby? No. Should the book be in the public domain? Yes, definitely yes. The law extending copyright in a creativity killer. But as the law stands, what it says is clear…

  3. thank you Google news alerts for tipping me off to this.

    I’m the director of GATZ, NO GREAT SOCIETY, and the open rehearsal of the piece based on THE SOUND AND THE FURY. I welcome this discussion because, ever since we first clashed with the Fitzgerald Estate, I’ve become very interested in copyright law and all its implications, especially with regard to what we’re up to in ERS.

    I’ll stay on the sidelines for now but I will add this clarification:

    ERS is performing these works with permission.

    The Fitzgerald Estate won’t let us do GATZ in NYC and that is a continuing source of frustration for us, but we are doing it just about everywhere else.

    — John Collins

  4. Could (should) copyright judges invent something similar to the reverse doctrine of equivalents when applying substantial similarity analysis? That is, a work could infringe as a matter of black letter law, but a finding of noninfringement might be warranted because the defendant’s work represents a significant and material advance over its predecessor — the new dominating the old, as it were — promoting the Progress of Science, rather than interfering with the copyright owner’s incentives to produce and distribute the original. Or, perhaps a la mechanical licensing, the copyright owner should be allowed compensation but not the prospect of an injunction.

  5. >Could (should) copyright judges invent something similar to the >reverse doctrine of equivalents when applying substantial similarity >analysis?

    You don’t need me to tell you this idea is completely impractical — who are judges to make that call? — but I’d gladly apply for a job as a District Equivalence Judge (presumably they’d be hired based on taste, critical ability, breadth of reading and cultural literacy).

    Cool idea, though. If you write a better Harry Potter… court finds in your favor!

  6. All I did was tell the truth about Edward Einhorn’s activities – all of it backed up with evidence, including court transcripts and exhibits. If these things “villify” Edward Einhorn, Edward Einhorn has only himself to blame.

    And BTW – Einhorn and his brother managed to weasle out of cancelling his unauthorized derivative copyright on my play TAM LIN – but fear not, Einhorn – it WILL be cancelled and very soon. And once more I will “villify” your life by telling everybody the tale of how you (and your brother) shamefully behaved.

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