Show week is a trying time, a final set of technical and dress rehearsals before a theatrical production goes before an audience. But this week, playwright and director Chaunesti Webb’s final rehearsals for the revival of I Love My Hair When It’s Good: & Then Again When It Looks Defiant and Impressive at Manbites Dog Theater have added stressors no artist ever wants to face: the shadow of copyright infringement and threats of legaland possibly extralegalaction.
The play was a standout of the 2012 season. Using hair as a conceit, I Love My Hair… was a moving meditation on the experiences of two young girls coming of age in a small Southern town and the phenomenon of internecine racism in the African-American community.
The show’s initial two-week run sold out. Dates were added, which also sold out. Critics, including this author, embraced the show. On the basis of its success, Durham’s venerable Manbites Dog Theater announced plans for a revival, to be produced by guest company Forty / AM. It opens Thursday.
But on Nov. 19, 2013, a New York-based writer, Meg Henson Scales, wrote the INDY and charged Webb with unauthorized use of an essay she wrote called “Tenderheaded, or Rejecting the Legacy of Being Able to Take It.” An investigation by the INDY revealed the claim had substance: Henson Scales’ words appeared in Webb’s text, and several structural parallels appear in both.
But our inquiry also uncovered ambiguity in copyright laws that represent a potential minefield for young artists creating their own scripts without adequate training or significant legal or institutional protections.
Webb says she based the text of her play about African-American women and their hair on a series of workshops and interviews conducted with women in her native Durham and Boulder, Colo., where she did her graduate work at Naropa University between 2008 and 2009. The initial research formed the body of her thesis for a M.F.A. in contemporary performance.
The “devised theater” process that led to the creation of I Love My Hair… involved a kind of crowd-sourcing. “Everyone had a notebook,” Webb recalls. “Folks would write things; they would pull things out. I didn’t always go back and look at the sourcing of it, but I had lots of material from all of these workshops that people contributed who were part of the creation.”
But somehow, along with her participants’ stories, it turns out that Webb also incorporated the words of three writersAnnabelle Baker, Cynthia Gilbert and Meg Henson Scalesinto the 2012 version of I Love My Hair. The appropriated texts had all been published in Tenderheaded: A Comb-Bending Collection of Hair Stories, a 2001 academic volume of essays that examined African-American women’s history and hair.
Webb declined to provide the INDY with a copy of her 2012 script. But examination of a copy obtained elsewhere revealed that a number of passages had been appropriated from other texts. A complete paragraph had been appropriated verbatim from Baker’s essay “Severed.” Three phrases totaling 30 words were taken from Gilbert’s poem, “Hair (R)evolution.” And 14 passages from Henson Scales’ work, the title essay of the Tenderheaded collection, showed up in Webb’s script.
Among the most striking of these appropriations, which ranged from descriptive phrases to a complete paragraph, were the words Webb’s five characters spoke during the moving final scene of I Love My Hair in 2012.
All of them had been written by Henson Scales.
In total, just under 300 words in Webb’s 15,000-word script2 percent of the total workwere appropriated from these three writers, appearing as dialogue spoken among her characters.
But beyond the specific passages appropriated, several parallels appear in Henson Scales’ and Webb’s text. Both involve arduous, detailed accounts of girls’ childhood hair care in African-American families. In both texts, cousins are having their hair done by aunts. In both, one cousin is “tenderheaded” and the other is not. In both accounts, one of the women doing the children’s hair smokes Tareyton cigarettes. And in Webb’s text, one cousin subsequently follows a path of self-sacrifice that Henson Scales overtly critiques in her text.
Webb acknowledges that she did not seek advance permission to use these works. And though she thanked more than 160 people in a full page of her 2012 playbill, the three writers were unmentioned. Webb listed herself as the work’s sole creator.
