In the context of theatre, the presentation emphasised the function of the script as a text that comes into being with the purpose of being performed. This assumes significance for any meaningful analysis of the reasonable scope of the author-playwright’s moral rights. Empirical research reveals the inherently collaborative nature of creative processes in the context of creating theatrical works, which are often centred around workshopping. The workshopping process involves various agents, i.e., actors, playwrights, and directors assuming each other’s roles interchangeably and often radically reimagining the script such that it can be said to be collectively authored by the end of the process. This collaborative process is conceptually mutilated to fit the individualistic ideal of authorship under copyright law, producing the legal certainty and convenience of dealing with a single rights holder. The creativity emerging out of the that the complex, messy, unpredictable, and organically negotiated workshopping process entails is inherently of the nature of a . This is often obscured by the law’s privileging of the whose superior genius merits protection for both his personhood interests tied to the work as well as the public’s interest in receiving the work as it was originally imagined by the author.

What stood out to me particularly during the presentation was the deliberate academic choice that Dr. McDonagh makes in his work to explore and reveal the lived experiences underlying the arbitrary categories and standards that copyright law creates—legal categories that and insulate the law from critique by mystifying it via neutral rules and evidentiary standards. Using this context, I analyse joint authorship through a feminist lens in this post.

The strongest justification for moral rights emerged out of the theory, which meant to protect the author’s deep connection with his or her work, which is regarded as an extension of his or her personality itself. However, when an actor’s speech patterns are used to write dialogues, he or she could potentially be said to acquire a personhood interest in the script. Similarly, when a woman is recognised as a muse and the work created is dedicated to her as a tribute, it is possible that she has a greater personhood interest in the work that statedly reflects her personality than the male writer who decided to fix his expression around it. Rendering women and their experiences knowable predominantly through a also incurs public interest costs arising out of a homogenous public sphere where the lack of diversity of voices cripples creativity.

The recent decision by the UK Court of Appeals in seems to be shaping the contours of the law on joint authorship in the UK towards “identifying the true nature of the interaction between the parties”. The situatedness of this identification within crucial context makes it valuable to feminist scholarship in exposing power differentials among parties. However, the case also quoted Ezra Pound’s contribution to , a poem regarded as solely authored by T.S. Eliot. The Court held that despite Pound’s significant contributions, which were more than sufficient to justify a claim for joint authorship based on their nature and extent, the work was not jointly authored because “neither” poet regarded it so. Building upon a very insightful question put forth by Dr. Carys Craig, it is important to consider whose intention is considered crucial for a claim of joint authorship to succeed and what are its implications.

According to the British Columbia Supreme Court in , Canadian law required evidence of the parties’ shared intent to be joint authors in addition to working towards a common design and making significant expressive contributions to become part of a unitary whole. The Canadian Federal Court (FC) disapproved of this decision in by holding that Neudorf was incorrect in requiring evidence of the parties’ shared intent to be joint authors. The decision in Neudorf emerged from a reliance on US standards for joint authorship, such as those used by the US Court of Appeals in which held that the of any person to the status of a joint author must not occur unless every collaborator intended that the other be a joint author of the work. The FC in Neugebauer held that the Canadian Copyright Act was similar to the UK Copyright Act of 1912 in this regard and did not require the joint intent of parties for joint authorship. However, the FC in Neugebauer also held that the Neudorf standard was met in the case based on the facts therein. Thus, while Canada awaits an authoritative determination that joint authorship can be found in the absence of shared intent, the shared intention of the parties to be joint authors continues to have strategic if not determinative value in Canadian caselaw.

As per an empirical study titled ‘’, women comprise on average 30% or less of the artistic directors, directors, and playwrights in theatres in Canada, Australia, the UK, and the US. The widest gender disparity is conspicuous in the playwright category: 63% of the productions were authored by men, 22% by women, and 15% by mixed gender partnerships. In Canada, women make up fewer than 30% of theatre’s creative leaders, despite constituting a majority of theatre audiences (49% women compared to 40% men), a majority of all of theatre school students at the National Theatre School of Canada (58%) and writing plays that are 18% more profitable than those written by men (ironically, the routine excuse for non-production of women’s plays is that they are riskier at the box-office). I call this phenomenon the ‘ of women’s creative labour in theatre, which can be revealed by feminist inquiries into the power struggles involved in the creation of works of theatre. Women’s intellectual and creative contributions are susceptible to being cited out of male bibliographies, and trivialised as emotional labour that they are socialised and expected to perform. Often this male gaze can be significantly internalised and women may find it difficult to challenge the personhood interests of external actors in their personality and work by doubting the significance of their own contributions.

