In a Teacher’s Declaration, Discouraging Words and A Smidgen of Insight

January 1st, 2018 § Comments Off on In a Teacher’s Declaration, Discouraging Words and A Smidgen of Insight § permalink

“Bird on Bench” Photo © Howard Sherman

Of the many criteria one might apply when considering what makes a great teacher, I think it’s fair to say that the ability to see and encourage something in a student that they do not yet necessarily see in themselves would rank high on the list. While this is probably not possible for each and every student, nor every teacher, one often hears stories from successful people about a teacher who really helped them along on their journey of education and discovery.

As I contemplate my education, it turns out that the person who did this for me was not in fact a teacher, but the cantor at my synagogue, when I was probably in fifth and sixth grades. His mentorship was not of a religious nature, however, but rather a cultural one. It was he who took me to New Haven’s art museums and talked me through their collections. He also encouraged me to try my hand at writing, some rudimentary plays all adapted, sans rights, from existing sources. He went so far as to loan me his own electric typewriter to facilitate my writing, and it was mine until it was obvious to my parents that I should have one of my own.

I don’t remember any specific lessons the cantor taught me. Rather, he was the first person to see how I responded to the arts, and at an age when I was decidedly awkward and different from the majority of my classmates, he allowed me to feel that my interests were not odd. As is the case with so much in our childhoods, this mentorship may have only amounted to a few outings, but they loom large in memory.

“I Will Not Be Silenced” Photo © Howard Sherman

In contrast to this experience, the single most vividly remembered moment of my formal education came once I was in college. It was decidedly not a positive one. It demonstrated how potentially damaging the words of an insensitive teacher might be, though in my case, I largely shrugged it off, transforming it into a story of it defying authority, an anecdote I told and laughed about often.

I often tell people that I have absolutely no educational training in theatre, that all I know I have learned from experience. But there is an asterisk that I always append to that statement. While my university did not have a theatre major, there was a nascent theatre studies minor. While I didn’t pursue that course of study, I opted to take, of all things, a single scenic design course. The teacher was a visiting adjunct from a nearby university with a full theatre program; it was not a deeply practical course, but primarily a conceptual one.

This is where I should admit that I cannot draw. I am unable to translate what I see in my eyes through to my hands to create even a passable visual representation of the thing itself. I neither perceive nor judge space and distance well. When I would doodle during classes that failed to keep my full attention, everything was geometric, ordered, symmetrical. When it came to arts and crafts as a child, the ruler was my favorite tool.

“Death in Trafalgar Square” Photo © Howard Sherman

So when, in this college design class, we were asked to sketch out a few ideas, to translate text into a rough setting, I was, I acknowledge, pretty hopeless. I could posit sets of boxes, rectangles and triangles; there were often layers upon layers of steps. Having read about the tricks required to suggest perspective, my ever-present lines and angle might seem to recede towards the horizon.

One day in class, as the teacher reviewed and discussed each student’s work, he came to mine and, perhaps immediately, perhaps after a bit of thought, uttered the phrase I have never forgotten.

“You have no imagination,” he told me.

In the moment, I grew angry. This wasn’t meant to be a practical course but a theoretical one. If I had known I would be judged on my drawing skills, I would have never taken the class. How dare he say such a thing in front of the other students, cutting me down so publicly.

But as it happened, the small class of perhaps eight students was made up entirely of my drama club friends, many of whom I lived with off campus. So I didn’t have to speak up for myself. I remember, in particular, my friend Leslie, who has never suffered fools gladly, putting into words all that I was thinking, with my classmates, my friends murmuring in support of her. I don’t remember how the class ended that day, but neither Leslie nor I suffered from a poor grade at the end of the semester.

“Fulton Street Station” Photo © Howard Sherman

For years, literally for decades now, I have retold this story in order to demonstrate what a fool this teacher had been to me, and how my friends rallied to support me no matter the effect it might have on them. I have, at times, told the story with greater detail, so much so that the artistic director of a regional theatre stopped me only partway through the account to correctly guess the name of this educator, indicating that such pronouncements were not out of character.

Now jump forward some 30 years, to 2013, when I bought my first camera in many years, a digital single lens reflex camera, which has become a beloved possession. Unless I am carrying a totebag with my computer and papers for work, my “good camera,” is almost always with me. Thanks to the nonexistent cost of taking digital photos (in contrast to my days of shooting on film), I use it to record my wanderings around New York as well as my more significant travels. I have threaded through countless New York streets capturing architectural details from earlier eras, and repeatedly visited Times Square and Washington Square to capture images of the street life there. I have had the opportunity to do performance photography, a special challenge that marries my love of theatre with the exploration of what I can preserve in the moment. I have even been paid a few times for my photos.

Now, more than 40,000 frames later, I have come to a realization: that professor was not wholly wrong. The timing of his observation could not have been worse, and perhaps it would never be constructive, but he had semi-accurately noticed something about me. But his observation was incomplete.

What I lack is a visual imagination. My thinking is profoundly verbal, whether speaking, writing, or even creating. When I read fiction, I retain all of the particulars of characters and places the author has given me, but I see nothing in my mind’s eye. I form no mental pictures. The words engage me and can be vividly recalled, even recited from memory, but I do not take the imaginative leap to invent the visual.

“The Bird Man of Washington Square” Photo © Howard Sherman

Yet with photography, I can frame the world before me in what I hope are inventive ways. I can see in the ever changing panorama before me details that might startle, engage or amuse me, and then in turn share that viewpoint with others. I have taken photos of which I’m very proud, but even given a team of craftspeople, I could have never invented such scenes. I am not wired to do so. It is not a flaw. It is part of what makes me, as each of us are, unique.

Some 35 years on, I no longer harbor even a wisp of ill will towards that teacher, though I hope that he learned over time how much damage he could have done to me, and might have done to others. At the same time, I worry that my own ill-chosen words have at times had a similar effect on colleagues or employees, that they remember me for verbal ineptitude or emotional opacity, and that I will never know it so that I might never make amends.

But all I can do to keep trying to express myself as best I can, whether literally or through the frame of a camera and hope that however I capture or even transform the world through my perspective, it will serve to encourage others, instead of summarily shutting them down. There are countless ways to think, to transform, to share and to imagine and we should encourage each person to do so in their own way. Failing to do so reveals only our own limitations, not those of others.

“Taking a Ride” Photo © Howard Sherman

The Stage: Jukebox or box-set musical? It’s time to make the distinction

November 24th, 2017 § Comments Off on The Stage: Jukebox or box-set musical? It’s time to make the distinction § permalink

Ethan Slater and company in SpongeBob SquarePants The Musical (Photo by Joan Marcus)

‘Jukebox musical.’ For musical theatre purists, it’s a term of derision. For producers, it’s the promise of marketing the music of a well-known star, with songs that audiences already love and are happy to hear again. For songwriters, it’s a chance to have their work on Broadway, in some cases creating a new earning stream and in other cases even revitalising their careers.

But let’s forego our value judgments and even our commercial appraisals. What about the term itself?

‘Jukebox musical’ has been applied to a range of shows. Mamma Mia! used the songs of Abba in the context of a new story unrelated to the band’s history. Jersey Boys deployed the songs of Frankie Valli and the Four Seasons in recounting the group’s own history. Rock of Ages featured an array of 1980s rock songs in an original story set in that era. In retrospect, some now even consider revues to be jukebox musicals, including Ain’t Misbehavin’ and Movin’ Out.

The number and – don’t scoff – variety of these shows reveals that we’ve been collectively using the term too profligately.