But what seems to be a clear case of unauthorized borrowing is more contentious and nuanced, starting with the distinction between plagiarism and copyright infringement, says Jennifer Jenkins, director of Duke’s Center for the Study of the Public Domain. The former, Jenkins notes, takes credit for someone else’s work; the latter doesn’t care about credit but concerns whether a work is used in certain ways without permission.
“If I sign my name to a Shakespeare sonnet,” Jenkins says, “it’s plagiarism but not copyright infringement, since Shakespeare’s works are not copyrighted. If I post the new Harry Potter novel online, duly attributing J.K. Rowling, it’s not plagiarism, but it is copyright infringement.” In most cases, including Webb’s, artists appropriating other people’s work seek exemption from copyright responsibilities under a series of statutes called “fair use.” Educational purpose and nonprofit status are considered among them, but they don’t automatically immunize an artist against a charge of copyright infringement.
In the past 20 years, Jenkins says, the courts have focused on three main factors: How much of the protected work was used? Did the use interfere with any legitimate markets of the creator? And, most important, was the artist’s use transformative?
“Art builds on other art, and artists engage with other artists’ works,” Jenkins says. “But ‘transformative’ asks did you use the work in a new and different way? Did you add new aesthetics, meanings, insights or messages?”
Parodies, for example, are generally considered transformative because they invert the meaning of the original work. But if the artist simply reiterates the sentiments of the original work, that’s not transformative, because the meaning hasn’t changed.
Webb says the issue of fair use and copyright first came up just before the Durham premiere. “That was my first real awareness of it being something that I needed to look into. And based on the information that I gathered, I felt confident that the little bit I included from (Henson Scales’) essay was OK.”
But when Webb contacted Henson Scales in late March 2012, the writer disagreed.
Henson Scales accused her of plagiarism and copyright infringement and hired an attorney, who sent Webb a letter in May 2012 demanding that she cease and desist all use of the author’s work. In an emailed response dated May 22, 2012, Webb said she would remove all of Henson Scales’ words from the work.
But that exchange did not end the correspondence between the two writers. Over the months that followed, Webb claims Henson Scales sent her a series of increasingly threatening emails. In one of them, dated Jan. 26, 2013, Henson Scales demanded that Webb publicly apologize for plagiarizing her workand pay her $50,000.
Webb read from the email in our interview: “Do these things and I’m gone. Don’t do them and some billboards will be going up in your beloved Durham. You are a psychotic. I know how win with you bitches.”
At the end of the email, Webb read the following: “After you are dead, I will petition the gods to have you live in hell forever. You will never hear the last of me.”
In another email sent the same day, Webb claims Henson Scales wrote, “You should never relax. Never be calm. You should always be ready.”
Webb declined to share the actual emails, citing the possibility of a criminal complaint. But Henson Scales doesn’t deny sending them.
“I sent her mean emails, and I stand by them,” she says, “but I have no intention of breaking the law.”
In another interview, she admitted, “I tormented her for a while … I’m not a violent person, but I’m not going to let you get away with stealing my work.”
Henson Scales also threatened to seek an injunction to prevent the January remounting of I Love My Hair from opening. As of this writing, a search of federal court records uncovered no action filed by Henson Scales.
That, however, should provide little comfort to any party involved in the production. The statute of limitations for copyright infringement is three years. And as one expert we consulted in copyright law concluded, it would be strategic for a plaintiff to delay litigation in this circumstance as long as possible.
Regardless of the merits of this particular case, legal experts say the copyright landscape is distinctly tilted against individual artists.
“The court system is the worst system for artists. Period,” says copyright attorney David McKenzie with Sands Anderson in Raleigh. “If an artist gets sued, they’re cooked.” According to McKenzie, a legitimate copyright fight in the Eastern or Middle districts of North Carolina costs a minimum of $100,000.
“In a lot of ways,” he notes, “intellectual property serves as a protectionist scheme to keep people out of the marketplace. Where it really upsets me is in the arts.”