A jurisdiction such as the US, that requires the joint intent of parties to create a jointly authored work, can end up privileging the intention of the white male author who intended his work to be solely authored and assumed his female partner’s contributions to be those of a “friend and critic”. In a jurisdiction that recognizes authors’ moral rights, the moral rights would then vest in the male author as the legally entitled sole author because there was no common intention to be joint authors regardless of a “common design to create” and ��notwithstanding the actual creative contribution of the woman to the work.

A cause and effect of this feminisation is the pedagogical use of works by at theatre schools, which impact graduates’ choices as artists and audiences regarding the plays that they produce and support. There is arguably a public interest involved in developing and using the law with the purpose of fostering the creation and production of works by female playwrights in order to challenge a system premised on the reification of at the cost of alternative non-conforming identities, values, and works.

However, even as I write this, I am cynical of the potential of any reimagined copyright system to meaningfully further the goals of distributive justice because of the gendered and often privileged nature of 1) the required to be creative 2) the ability and impetus to one’s ideas in a medium and 3) to one’s claims in a court of law. Nonetheless, this recognition of the limited potential of copyright as a system to lead to social justice is useful to interrogate the values orienting its justifications and shed light on the extent to which they fall short of the objectives they unabashedly claim to fulfill.

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Anupriya Dhonchak is an international exchange student at Osgoode Hall Law School from National Law University, Delhi and is currently working as a Research Assistant to Dr. Carys Craig.

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Dr. McDonagh opened the presentation with an overview of his study. Specifically, he sought to address whether the recognition of authorship of dramatic works under copyright accurately reflects the processes involved in the creation of plays and other theatrical works. The tendency for copyright to award authorship to one person (the playwright), raises questions around whether it accurately reflects the reality of creativity in theatre.

Play writing, like many forms of artistic expression involve a collaborative process, insofar as the material produced in these settings is often the by-product of multiple individuals and perspectives. From an IP perspective, this notion of “relational authorship” raises speculation as to whether theatre fits with the idea of copyright being afforded to specific individuals. Ascribing full copyright protection to the playwright solely for their writing and none for the actors who perform is seemingly a prosaic way to operate. However, Dr. McDonagh notes that this approach is not unique to theatre.

For example, in the music realm, modern approaches towards the creation of a song’s instrumentals require a producer to meticulously layer various sounds together, harmoniously, to produce a finished product. 20 years ago, only nine of the top 100 albums contained sampling, while today, almost a third of the current top 100 use sampling as an artistic tool.[2] Despite the popularity of sampling music in genres like hip-hop, it remains a highly controversial practice within the field of copyright law, largely due to similar concerns around relational authorship.

Consider the case of Clyde Stubblefield, who was one of two drummers for legendary artist James Brown. Today, Clyde is regarded as one of the most sampled artists of all time. Clyde’s unique drumming style became a very popular bassline for hip-hop drum samples in the 90’s from some of Brown’s popular songs like “Funky Drummer” or “Cold Sweat”. For the artists sampling Clyde, they were not interested in Brown’s music as much as they were interested in Clyde’s drum beats, which he later indicated were entirely his own creations.[3] As he recalls, the recording of those songs began with him playing a drum beat and everyone joining in, which was a common practice for soul bands of that era.

Despite Clyde’s spark on the drums, and the assistance the other musicians provided in producing the final product, James Brown owned the copyrights and as such, would be the sole recipient of any benefits received from his music being sampled. This situation is analogous to the current dynamic in theatre, whereby playwrights exclusively receive copyright protection. In the theatre context, Dr. McDonagh highlighted that the work is often in a constant stage of re-definition, as it is not concrete until you get the first performance. These features can be seen in both the music and film world. In 2004, the case of �� demonstrated the court’s traditional approach towards copyright doctrine, as exclusive protection was given to the play’s original writer. Despite this, the more recent 2019 decision in has leaned towards a more contextual approach, as writing was not deemed to be the conclusive factor in determining protections.