After all, jukeboxes initially were designed to hold a wide array of music to be selectively programmed by those with spare change. Their capacity grew when the devices switched from vinyl singles to CD albums. But the underlying result was typically eclectic, with the patrons of diners and bars serving as their own DJs, in the era before that meant mixing and scratching, mingling existing recordings with new beats.

So while the horse has already fled the stable, and the expansive use of the term ‘jukebox musicals’ is likely to stick, it makes the most sense with a show such as Rock of Ages or the new SpongeBob SquarePants musical, opening in just over a week’s time on Broadway. The latter show features a score by, among others, John Legend, Panic! at the Disco, Joe Perry and Steven Tyler of Aerosmith, and David Bowie and Brian Eno. Yes, you heard me correctly.

That’s certainly a diverse jukebox but, it should be noted, most of the songs are original to the show (which I haven’t seen yet, as it’s still in previews), not tunes yanked from catalogues. Instead of mining the work of a single composer, the show opted for a variety of musical voices, rather than any singular style, yoked together by orchestrator and arranger Tom Kitt.

Another musical that deserves to be put in the ‘jukebox’ category, without judgment, would include Urban Cowboy, which combined pre-existing country tunes with original songs by Jason Robert Brown and Jeff Blumenkrantz.

So what might best serve as the proper nomenclature for those shows that take deep dives into the work of a singular composer or songwriting team? After all, we are in the age of personal music devices and streaming, where we commune with music one-to-one via headphones as we go about our day, curating our own soundtrack, with no jukebox required. The era of streaming subscription music services even negates the need, and market, for physical albums.

Even if the term is slightly old-fashioned, and I confess unlikely to catch on, I would place Jersey Boys, Mamma Mia!, Lennon, Good Vibrations, Beautiful, Movin’ Out and their kin under the rubric of ‘box-set musicals’, invoking those multi-disc packages that allowed both avid fans and budget-conscious newbies to really explore the work of a single artist or band.

It’s a vastly more accurate term for most of these shows, and even boasts its own – admittedly snarky – theme song, Box Set, from the band Barenaked Ladies. Some sample lyrics from said song:

“I never thought words that like product / 
Could ever leave my lips / 
But something happened to me somewhere 
/ That made me lose my grip / 
Maybe it’s a lack of inspiration
 / That makes me stoop
 / Or maybe it’s a lack of remuneration / 
I can’t recoup
 / But if you want it folks, you got it / It’s all right here in my box set.”

Does theatre have room for distinguishing between jukebox and box-set musicals? I think so. After all, they’re not going away, so we might as well give them their due. And if SpongeBob really hits, its multi-composer approach may prove very popular.

For producers, however, it will become ever harder to come up with new box sets, as all of the best-known catalogues are snapped up, for good or ill. Though, come to think of it, a Barenaked Ladies musical could be lots of fun.

The Stage: Stage stories of kindness offer balm in face of real-life dramas

November 17th, 2017 § Comments Off on The Stage: Stage stories of kindness offer balm in face of real-life dramas § permalink

Katrina Lenk and Tony Shalhoub in The Band’s Visit (Photo by Matthew Murphy)

If drama is, according to one of its dictionary definitions, “a state, situation, or series of events involving interesting or intense conflict of forces,” then one could say that several shows in New York right now – two of them being Broadway musicals – are undramatic.

The Band’s Visit, which opened last week, is the story of an Egyptian police band. Due to confusion surrounding the similar pronunciation of two Israeli towns (for those who don’t speak Hebrew), the band ends up in the wrong one and is forced to stay overnight in a tiny desert community with no hotel.

There are personal interactions, friendships are born, a hint of romance, but barely a whisper of the kind of Middle East conflict that fuels the play Oslo and so much conversation about that part of the world. Indeed, the Band’s Visit may be the most apolitical piece of fiction about the Middle East ever devised – which is, of course, its own kind of political statement.

Come from Away, which opened in the spring (full disclosure: my wife is one of the producers) is the story of aeroplane passengers bound for New York on 9/11 who were diverted to the tiny town of Gander, Newfoundland when the attacks resulted in the closure of US airspace.

Not unlike The Band’s Visit, this fact-based story is about people arriving in a location that wasn’t part of their itinerary and how they are taken in by the locals. Unlike what most might anticipate for a 9/11 story, the horror of the day and those after it are somewhat distant; the show does not seek to put its audiences through the pain of the events once again or consider the ramifications of terrorism.

In terms of significant action, very little happens overtly in these musicals. They are small slices of life, prompted by error or tragedy. But having watched The Band’s Visit twice (I saw its original Off-Broadway run as well) and Come from Away once, I can attest to the enthusiasm with which audiences appear to genuinely embrace the shows. I have a deep appreciation for the reminder of humanity’s best impulses that they evoke in me. But even trying to delineate a plot does them a disservice.

Jenn Colella and company in Come From Away (Photo by Matthew Murphy)

Also on stage in New York is Richard Nelson’s Illyria, a play based upon a slice of theatrical history; namely the earliest days of the New York Shakespeare Festival, now known as The Public Theater.

It focuses on a moment of crisis in the company’s early years, when it appeared that the primary director might be defecting. Yet, the show’s mood is one of consideration, reverie and even melancholy rather than the sound and the fury one might expect from young artists such as Joe Papp and Stuart Vaughan. In tone, it is as if the Apple family, from Nelson’s famed quartet of plays, were having dinner to discuss forming an amdram troupe.

While all of these shows were developed over several years, it is worth noting that these gentle stories of kindness, camaraderie, sympathy and decency have arrived at a moment when American life on the public stage is fraught with drama – a time when the moods of many citizens are often inflamed to anger or despair by a single tweet from the White House’s Oval Office.

While I have read that horror films are often popular in times of national crisis, that they offer a safe catharsis that provides a release valve for anxieties, these shows seem to be the opposite. They offer a respite from the onslaught of news and opinion, not by suggesting that we tap our troubles away like a light musical, but rather that we remember the things we share, instead of the things that tear us up or tear apart.

The Stage: Opportunities grow on and off stage for those with disabilities

November 10th, 2017 § Comments Off on The Stage: Opportunities grow on and off stage for those with disabilities § permalink

Tectonic Theatre Company’s Uncommon Sense (Photo by Joan Marcus)

Attending last week’s opening night of Uncommon Sense, a new play about people on the autistic spectrum, I was delighted to see the following message under the cast listing in the show’s programme:

“The production will be presented in a judgement-free and inclusive environment. At no point will anyone be shushed or asked to leave due to noises, movements, or behaviours related to a cognition or developmental disability. The Sheen Center is committed to welcoming audiences of all abilities and appreciates your support in that commitment.”

For a show about neurodiverse people, this certainly made sense and distinguished the production from relaxed performances. Those specifically designated performances will temporarily alter a production, particularly lights and sounds, to better accommodate audience members with autism, while making others aware of their intent.

While the show is running at the Sheen Center, it is a creation of Tectonic Theatre Project, the company known for creating such works as Gross Indecency and The Laramie Project.

I wondered whether this approach to audiences just applied to the run of Uncommon Sense, and whether it was a policy of the Sheen Center, of Tectonic or mutually determined by both. Will it apply to future Tectonic shows?

I asked Tectonic’s founder and artistic director Moisés Kaufman, who wrote: “There was never any question that this play was going to make its performance inclusive of the audience which it is portraying. The Sheen was on board with that from the very beginning. As for inclusion, it is a core value of the company. We want everyone to experience our plays and we will always strive to make that possible.”

Less than a week after I saw Uncommon Sense, I saw a second announcement regarding the welcoming accommodation of audiences with disabilities, this time coming from the Broadway League, representing its members who operate theatres on Broadway. By the summer of 2018, all Broadway theatres will have equipment in place to make captioning services and audio description available at every performance for any audience member free of charge.

