Book Review: Performing Copyright: Law, Theatre and Authorship

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Performing Copyright: Law, Theatre and Authorship. By Luke McDonagh. Oxford, U.K.: Hart, 2021. xxix, 202 p. Includes bibliographic references, table of cases, table of legislation, and index. ISBN 9781509927036 (hardcover) $135.85; ISBN 9781509949168 (softcover) $69.75; ISBN 9781509927050 (ePUB & Mobi) $108.68; ISBN 9781509927043 (PDF) $108.68.

Reviewed by Dominique Garingan
Library Manager, Calgary
Parlee McLaws LLP
In CLLR 47:2

Theatre as an artform often showcases collaborative, innovative, and artistic displays, all of which meld seamlessly into entertainment. However, this artform also raises some intriguing intellectual property issues. These issues set the stage for Luke McDonagh’s Performing Copyright: Law, Theatre and Authorship, a book that explores the relationships between the ownership and authorship of dramatic works, the performative aspects that manifest and enrich dramatic works, the collective and collaborative practices of theatre communities, and the unique realities and challenges these practices bring to copyright and performance rights.

Performing Copyright is a thesis on intellectual property law and the evolution of its application to modern theatre. McDonagh focuses the study on theatre in the U.K. and begins the discussion of law, theatre, ownership, and authorship in the Elizabethan and Jacobean eras and ends it in the present-day U.K. theatre community. Throughout the book, McDonagh discusses jurisprudence and significant legislation, such as the Statute of Anne; the Copyright Act 1911; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations; and the Copyright, Designs and Patents Act 1988.

Performing Copyright comprises six chapters, each containing multiple headings and subheadings. Alongside historical and modern-day explorations of ownership, authorship, joint authorship, infringement, moral rights, and attribution, McDonagh incorporates findings from an empirical study consisting of 20 interviews conducted with members of the U.K. theatre community. The book reads like an engaging dissertation, with each chapter providing references to case law, legislation, academic works, and commentary relating to theatrical performance. Despite its shorter length, the book excels in finding tools, containing a detailed table of contents, table of cases, table of legislation, index, and extensive footnotes.

After conducting a search for similar publications, I believe Performing Copyright fills a gap in academic scholarship pertaining to theatre and the law. While other works on copyright, art, and the law currently exist, Performing Copyright focuses almost exclusively on dramatic arts and the areas of conflict associated with performativity and authorship in historical and modern theatre. Performing Copyright does an insightful job of exploring the evolution of normative theatre practices in tandem with the substantive law governing the protection and exclusivity of dramatic performances as works.

In Performing Copyright, McDonagh asserts that dramatic performances may be inclusive of non-textual works of creativity, authorship, character development, and story development that extend beyond the original work and intended meaning of playwrights. Certain performances may lead to an enrichment of the work and can warrant attribution and creative delineation for actors or other collaborators. McDonagh takes readers into the organic and collaborative normative practices within theatre that complicate demarcations of authorship as they are more traditionally known. For instance, in creating an original character, McDonagh explores how of the roles of actor, playwright, director, deviser, and dramaturge occasionally amalgamate, and how the responsibilities of individuals, particularly in smaller theatre companies, may develop organically based on need to produce the work onstage. These normative practices muddle the attribution process required to delineate, protect, and monetize an individual’s artistic contribution.

For those seeking to learn about the empirical study, McDonagh provides a section containing its scope, methodology, and limitations in the introductory chapter and an annex containing the interview questions. Insights and findings from interviews are discussed throughout the chapters, adding second-hand, contemporary accounts of the book’s propositions. Interview findings shed light on various issues, such as how copyright infringement legislation and regulation seem incompatible with theatre’s culture and liberal use of tropes, storylines, adaptations, and non-fixed or non-literal elements. McDonagh discusses examples of how attempts to legislate and protect performance rights may complicate the act of quantifying and isolating substantial portions of creative performances.

With respect to jurisdiction, McDonagh focuses principally on the U.K. However, some chapters, such as Chapter 3, “Copyright Law and Performing Authorship in Theatre –Exploring the Contrasting Roles of the Playwright, Director and Performers,” contain comparative insights on the laws of other jurisdictions. Case law and legislation from the European Union, United States, Ireland, France, Australia, India, Germany, Israel, New Zealand, and Canada are canvassed and discussed with respect to topics such as original works, joint authorship, and infringement.

The crux of Performing Copyright highlights theatre as an example of the need to consider the mutual influence between intellectual property laws and the communities of practice to which they apply. The historical evolution of play manuscript publication, artistic and dramatic works, rights afforded to authors, and rights afforded to performers have all, in varying degrees, influenced copyright and performance rights in contemporary theatre. McDonagh examines theatre’s inherently organic, dynamic, and collaborative nature and suggests that both legislators and courts may benefit from greater knowledge of its ethos and normative practices.

Throughout the work, readers are reminded that copyright and intellectual property’s monetary or incentive function may be “insufficient to explain why theatre practitioners create” (p. 188). Unlike other artistic endeavours like film or music production, McDonagh notes how copyright infringement and litigated disputes are rarer occurrences in contemporary theatre. In theatre, some acknowledged practices include the use of shared resources, Renaissance storylines, and a wider interpretation of fair dealing defences such as parody, satire, and quotation. McDonagh highlights how flexibility and adaptability are displayed in the theatre community often out of necessity and largely in favour of fueling creative processes. McDonagh suggests that legislators may benefit from better understandings of the organic development of “unintended meanings” (p. 186) in creative interpretation, and how performative works may generate new intellectual outputs without fixation or embodiment in a recording.

McDonagh concludes the book by advocating for greater acknowledgement of cooperative realities and joint authorship in theatre, as opposed to individualist notions of authorship. This may be obtained, in part, by courts being more open to the creative context of theatrical collaboration and more willing to hear contextual evidence from the theatre community. McDonagh also advocates for greater accessibility to the law within theatre communities, with many members lacking resources to pursue litigation leading to judicial guidance on contemporary theatre issues. McDonagh pointedly states, “Theatre is often a centre of resistance to prevailing political and cultural currents—whereas law (especially in cases of intellectual property) can sometimes, perhaps often, be the tool of the powerful” (p. 189). Finally, McDonagh advocates for clearer practitioner guidelines and standards for theatre communities addressing issues such as joint authorship, infringement, and fair dealing.

Performing Copyright is a reminder of how theatre and performance arts will likely continue to challenge traditional legal constructs. I recommend this book for academic, courthouse, and public law libraries, as well as law firm libraries that serve entertainment law practice groups. It will resonate with intellectual property lawyers, academics, and librarians interested in nuanced applications of intellectual property rights in both conventional and non-conventional contexts. This book would be a welcome addition to libraries serving patrons involved in theatre and other creative disciplines as a primer on both the history of copyright as applied to literary and performative works and the current issues and legislative gaps surrounding the protection of dramatic arts and performance rights in collaborative and creative fields.