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A lawsuit arising out of allegations that the creative team of a Chicago production of Urinetown! The Musical plagiarized the work of the Broadway team, including the work of director John Rando, was settled yesterday. 
 
Mullen v. SSDC, et. al. thus becomes the latest in a series of cases either initiated by, supported by, or orchestrated by the Society of Stage Directors & Choreographers in its ongoing effort to establish the existence of a “director’s copyright”.
 
In each such case, now including Mullen, there has been a settlement before a court could reaffirm the current state of the law—to wit, that there is no statute or common law basis to support the notion that a director creates anything which can be protected by the copyright laws of the United States. 
 
Why was the case settled?  Only the parties themselves can answer that.  However, as anyone who has ever been involved in a law suit knows, litigants with deep pockets can prolong a court case, whether their cause is a just one or not.  And they can almost always force a litigant without deep pockets to settle a case which has become, quite simply, too expensive to pursue. 

 

The imbalance between the parties in this case—a handful of individual theater artists arrayed against a powerful national union—is reflected in the language of the Mullen settlement, which was released to the press yesterday.  It includes the following final sentence:
 
“The members of the Chicago Production involved in the lawsuit have agreed to pay an undisclosed amount to the Broadway Production  … for the use of the material originating in the Broadway Production that was incorporated into the Chicago Production.” 
 
“Material” is a vague word.  It could certainly refer to elements of the Broadway choreography and set design, both of which are copyrightable as a matter of law.  But the word’s scrupulous lack of specificity also permits the inference that it refers to other types of material originating in the Broadway Production, including “material” created by the Broadway director, John Rando. 

 

Except for the following:  that the Department of Justice intervened in the Mullen case on behalf of the U.S. Copyright Office, asserting that “the Register (of Copyright) denies that stage direction, as presented to the Copyright Office for registration, is copyrightable subject matter” and asking the court to “hold that the Register properly refused copyright registration for Mr. Rando’s claim concerning stage direction.”
 
No doubt, the deliberately ambiguous language of the settlement will be quoted by the very people who authored it to prove that there remains some confusion or uncertainty around the issue of a director’s copyright.  There does not.  And playwrights, composers, and lyricists determined to maintain their ability to control the content and disposition of the work they create can take comfort in the unequivocal and unprecedented intervention in this case by the Department of Justice.  

 

We are, therefore, grateful to Mr. Mullen for taking on his own union as a matter of principle, and thus providing an opportunity to shine some much needed light on this critical issue.