Using voice-recognition software, the services will be automated so that shifts in timing from performance to performance will be matched by the services. For Broadway, this will signal an end to blind or low-vision audiences and deaf or hard-of-hearing audiences being offered only a handful of performances each year that accommodate them. For each new production, services will become available approximately one month after opening, allowing for new programming for each show.

Making theatre fully and consistently accessible for all of the approximately one in five Americans with a disability will remain an ongoing challenge. Disability, after all, is a vast catch-all phrase which encompasses a wide range of physical and cognitive conditions.

But if more theatres commit to inclusion as Tectonic has, if touring houses and regional companies follow the lead of Broadway theatres – and if funders at last recognise the necessity of supporting such efforts – not only will there be less stigma for audiences with disabilities, but a wider audience base will become available. Accessibility really can be a two-way street if theatres stop and think about it.

As a reminder, however, that theatre needs to focus on accessibility on both sides of the proscenium arch, so to speak, Uncommon Sense also featured a cast member with autism (the show’s married authors have an autistic family member as well).

Additionally, the Indiana Repertory Theatre’s current production of The Curious Incident of the Dog in the Night-Time features Mickey Rowe, an actor on the autistic spectrum, in the central role of Christopher, quite possibly the first such actor to play the part.

Maybe these advances in diversity will lead us to the day when audience members with disabilities can regularly experience performances by professional artists with disabilities. Perhaps with authentic casting, theatres will prompt yet more young people with disabilities to know that theatre is viable career option for them too.

Facebook Needs To Explain Its Problem With A Sondheim Ad

October 20th, 2017 § Comments Off on Facebook Needs To Explain Its Problem With A Sondheim Ad § permalink

As investigations into political tampering with the 2016 US election on Facebook have made headlines and perhaps spurred corporate introspection, one would hope that the company is in the process of tightening its ad controls. Given the huge importance of social media company in the world’s communications, we can ill afford to have false information circulating that undermines democracy – or that supports racist and hate-filled positions.

But even if Facebook is placing ads under more scrutiny, it’s still pretty difficult to understand what led them to ban ads for a production of Sondheim and Weidman’s musical Assassins, currently underway at NextStop Theatre in Virginia, a professional non-Equity company. In the behemoth of Facebook, a single ad may well just have gotten caught up in the gears, but for NextStop, it denies one of their primary advertising platforms, one of the very few where they can deploy video.

Here’s the spot in question:

Matthew Thompson, managing director of NextStop, said that when they first deployed the ad, it was on their event page for the production, distinct from their company page. They did pay for a sponsored post, and at that time Thompson said that, “There were no issues with it. It was posted and approved almost instantaneously.”

However, when the company posted a slightly revised version, simply to accommodate a different aspect ratio for the video and tighten up the length, they looked carefully at the advisories about ad content. Upon submission, the ad resulted in a response from Facebook that noted “ad sets that use targeting terms related to social, religious or political reviews may require additional review” and also saying that “it looks like your ad may be for housing, employment or credit opportunities.”

None of these factors really came into play with the Assassins ad, so NextStop opted to take Facebook up on their offer of a manual review, since that would show that they hadn’t run afoul of any of these concerns. But instead, that yielded the denial of approval, but on the grounds that, “Your ad can’t include images that depict a person’s body as ideal or undesirable.”

Facebook’s inconsistencies here are considerable. As it happens, the Assassins ad is composed entirely of still images – many of which have been posted to Facebook by the company without complaint. In fact, the video itself hasn’t been removed from Facebook – but the company isn’t permitted to boost it to a broader audience by using it as an ad, meaning it is only going to be seen if someone seeks it out on their page, or turn up in people’s feeds through organic reach, known to be fairly limiting for those with company pages that don’t advertise.

Does the Assassins ad have an attractive woman in it? Yes, Mackenzie Newbury, who plays The Proprietor. Is she idealized? That’s a judgment, but the ad doesn’t present her as a paragon of anything, except perhaps as a representation of America and Americana, with her red, white and blue outfit. There is a quick tight glimpse of her lips, a flash of thigh, but they’re not particularly salacious; some might rightly view this as objectification – and if that is being eradicated from Facebook then it must be applied consistently. But certainly Facebook runs more expensively and slickly produced ads with attractive women in them.

Arts Integrity has reached out to the press office at Facebook for an explanation of what has transpired with the NextStop ad, and received a response saying that the issue was being explored and they would respond as soon as possible. The best possible response would be for them to say that upon further review, the NextStop ad has been cleared.

Over the years, social media platforms have often taken the position that they are merely conduits, and not responsible for what is posted unless something is clearly illegal. But now that it has been shown how the services can be manipulated, it’s important that ad content is vetted and content complaints are investigated. But they also need to take care that in policing their house and addressing violations of their terms of service, they’re not preventing individuals and companies that rely on them for their livelihoods are getting caught up in nets meant to capture bad actors, and not good theatre companies.

Update, October 20, 4 pm: Three hours after Arts Integrity’s initial e-mail to Facebook’s press office, two hours after Arts Integrity was informed that the issue of the NextStop ad for Assassins would be looked into, and one hour after this post went live, NextStop was notified that their ad had been accepted and would begin to run.

There was no further response to Arts Integrity about the issues that led to the ad being blocked.

Update, October 21, 7 am: Last evening, shortly after 7 pm, NextStop was again notified by Facebook that its ad has been disapproved.

This follows a 6:30 pm e-mail from Facebook’s PR department to Arts Integrity noting that the ad had been approved, and that on Monday, the press contact could “explain what has happened here.”

Update, October 22, 2017 11 am: Following yesterday’s disapproval, Matthew Thompson discovered, on Facebook’s desktop interface, a more detailed explanation of why the ad had been denied. It read:

“Your ad wasn’t approved because ads should clearly reflect the product or service being advertised rather than focus on a body part (ex: teeth, abs, acne). Using images of zoomed-in body parts typically evokes a negative reaction from viewers. Learn more about our Advertising Policies.
How to fix: We suggest promoting your product or service without using a zoomed-in body image.
If you think your ad follows our Advertising Policies, you can appeal this disapproval.”
Thompson responded as follows, using the “Appeal Button”:
While the ad fleetingly (less than 3 seconds out of 30) uses stylized zooming to capture the actress’ engrossed facial expression and details of the sparkles on her costume, the focus of the ad is theatre seats and playing with a toy gun. This ad clearly reflects the product being advertised: a show about America set in a carnival shooting gallery.
After a short time, he was once again notified that the ad was approved.
On Sunday morning, October 22, Thompson heard from Facebook once again, to reaffirm the approval of the ad, as follows:

Thank you for notifying us about your ad disapproval. We’ve reviewed your ad again and have determined it complies with our policies. Your ad is now approved. Your ad is now active and will start delivering soon. You can track your results in Facebook Ads Manager. Have a great day!

Given the carnival atmosphere of the ad in question, one might wish to simply chalk this up as a comedy of errors. But it is a microcosm of the challenges of having information consolidated within the control of too few hands, especially when the ability to communicate is arbitrarily or erratically denied. While this instance pertains to arts marketing, across the massive universe of Facebook, it’s impossible to know what else might be getting censored, and how such situations are – or are not – being resolved.

This post will be updated the situation warrants.

Keynote: School Theatre Can Be More

October 18th, 2017 § Comments Off on Keynote: School Theatre Can Be More § permalink

The Florida Association for Theatre Education invited me to be the keynote speaker at their annual conference, held in Orlando October 12-14, 2017. The text below represents an edited version of that address, which was written to be spoken, not read, so please forgive oratorical repetitions, some of which will have been minimized already. There were various ad libs during the course of the speech which, I’m afraid, have now escaped me.