The commercialization of hip-hop in the 90’s meant increased regulation around sampling and the proliferation of contracts between parties that did not previously exist. Dr. McDonagh points to the fact that within theatre, there remains a lack of contractual relationships between parties, whereas in film and music industries these contracts do exist. This raises questions as to the future of the theatre industry and whether increased regulation would aid or hinder creative expression in this context.��

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at IP Osgoode Innovation Clinic.

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[1] Quoted in Peter Yates, Twentieth Century Music: Its Evolution from the End of the Harmonic Era into the Present Era of Sound (New 91��ɫ: Pantheon Books, 1967) at 41.

[2] Kembrew McLeod & Peter Dicola, Creative License: The Law and Culture of Digital Sampling, (London: Duke University Press, 2011) at 5.

[3] Ibid at 91.

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In , Yehuda Pinto sought damages for copyright infringement of materials he prepared during his 14-year period working with the (BJEC) and the curriculum.Pinto Began working as a freelancer for TaL AM in 1992. His work involved original compositions, arranging traditional songs, and various other aspects of the musical component of the Tal AM curriculum. Since there was no written contract, the court had to make a determination as to what agreement the parties reached at the time. BJEC always paid Pinto at an hourly rate and he never received any royalties for the use of his works, though he did once receive a bonus as a thank you for his contributions.

The relationship ended in 2006 when an employee of BJEC discovered hidden copyright annotations in Pinto’s invoices. The documents were submitted electronically and contained white text on a white background, claiming that copyright in the works would remain with Pinto. At that time, BJEC required that Pinto either sign a document stating that all of his compositions were the property of TaL AM or an acknowledgement that his services would be terminated.

Copyright Ownership

At trial, both parties agreed that Pinto owned the Copyright to 58 of his original compositions pursuant to of the Copyright Act, which states that the author of a work is the first owner of copyright. His works were BJEC, since he was a freelancer and he did not sign the agreement, opting instead to end the relationship. In other works such as the actual songs, the Court found BJEC and Pinto to be joint authors. BJEC was also held to be the of the sound recordings, since they bore the associated financial risks. Finally, if Pinto consented to the use of the underlying works, BJEC ��held the copyright in the of the curriculum.

Additionally, Pinto did not assign the copyright because such an assignment must be in writing, per of the Act, and once again there was never any written contract or an agreement between the parties. Therefore, the central question before the Court was whether Pinto consented to the use of his works as a part of the contract for his services. The Court held that Pinto granted an implied licence to use his works and the actions of the defendants were within the scope of the licence. The action was dismissed.

Implied Consent

According to��, the burden of proof of lack of consent is on the party seeking to establish infringement.�� In its analysis, the Court stated that the testimony given did indeed establish that Pinto granted consent to use his work. He knew that his work was commissioned for Tal AM, and during the proceedings he acknowledged that he permitted BJEC to use his music for the TaL AM curriculum.��Pinto’s request for a written contract was not evidence of a lack consent. Pinto had argued that his repeated requests for a written contract to protect his “rights” established that he did not grant a licence.�� The Court reasoned that the fact that he continued to work with BJEC after they refused his requests meant that he impliedly consented to the terms as presented by the defendants.

In , the Supreme Court held that when a work is created at the request of a purchaser, the Court��can find an implied licence to use the work for the purpose for which it was created. Therefore, through the continued relationship, Pinto implied consent to the use of the works in the TaL AM curriculum.��The Court further held that there were no limitations put on the consent. No restrictions were communicated by Pinto, nor were they reasonably contemplated by the parties at the time.

Lessons for the Future

The lesson from this case is to make sure everything in writing. The relationship could have been preserved had the parties’ expectations been made clear from the start through a negotiation of rights and remuneration. Moreover, BJEC could have negotiated ownership of the works from the beginning as part of the contract for services. Alternately, if Pinto had held firm in his request for a written agreement, perhaps he would not have granted an implied licence. If he stopped working for BJEC immediately after the refusal he could argue that there was no implied consent to BJEC's terms. This ruling is a reminder to authors that even though they can retain copyright in their works, they may lose some degree of control over their use if they grant implied licences by continuing a "for service" relationship. The importance of this reminder is amplified in this context because in copyright, it’s all about control.

Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

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