Fair Use? Thatswhatshesaid

Last week, arts blogger Howard Sherman wrote about a copyright dispute surrounding a two-act play, Thatswhatshesaid. According to Mr. Sherman, the challenged work is constructed out of dialogue and stage directions given to women in the 11 most produced plays in the United States in 2014-2015.

Apparently, the copyright owners of the 11 most produced plays in the United States in 2014-2015 are crying foul. (Well, at least some of them are.)

Mr. Sherman suggests that the authors of Thatswhatshesaid may have been justified in taking material from those 11 other plays, because of the copyright fair use doctrine.

I agree with much of what Mr. Sherman says.  Recent decisions (especially in the Second Circuit) are leaning toward a broader application of fair use. (See Cariou v. Prince, 714 F.3d 694 [2d Cir. 2013] cert. denied 134 S. Ct. 618 [2013]). And last fall we learned in the Lenz “Dancing Baby” case that fair use is a right, not a defense.

(If you want to browse through fair use cases, the US Copyright Office has a searchable index.)

It would be irresponsible to draw any conclusions without first doing a complete legal review. (And nobody’s asked me to do that — so I haven’t!) But on the surface, it certainly sounds like Thatswhatshesaid is the type of work that fair use was intended to permit.

I disagree with some of the statements Mr. Sherman makes about what fair use is and how it works, but those points are not relevant to the big picture: whether fair use applies to this particular play. In my opinion, fair use is like a muscle. If we don’t exercise it when doing so is appropriate, it will atrophy and go away. And that would defeat its purpose, which is to preserve the constitutional balance between the rights of authors and the rights of the public to a rich domain of cultural material.

The problem is, “exercising it” means taking a huge financial risk. That, too, defeats what I believe to be the constitutional objective.

I know, this is akin to asking, how can we change the world? — but somebody has to ask the question. What can we do to even the playing field?