*    *    *

At the risk of telling you things you know all too well, since it is you who do the teaching and I who spend my time opining on theatre, sometimes from in the midst of the fray and sometimes from the sidelines, especially when it comes to school theatre and theatre education. School theatre, whether academic or extracurricular, is of course the teaching of the practice of making theatre – learning and understanding a text, interpreting it through writing, direction, design and performance.

School theatre is a bonding experience for students, a place where those with a common interest can come together with like-minded peers. Theatre is a place where students who may not fit some arbitrarily perceived model of “typical” can find others who are like them at their cores, drawn together by a need to express themselves or support the expressions of others, rather than by throwing or hitting a ball into or over a net, or a wall, or a hoop. School theatre is teamwork without fractures and brain trauma. School theatre is a place where open displays of emotion are not only accepted but encouraged. School theatre is a place where students can become someone other than who they are on the way to becoming who they will be. School theatre is a place where students can play a role in making hundreds of people laugh, or cry, or applaud as one, in response to what they’ve done.

As I said, doing what you do, you know all of this and more. Believe me, even though you may not hear it often enough, there are many people who applaud and appreciate you for your role in all of this, as I do. Indeed – and I know all too well the countless challenges you face – at times I envy you, because what you do has so much meaning in the lives of your students. You are the teachers who are in a position not just to be liked and appreciated, but loved and remembered.

*    *    *

So why, if I perceive all of this achievement, do I say that school theatre can be more? I say it because of some of the work that I do, that I have chosen to do, or perhaps has chosen me, almost as if by accident.

As some of you may know, over the past half-dozen years, I have become a vocal advocate against the censorship of school theatre. By virtue of the jobs I’ve had – including running theatres and the American Theatre Wing – my voice is given some credibility. Once I was no longer constrained by those jobs, I found myself using that voice in new ways.

It began with a blog post about a show I know well, at a school near where I grew up, an arts magnet high school, with a majority population of students of color, which was in the process of canceling a production of August Wilson’s Joe Turner’s Come and Gone, over its use of the n-word. Because I have written at length about this incident, I will jump to the conclusion, which is that the show did go on, and it was presented without altering the words of one of America’s greatest playwrights. My voice was one among many; please do not think I am taking or deserve sole credit.

Since then, I have had occasion to advocate and even fight for any number of shows to be done in high schools and colleges, and for them to be performed just as they were written. The list includes – and in some cases there have been several instances of these shows, not just one-offs – Sweeney Todd, Spamalot, Legally Blonde, Rent, Almost Maine, The Laramie Project, Ragtime and more.

What I have seen over these years, as I have looked at school theatre and read about it, as I have parsed The Educational Theatre Association’s annual list of the most-produced shows, is an inclination to play it safe, to avoid potential conflict, to stick with the tried and true. This comes from school administrations, from school boards, from parents, from community groups, who think that school plays should just be good fun, that they should be appealing for ages eight to eighty.

I am all for fun. I love to be entertained. I understand why the list of the most produced musicals in high schools is now made up largely of titles drawn from popular family films and the biggest Broadway hits.

But I worry that these shows dominate school theatre not because they are the best shows or even the shows students are most interested in, but because they aren’t going to offend or even annoy anyone at all – and because they’re familiar titles that help sell tickets. As a result, while students unquestionably learn many things from being a part of school theatre and any show that’s chosen – rigor, structure, teamwork, and so on – they aren’t necessarily learning from the shows themselves. Yes, most family musicals have clear morals and lessons, but they are simple and surface. Students don’t have to look to find them and they certainly don’t have to struggle with them.

I favor that struggle.

*    *    *

Many of you may be aware of a recent study out of the University of Alabama which shows that students who see theatre learn from it in ways they don’t from watching a film, even a film of the same story. As the authors of the study wrote, “Theater is a window for students to a broader world. Exposure to that broader world may increase their understanding and acceptance of that broader world, which is why we see increases in Tolerance and Social Perspective Taking. Plays may be more effective than movies in helping students understand and accept that broader world because we react differently to human beings acting out a story in front of us than to representations of human beings on a screen. The in-person experience may create greater emotional connections.”

Now think about the fact that this study is simply about seeing theatre. It doesn’t begin to address the experience of making theatre.

It’s worth noting that, as I’ve spread this study around on social media, many people have responded by saying, “Well of course.” “We knew that.” “It’s obvious.” But that’s a response that’s only obvious to those who are already supporting theatre, who already believe in theatre, who already frequent theatres, who already teach theatre. However, that it was demonstrated in a controlled experiment is the kind of evidence-based proof we need about the value of theatre, about its ability to evoke empathy. Keep that study, and others like it that you may know of, very close and accessible. You never know when you might need them.

But just think: if that’s what’s happening in spectators, imagine what theatre is doing, imagine what theatre can do, for students who make theatre. Of course, you don’t have to imagine it, because you see it, you foster it.

As I proceed here, I would ask you to understand that even if the examples I give touch upon the kind of work you do, that I’m not here to criticize anyone’s choices. As I hope I’ve established, I place tremendous value in what you do. Some of you may already work from the mindset I advocate; others may not by choice or by the strictures of policy. All I am asking is that you think about whether you can expand the range of what you undertake. Can you make school theatre more?

*    *    *

The body of dramatic literature, and I include musicals in that, is pretty vast. Yet as the Educational Theatre Association’s own research, extensively studied by National Public Radio a couple of years ago has shown, when it comes to plays, the most produced plays in high schools – with the exception of Almost, Maine and more recently Peter and the Starcatcher – are mired in the work of the 1930s, 40s and 50s.

Why is that so? Is it because plays ceased being worthwhile some 60 years ago? No, that’s not the case. Yes, the language of plays may have become more expansive as taboos were broken, but that doesn’t mean every play contains language or subjects that might not be appropriate in a school setting.

Probably a more significant trend is that casts have become smaller, in order to become more producible commercially, and that doesn’t work well for those school programs with a lot of students vying for roles. Another is the fact that fewer plays are produced each year on Broadway, and so the titles are less familiar, the repertoire less known to the average person. That Almost, Maine broke out the way it has is extraordinary and singular, considering it never played Broadway and didn’t have any significant commercial success, not to mention that it was intended for four actors.

Interestingly, a play that is often produced – and often challenged – is The Laramie Project, and its appeal for many schools is something that it has in common with Almost, Maine. Just because it was written for a smallish cast playing multiple roles doesn’t mean it has to be. Almost, Maine’s four actors can become 20 or so, and Laramie Project can accommodate dozens. They are often produced because of the need for a large cast play, rather than content.

But of course Laramie Project talks of issues that have little in common with You Can’t Take It With You and Harvey, two regulars from the Educational Theatre Association list. LGBTQ rights, murder, justice, guilt, redemption – that’s what the real people portrayed in Laramie must cope with, and what the students who portray those people must understand. That may be “too much” in the eyes of some authorities, yet do students learn more from enacting the lives of people addressing a tragic hate crime or from the fairy tale story of a lonely ogre seeking acceptance? Both have lessons, but which runs deeper, which offers more?

Which prepares students for the larger world, for the world they live in, the world they will face? The vast majority of your students will not become artists, but they are all citizens of this country, of this world. Can the work you do with them be more than just about developing skills and empathy, but about preparing them to look at life both critically and compassionately? Indeed, can school theatre speak directly to their lives as they are now?

The shows I referenced are but two examples, and I’m not here to advocate for one and slam the other. They are just two shows that you’re all likely to know.