As for fair use? It’s “as useless as gum under a grade school desk,” McKenzie says. “It doesn’t have any real teeth to it; it’s too malleable to provide any certain defense. And it certainly does not prevent litigation.”
As a result, an under-capitalized artist has to surrender “as a bargain to get rid of the litigation at the cost of their art.”
Though the First Amendment states that Congress shall make no law abridging the freedom of speech, “that’s exactly what copyright law does,” in McKenzie’s view: It presupposes that artists should first be silent and request permission before engaging in certain types of speech. “It seems to me the balance between the Copyright Act and the First Amendment is completely out of whack.”
“I’m not for being able to wholesale lift someone else’s work,” he says. “But if someone wants to use an antecedent or previous expression in their own work, giving the right of attribution and in some cases, payment, they should be able to do that under the First Amendment.”
With a veritable labyrinth of contingencies and exceptions largely carved out by media industry lobbyists, McKenzie calls current copyright law subjective and internally inconsistent.
“I do not believe that copyright enables creativity or expression at all; it actually hinders it far more than anything else.”
Ruth Bader Ginsburg once called copyright law “a vehicle of expression… Nothing could be more absurd,” McKenzie said. “It is a vehicle of silence.” Copyright laws are the only statutes “that can actually enable a private citizen to silence another private citizen.”
Ignorance of the law is expensive. If a plaintiff convinces a judge that an infringement is not fair use, damages are calculated according to the percentage of the new work that the infringed material makes up. A plaintiff whose material makes up two percent of an infringing artwork would be entitled to two percent of any profits, after expenses.
But there’s a major exception to this formula. If a writer registered the copyright to their work within 90 days of its first publication, he or she is entitled to statutory damages, between $750 and $150,000, for each infringement. But if the plaintiff proves that the infringement was willful, those damages start at $30,000.
What’s even worse? A theater artist who’s committed copyright infringement is all but certain to have done it a number of times in the same production. Each copy of the infringing script that’s made, even among the cast and crew, is a separate infringement. So is each performance.
Companies who haven’t secured the rights to a work like ArtsCenter Community Theater, which folded after their adaptation of Peter Pan ran afoul of copyright laws in 2000quickly face the direst consequences. Editor’s note: See comments section.
In November, Ed Hunt, managing director of Manbites Dog, said the company was “in ongoing conversation with Chaunesti to determine and resolve any issues that have been raised.”
Although Webb ultimately agreed to remove Henson Scales’ writing from I Love My Hair..., when we asked if she remains convinced that she correctly observed the rules governing fair use, she replied “Yes.”
But at the same time, she says she’s had no training in the legal creative use of other people’s work. She says Leigh Fondakowski, of the fact-based Tectonic Theater Project (The Laramie Project; Gross Indecencies), mentored her at the beginning of her thesis work. But according to Webb, no one broached the topic of copyright, fair use and its potential legal responsibilities: “That’s not anything I remember in any of my training.”
When we contacted Fondakowski, she said, “Copyright issues would not be relevant, as I do not teach adaptation.”
But Fondakowski also says her own work makes clear when other works are being appropriated. “An actor will say, ‘This is from an excerpt from congressional testimony.’
“I have created one play inspired by a book. I don’t use direct quotes, but I secured the underlying rights to the entire book before using it in my writing process. This is the process that I teach to students and have for many years.”
However, Wendell Beavers, chair of the program in Theater and Contemporary Performance at Naropa, took a less firm line. “Anything that’s been published, if it’s attributed, can be spoken on stage.”
When we asked Jenkins of Duke’s Center for the Study of the Public Domain about this, she said, “No, this is a completely incorrect statement. Public performance of a published work can be a copyright infringement whether or not there’s attribution.”
Given the apparent confusion in the academic communityand what’s at stake for artists who rely on such instructionclarifying the artist’s rights and responsibilities under copyright and fair use seems paramount in keeping a community of artists clear of civil liability.
This article appeared in print with the headline “Contested words.”