In research conducted by EdTA, the discussion of social issues discussed in theatre classrooms and productions between 1991 and 2012 has dropped precipitously. Here are some numbers: multiculturalism, down 10%. Drug and alcohol abuse, down 20%. Divorce and single parent families, down 20%. Teen suicide, down 20%. The topic of bullying, not even listed in 1991, is way up, yet the subject of teen suicide is down? How does that even make sense?

Not only can school theatre be more, school theatre has been more. There is more school theatre than ever, but it is retreating to safety, it is avoiding struggle.

*    *    *

In considering this issue, I believe there is an even more central question that often isn’t easily answered: who is school theatre for? In my work, I have developed my own hierarchy, and I apply it rigorously when considering situations that arise in school theatre, and how my own work may apply to it. But even if we do not see eye to eye on many things I’m discussing, I hope you may find this applicable no matter what your perspective may be.

First and foremost, I believe that school theatre is for the students who choose to do school theatre. That is the core constituency to be served, that is who must benefit most. This may seem obvious, but I have seen situations where this fact is forgotten, especially when programs face any type of crisis.

Secondly, I think school theatre is for the other students in the school. These are the peers of the students who participate, and they may be drawn in to the theatre, the auditorium, the converted cafeteria. They may well be affected by what they see, and indeed while they may not choose to participate in theatre subsequently, they may seek out other theatre in the months, the years, the decades to come.

Third, school theatre is for parents, so they can experience and appreciate what their children choose to participate in, and see their talents, whether its manning a spotlight or singing center stage.

Fourth, school theatre is for siblings and extended family, for much the same reasons as parents, but for reasons I’ll explain in a moment, they should not be lumped together.

Fifth and finally, school theatre is for the community at large, that is to say parents of non-participatory students and those in the community who have no direct connection to any current student or students at the school.

I imagine these five groups as a series of concentric circles, with the central circle being the students who participate in and study theatre at the center, then widening out to the other groups.

Why do I separate parents from the rest of families, and those without students in the program or at the school at the fringes?

First, because the choice of what is done in school theatre should not be constrained by the need to appeal to siblings younger than the students themselves. Yes, it’s a treat when younger siblings can see their brothers and sisters on stage, but that should not drive play choice. High school material should not be infantilized for the entertainment of middle school and elementary school students; middle school plays shouldn’t be comparably limited. To do so does a disservice to the core constituency, the students at the center.

That’s also why those without any direct stake in the drama program, or even the school, are at the farthest ring from the center – because those who have no stake shouldn’t drive the educational priorities of theatre. School theatre shouldn’t be looked at as a public relations tool with which to entertain the community at large, since doing so diminishes the focus on the students themselves.

I have been challenged on this by people who say that all theatres have to keep audiences in mind when planning their programming, so kids should learn about that now. To them I say, yes, you’re right about the professional world, but this isn’t professional theatre, this is school theatre. And I refer back to my concentric circles and point to who is at the center, who is most important, and it’s the students studying and making theatre.

*    *    *

I appreciate that there are many school theatre programs that are required to be self-sustaining financially. That gets my blood boiling, because sports programs are rarely saddled with the same requirement. But I must accept a certain reality. To that I say that excellent work with students will, over time, develop respect for what is undertaken, regardless of whether schools are producing familiar, safe titles or not.

I imagine that many of you have read Drama High by Michael Sokolove, or know of the program that Lou Volpe built in Levittown PA and which Tracey Gatte carries on today. Did you know that beginning this spring, that book will be a NBC TV series, called Rise? That’s right – what music teachers got with Glee, you will now get, only better, because your story will be told by the producer and writer who created the series Friday Night Lights.

If ever there was a moment for school theatre to step up to the next level, to be more, this is it. If Rise turns into a popular hit, if it runs, you will have the greatest tool imaginable to build the case for and the strength of your work, your programs, your students. Because you won’t be doing it alone. You’ll have a TV network behind you, 22 episodes a year.

*    *    *

Whenever I get involved in an issue regarding school theatre, about a challenge to school theatre, I am usually told early on, “You have to understand, this is a very conservative community.” Never once have I been told, “Oh, this is an incredibly liberal community.” It just doesn’t happen. Those words were said to me sotto voce about the prevailing sense of Florida and Florida education when I was invited to speak with you today. As you can see, I was undeterred.

I hope you’ll notice that nothing I’ve said today is explicitly political, in terms of liberal or conservative, red state or blue state, because when it comes to allowing students to learn, to creating opportunities for students to learn, I believe there must only be knowledge. When it comes to theatre, there must always be discovery.

Yes, there are those who will take my having spoken about The Laramie Project as political, because it portrays the aftermath of the killing of a gay youth 19 years old this week. But that murder is a crime is not a political position, it’s a commonly held moral position. That the play explores a wide range of community response to that crime is not political, it is human and humane. But let me leave Laramie be, and mention some shows you may want to think about, if you haven’t already done them, even in contrast with some shows you likely have done.

I am here in the south and I suspect that many of you have done, or considered, To Kill A Mockingbird. I for one hope schools will begin to look beyond that story, beloved as it is, because it is the story of a white man who must save a black man, and how his white household is affected by that decision. It is a white savior narrative. There are few roles of any size for black actors, let alone Latinx actors, or Asian actors, and race is important to the telling of the story. If you choose to do the show, then I urge you to think about how you cast it, not turning a blind eye to race, but with consciousness about how interracial casting can affect that story.

Alternately, if you are in a school with a significant black population, think about doing one of August Wilson’s plays, because they will open up not only your stages, but conversations you couldn’t have imagined. Think about the plays of Quiara Alegría Hudes, if you have Latinx students. Think about the plays of Lynn Nottage, of David Henry Hwang; of musicals by Jeanine Tesori that aren’t just Thoroughly Modern Millie and Shrek. Whatever you do, don’t make the assumption that your production must look like the original production, don’t assume that unless a cast of characters says that a character is black, Asian, Latinx, Middle Eastern, Native American that it must be played by a white student. You can make school theatre more, you can make shows more, at times, by going beyond what has been before.

I know that between multiple classes and shrinking resources it can be difficult, but I know that drama teachers, like their students, when push comes to shove, always do more, step up and achieve more. So I say once again that I am not here to make the assumption that some of you aren’t already doing this, but to be your cheerleader, in the same way that I know you inspire your students to more. If you need help, if you meet challenges, know that I’m available to help you, and I know many, many more people working professionally who will do so as well.

That’s why when Ragtime was going to be edited by school administrators without approval in Cherry Hill New Jersey earlier this year, which would have lost them the rights to the show entirely, Brian Stokes Mitchell not only spoke up for the show, he went and met with students, teachers and the local NAACP in Cherry Hill to make sure the show went on. In fact, the debate over Ragtime in Cherry Hill achieved something all too rare – that production of Ragtime became required viewing for every student in the school, all 2400 of them. That meant that theatre was more, because it prompted conversations that didn’t stop at the auditorium doors, but permeated English classes and history classes in the weeks and days surrounding that production. Sadly, it took a crisis for that to happen. Wouldn’t it be something if school theatre was something every student always had to see? After all, as I alluded to earlier, we must create not only the artists of tomorrow, but the audiences as well.

*    *    *

Because I am an endless rewriter, and was working on this as late as this morning, I am going to take what seems like a sudden turn in topic before I close.

As I have read and heard this week, as many of us have, about the despicable and vile behavior of Harvey Weinstein, it has been tempting to blame it only on the wonton ways of Hollywood. But his behavior is not unique to Hollywood, it is sickeningly suffused through every part of American life where men hold power over women, where people hold power over one another. Some of you may have had your own comparable experiences, and that is profoundly troubling and infuriating.

Theatre is not immune to this: just over a year ago a small theatre company in Chicago, Profiles Theatre, shut down suddenly when its own culture of sexual harassment and abuse – in the guise of art – was brought to light after decades. Audiences learned that what seemed to be intense emotional performances were instead at times abuse being played out for them – it had gone beyond acting, beyond safety, into horrifying reality and been offered to them as if it were artifice.

Last week, The New York Times finally got people speaking on the record about Harvey Weinstein, just as when the Chicago Reader got people speaking on the record about Profiles Theatre. More stories will emerge, sad to say – but maybe, just maybe, this will serve to stem the generational tide of abuses of power to obtain sexual gratification, to obtain control.

Why do I bring this up in the context of school theatre? First, because we must together make clear that such behavior is unacceptable, it isn’t art and that it must be called out and stopped. But also speak of it because theatre can teach students that they have voices and can use them, that they should not be afraid to stand in the spotlight and say what must be said, or to shine a harsh light on transgressions, on injustices that must be stopped. If they have the chance to tell stories that engage with what is difficult in the world, indeed with what may be wrong in the world, alongside telling stories that bring joy and entertainment into the world, then their work in theatre makes them better actors, writers, directors, designers and technicians. But it also makes them better people, and better citizens, with knowledge, gifts and understanding that will be of value to them whatever they may be in life.

Theatre can be more because theatre is not an end unto itself. It is a microcosm of life, and there are so many lives to be understood and stories to be told. It should never be too soon to start telling them in the incredible diversity and variety, whether spoken, sung, danced or all three together. Thank you for giving of yourselves to help your students tell stories not just in your classrooms and on your school’s stages, but for the rest of their lives.

 

Telling James Franco’s lawyer, “Your client does not have any valid claim”

September 28th, 2017 § Comments Off on Telling James Franco’s lawyer, “Your client does not have any valid claim” § permalink

This summer, when an attorney for actor James Franco sent New York’s People’s Improv Theatre a cease and desist letter regarding the venue’s planned presentation of the play James Franco and Me, PIT’s response was to cancel the booking. At the time, Kevin Broccoli, author and performer of JF and Me had no legal representation, and so the stories that emerged were that Franco had successfully shut down the production, as highlighted in numerous media outlets, including  The New York Times and Rolling Stone.

Among the organizations that stepped in to assist Broccoli were the Arts Integrity Initiative and the Dramatists Legal Defense Fund, and in August, DLDF secured the pro bono services of the law firm Davis Wright Tremaine to represent Broccoli in an effort to insure his play could be seen. Yesterday, DWT responded in writing to Thomas Collier, the attorney at Sloane, Offer, Weber and Stern, who had sent the original cease and desist, asserting that it was without foundation and that Broccoli may present the play and companies may produce it under the protections offered by the First Amendment.

In a statement to Arts Integrity, Broccoli said, “I’m truly amazed at the amount of support my play has received since July when this story broke.  I’m very grateful to Davis Wright Tremaine, especially Nicolas Jampol and Kathleen Cullinan, who have been working tirelessly, and to Dramatists Legal Defense, who helped connect me with them.  Right now it appears that there’s an opportunity to do the play at several theaters across the county, including New York, and that’s really been my goal from the beginning.”

Jampol’s letter to Collier asks for a response within two weeks. The full text, with all legal citations and footnotes, appears below. It makes for fascinating reading and important information for playwrights.

*     *     *

We represent playwright Kevin Broccoli in connection with your client James Franco’s attempt to pressure theatrical venues into cancelling performances of Mr. Broccoli’s play James Franco and Me (the “Play”). In particular, we write in response to your July 7, 2017 cease-and- desist letter to the People’s Improv Theater, which resulted in the cancellation of several performances of the Play.

For the reasons explained below, we are confident that your client does not have any valid claim in connection with the Play. Contrary to the assertions in your letter, the First Amendment provides playwrights and other creators of expressive works – including both your client and Mr. Broccoli – with robust protection against the claims you threatened. Put simply, Mr. Broccoli does not need Mr. Franco’s permission to perform the Play, and will perform the Play as he desires. Mr. Broccoli also reserves the right to take legal action if your client continues to interfere with his contractual relationships with theatrical venues.

The Play

In the Play, a character named Kevin – which is based upon, and typically played by, Mr. Broccoli – sits in a hospital waiting room while his father is dying. The “James Franco” character stays with Kevin during the agony and tedium of awaiting a loved one’s fate in a lonely and impersonal waiting room. Their wide-ranging discussion tackles numerous topics like art, passion, sexual identity, and death, while engaging in a critical exploration of Mr. Franco’s films and television projects, including 127 Hours, Spring Breakers, Pineapple Express, Rise of the Planet of the Apes, General Hospital, Spiderman, Oz the Great and Powerful, and This Is the End, among others.

In addition to exploring Mr. Franco’s works, the Play parodies the public perception of Mr. Franco as a passionate, eccentric actor and artist who fully invests himself in his work. In one scene, for example, the “James Franco” character describes how he emotionally cut off his arm in preparation for his role as Aron Ralston in 127 Hours. In other scenes, the character vehemently disclaims any interest in money, highlighting Mr. Franco’s perception as someone who is not simply interested in pursuing projects for maximum financial gain – he believes in the art, and strives for something more than wealth creation.

Apart from examining Mr. Franco’s career and public perception, the Play also uses the “James Franco” character as a vehicle to explore Mr. Broccoli’s own feelings about life, death, his career, and his relationship with his father against the looming sense of mortality in the hospital waiting room. As one review explained, “this play becomes a kind of meta commentary on life, celebrity, loss, failure and friendship.”1

While not relevant to whether Mr. Franco could establish a valid claim against Mr. Broccoli in connection with the Play, the fact is that Mr. Broccoli is a long-time admirer of Mr. Franco and his work, and the portrayal is overwhelmingly positive. The Play specifically refers to Mr. Franco as “one of the most spontaneous and unique performers of his generation,” and explains that if Mr. Franco “stands for anything, it’s artistic simplicity.”

Mr. Franco Has No Viable Right-of-Publicity Claim

The First Amendment protects Mr. Broccoli from any right-of-publicity or misappropriation claim in connection with the “James Franco” character in the Play. Under well-established law, celebrities simply do not enjoy absolute control over the use of their name and likeness, particularly in an expressive context, such as a play.2 Mr. Franco has benefited from this principle in numerous of his works with characters that were based on, or inspired by, real people and events.

In Sarver v. Chartier, 813 F.3d 891, 896 (9th Cir. 2016), for example, an Army sergeant brought right-of-publicity claims against the producers of the film The Hurt Locker, which featured a fictional character that the plaintiff contended was based on him. In affirming the dismissal of the claims, the court explained that “The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.” Id. at 905. Almost four decades earlier, in Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 862 (1979), Rudolph Valentino’s nephew sued over a television movie titled Legend of Valentino: A Romantic Fiction, a fictionalized version of his uncle’s life. In rejecting the claim, Chief Justice Bird wrote for the majority of the court in a now-widely-cited concurrence3 explaining that the First Amendment protected the film against plaintiff’s cause of action for misappropriation of Valentino’s name and likeness:

Contemporary events, symbols and people are regularly used in fictional works. Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality. The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment. Surely, the range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction. Id. at 869.4

Without these critical protections, content creators would be required to obtain approval from any real person – or such person’s estate – depicted in a television series, motion picture, or theatrical production, which would allow them to veto controversial or unflattering portrayals. This would place a significant restriction on the marketplace of ideas and would have prevented the production of acclaimed films such as Spotlight, The Social Network, and Selma. As mentioned above, Mr. Franco himself is no stranger to depicting real individuals, including in Milk, Lovelace, and Spring Breakers, among many others.

Mr. Broccoli uses the “James Franco” character to comment on Mr. Franco’s career and public perception, while using it as a vehicle to explore Mr. Broccoli’s feelings about his own life and work, among other topics. In other words, in addition to dealing with a matter in the public interest – Mr. Franco and his career – the Play uses the character to enable Mr. Broccoli to “more persuasively, or more accurately, express [himself].” Guglielmi, 24 Cal. 3d at 869. See also Comedy III Productions, 25 Cal. 4th at 397 (explaining that “because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression”). As a result, the Play enjoys broad protection under the First Amendment and against any potential right-of-publicity claim that Mr. Franco might assert.5

Mr. Franco Has No Viable Trademark-Infringement Claim

The Lanham Act and state trademark law do not exist to imbue trademark owners and celebrities with the unrestricted power to prevent the unauthorized use of their marks or names in expressive works. Instead, trademark law is “is intended to protect the ability of consumers to distinguish among competing producers, not to prevent all unauthorized uses” of a mark. Utah Lighthouse Ministry v. Found. for Apologetic Info., 527 F.3d 1045, 1052 (10th Cir. 2008). Based on the Play, no reasonable viewer would be confused into thinking that Mr. Franco had sponsored or approved the Play – in fact, the Play makes clear that the “James Franco” character is a fictionalized version of Mr. Franco, and there is absolutely nothing in the Play that suggests or implies that Mr. Franco himself had any involvement in the Play. The implausibility of consumer confusion would bar any trademark-infringement claim here.

Even if Mr. Franco could somehow establish the elements of a Lanham Act claim, it would still fail because the Play is an expressive work entitled to full First Amendment protection. When a Lanham Act claim targets the unauthorized use of a mark in an expressive work, the traditional likelihood-of-confusion test does not apply because it “fails to account for the full weight of the public’s interest in free expression.” Mattel v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002). Instead, such claims must pass the Rogers test, which bars any Lanham Act claim arising from an expressive work unless the use of the mark “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). The Rogers test is highly protective of expression, and has since become the constitutional threshold for Lanham Act claims arising from the unauthorized use of marks within expressive works.6

The first prong of the Rogers test is satisfied if the alleged mark as any artistic relevance to the underlying work. See Rogers, 875 F.2d at 999. Courts have interpreted this requirement to mean that “the level of artistic relevance of the trademark or other identifying material to the work merely must be above zero.” Brown v. Electronic Arts, Inc., 724 F.3d 1235, 1243 (9th Cir. 2013) (brackets omitted). The second prong of the Rogers test is satisfied unless the defendant’s work makes an “overt claim” or “explicit indication” that the plaintiff endorsed or was directly involved with the work. Rogers, 875 F.2d at 1001 (“The title ‘Ginger and Fred’ contains no explicit indication that Rogers endorsed the film or had a role in producing it”). This requirement of an “overt claim” applies even where consumers mistakenly believe there is some connection between the mark owner and the expressive work. See, e.g., ETW, 332 F.3d at 937 n.19 (finding that a painting of Tiger Woods did not expressly mislead consumers despite survey evidence that sixty-two percent of respondents believed the golfer had “an affiliation or connection” with the painting “or that he has given his approval or has sponsored it”).7

Because the Play is an expressive work entitled to full First Amendment protection, the Rogers test would apply to any trademark claim Mr. Franco might bring. It is beyond dispute that Mr. Franco’s name is artistically relevant to a play that examines his career and public persona. Moreover, the Play does not make any explicit claim that Mr. Franco endorsed or was affiliated with the Play. To the contrary, Mr. Broccoli made clear in press interviews that the “James Franco” role would be played by different actors – not Mr. Franco8 – and never made any statement or suggestion that Mr. Franco sponsored or was otherwise involved with the Play. Accordingly, because the Rogers test is easily satisfied, the First Amendment bars any trademark-infringement claim by Mr. Franco.9

Mr. Franco Must Cease Interfering with the Exhibition of the Play

We request that Mr. Franco stop interfering with Mr. Broccoli’s right to exhibit the Play, and Mr. Broccoli expressly reserves his right to pursue a claim for such interference. Despite the fact that he can rightfully exhibit the Play without Mr. Franco’s permission, Mr. Broccoli is still an admirer of Mr. Franco, and is willing to engage in dialogue with him or his representatives regarding any specific objections he has to the Play or whether any particular disclaimer would alleviate Mr. Franco’s concerns. Like Mr. Franco, Mr. Broccoli is dedicated to his artistic craft, and despite his legal right to exhibit the Play without Mr. Franco’s permission, he would prefer to focus his time and energy on the Play, and not this dispute.

 

Footnotes

1 https://www.broadwayworld.com/rhode-island/article/BWW-Review-Unique-and- Hilarious-JAMES-FRANCO-AND-ME-At-Epic-Theatre-Company-20161121.

2 As one court explained in affirming the dismissal of a right-of-publicity claim arising from a film, “[t]he industry custom of obtaining ‘clearance’ establishes nothing, other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.” Polydoros v. Twentieth Century Fox, 67 Cal. App. 4th 318, 326 (1997).

3 See Comedy III Productions v. Gary Saderup, 25 Cal. 4th 387, 396 n.7 (2001) (recognizing that Chief Justice Bird’s concurrence “commanded the support of the majority of the court”).

4 Chief Justice Bird also explained that it would be “illogical” if the First Amendment allowed the defendants to exhibit the film, but prohibit them from using Valentino’s name in advertising for the film. Id. at 873. See also Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 325 (1997) (holding that the use of the plaintiff’s name and likeness in a film was not an actionable violation of the right of publicity, and thus “the use of his identity in advertisements for the film is similarly not actionable”).

5 The transformative-use defense would provide another layer of constitutional protection against a right-of-publicity claim because Mr. Franco’s likeness is “one of the ‘raw materials’ from which an original work is synthesized,” and his “likeness is so transformed that it has become primarily the defendant’s own expression.” See Winter v. DC Comics, 30 Cal. 4th 881, 888 (2003).

6 See, e.g., Cliffs Notes v. Bantam Doubleday Dell, 886 F.2d 490, 495 (2d Cir. 1989) (holding that “the Rogers balancing approach is generally applicable to Lanham Act claims against works of artistic expression”); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 n.11 (6th Cir. 2003) (explaining that the Rogers test is “generally applicable to all cases involving literary or artistic works where the defendant has articulated a colorable claim that the use of a celebrity’s identity is protected by the First Amendment”); E.S.S. Entm’t 2000 v. Rock Star Videos, 547 F.3d 1095, 1099 (9th Cir. 2008) (“Although [the Rogers test] traditionally applies to uses of a trademark in the title of an artistic work, there is no principled reason why it ought not also apply to the use of a trademark in the body of the work.”); Univ. of Alabama v. New Life Art, 683 F.3d 1266, 1278 (11th Circ. 2012) (expressing “no hesitation in joining our sister courts by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark,” and applying Rogers to “paintings, prints, and calendars”).

7 Similarly, the Rogers court found that the defendants did not expressly mislead despite evidence that “some members of the public would draw the incorrect inference that Rogers had some involvement with the film.” 875 F.2d at 1001. The court explained that any “risk of misunderstanding, not engendered by any overt claim in the title, is so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.” Id.

8 http://www.providencejournal.com/news/20161107/theater-review-intriguing-james- franco-and-me-at-cranstons-epic-theatre.

9 Any unfair-competition claim would fail for the same reasons as a right-of-publicity or trademark-infringement claim. See, e.g., Kirby v. Sega of America, 144 Cal. App. 4th 47, 61-62 (2006) (where First Amendment barred plaintiff’s misappropriation and Lanham Act claims, it also barred her unfair-competition claim).

The Stage: Critics should learn the language of disability

September 17th, 2017 § Comments Off on The Stage: Critics should learn the language of disability § permalink

Madison Ferris, Sally Field, and Joe Mantello in The Glass Menagerie (Photo by Julieta Cervantes)

Sam Gold’s production of Tennessee Williams’ The Glass Menagerie produced a wide range of critical responses when it opened last week, and that surely wasn’t unexpected. Based upon Gold’s 2015 staging for Toneelgroep Amsterdam, it is a radically deconstructed version of the play, different in look and feel than most (presumably) of those that came before it.

Where Gold’s staging likely differs from the vast majority of its predecessors is in the director’s decision to cast Madison Ferris, an actor with a mobility disability (in her case deriving from muscular dystrophy) in the role of Laura. Williams’ text certainly made clear that Laura had a mobility disability, but it has been traditionally played with a limp, or perhaps a leg brace.

Ferris uses a wheelchair, on stage and in daily life. There is no question that the physicality of Laura in this version is different than what Williams’ described, but so is much of the production. The casting of Ferris, like any other element of the production, is certainly fair game for critical consideration. But some of the language that emerged in critics’ efforts to talk about Ferris’ performance is striking.

We read that Laura, or the actor who plays her, is “physically challenged”. She has a “physical handicap”. She is “wheelchair-bound”. She “suffers” from muscular dystrophy. That these terms are largely eschewed by the disability community, which finds such terminology patronizing, insulting, archaic, misinformed or some combination of all four, seems to have escaped many writers (these examples are all from different reviews, from major outlets) and their editors.

Another review, after explaining how Ferris negotiates a set of steps with some help from other actors, describes the act as “an agonizing process, painful to watch, and a forceful symbol of the physical burden Amanda has to shoulder”. Still another wonders, “Why is Ferris’ disease called upon to generate a spectacle?” One critic says that the casting “blurs the boundary between character and actress.”

Performers with visible disabilities are rarely seen in the commercial world of Broadway, with notable exceptions being the Deaf West Theatre productions of Big River (2003) and Spring Awakening (2015), the latter casting Broadway’s first wheelchair-using actor. So the unfamiliarity that arts journalists now display regarding how they write, or speak, about disability is perhaps understandable, but that doesn’t excuse it.

To declare someone with a disability a burden on their parents, no matter the circumstance, is judgmental ableism. Does a disability that blurs the line between actor and role blur it in some undefined way that all other acting performances manage to escape? How can someone be “wheelchair-bound” in a production where the actor and character regularly move in and out of the chair?

While most, but not all, of the quotes above are from negative notices, they demonstrate the degree to which the writers are perhaps uninformed about or uncomfortable with disability. It reveals much more about them than about the production, displaying their lack of personal experience and perhaps even their fear of disability and people with disabilities.

In a week when British audiences have learned that Mat Fraser will play Richard III, and a call has gone out in the US theatre community seeking an actress of color with a mobility disability for yet another Glass Menagerie, artists with disabilities and those who advocate for them (and until recently, I was employed as the latter) have reason to be encouraged. But arts journalists owe it to the artists they cover, and the audiences for whom they report, to get up to speed with language surrounding disability. They can like what they see or not, but perhaps they would do well to avoid giving (often significant) offense where, I would hope, none is intended.

 

This post originally appeared in The Stage newspaper.

The Stage: Mourning playwright AR Gurney and the end of an Off-Broadway era

September 15th, 2017 § Comments Off on The Stage: Mourning playwright AR Gurney and the end of an Off-Broadway era § permalink

Andrew Keenan-Bolger and Carolyn McCormick in A.R. Gurney’s Family Furniture at the Flea Theater. (Photo by Joan Marcus)

Playwright AR Gurney would have found great irony in the fact that his life was commemorated at Broadway’s Music Box Theatre this week because, despite his success, Broadway was never much of a home to him.

Only four of his nearly 40 plays ever made it to the Great White Way, and the longest run was for his 1987 work Sweet Sue, which eked out six months including previews. Gurney attributed that entirely to the presence of Mary Tyler Moore and Lynn Redgrave in the four-strong cast.

The playwright, known to one and all as Pete for reason long lost to his family lore, had a career that flourished Off-Broadway and in regional theatres. When he died in June at the age of 86, there were the appropriate obituaries for such a successful and prolific man of the theatre. But there were few critical surveys of his career, or think pieces about what his plays had meant, like those that followed the deaths of Edward Albee and Sam Shepard.

Gurney’s work was never groundbreaking, but it resonated strongly with audiences of many ages, even though it was steeped in the lore of the white Anglo-Saxon Protestants who had dominated America for many years.

From the very start, Gurney was quietly, subtly rebelling against his genteel upbringing, simultaneously taking pleasure in the traditions that had surrounded him growing up while poking fun at them theatrically.

At Tuesday’s memorial, it was noted that his father took genuine displeasure at Gurney’s chosen career and the sentiments expressed in his plays. Despite that, until his father’s death, he was always billed as A.R. Gurney Jr., out of respect.

As it happens, I first had the opportunity to meet and work with Pete in 1984, when I was only two weeks out of college. He had only truly broken through in his career two years earlier, at the age of 52, with his comedy The Dining Room.

While he was fond of noting the critical reception for Scenes from American Life in 1971, it was The Dining Room that made his name, and allowed him to stop teaching full-time – that alternate profession had sustained him for two decades. He didn’t fit the model of an emerging playwright in appearance, demeanour or choice of dramatic subjects.

I didn’t quite realise this at the time, and I treated him as I treated every artist I met in my earliest years: with something approaching awe. But Pete’s warmth and genuine interest in every person he met led to a professional friendship that lasted the rest of his life, even though he was only three years younger than my dad. When I took a new job in 2003, he called me to say he was proud of me – the most paternal gesture I can imagine, and one that I will never forget.

Being a younger, Jewish man, Pete’s works held a certain anthropological fascination for me. As I watched his plays over the years, often with audiences that seemed to have stepped out of his plays – as did much of the crowd at his memorial – it struck me that they were coming to see their way of life satirised, criticised and – perhaps against their will – eulogised.

Pete’s particular gift, lost to the casual observer, was that he managed to do this without giving offence. I liked to say that his audiences recognised his characters as the family down the street, but never as themselves.

At the memorial, actor Holland Taylor, who had worked with Pete often, said: “He may have hung his heritage out to dry, but he was always dressed in it the next day.”

Pete’s greatest success was certainly his play Love Letters, which was translated into 24 languages and produced in 40 countries. In its simplicity, it was perhaps his most structurally daring play: two actors, seated at a table, reading from their scripts, never looking at one another until the penultimate moment, requiring no rehearsal, consisting entirely of a life-long correspondence of unrequited love.

What few recall is that Love Letters followed his uncharacteristic work The Snow Ball. While his plays typically called for a single set and perhaps six actors at most, The Snow Ball took place in multiple locations, called for a cast of about 16, and if memory serves, about 80 costumes.

Yes, I worked on his most technically complex play, and one of his least seen. At the memorial, director Jack O’Brien railed against a now-deceased Boston critic who had derailed its path to New York.

I will miss Pete always, and with that I will miss the Off-Broadway era that allowed him such great success. While his regional productions were legion, and presumably will remain so, we no longer see the days when plays would transfer from Playwrights Horizons, the late Circle Repertory or other not-for-profit venues to sustained commercial runs Off-Broadway, as Pete’s did.

Now plays either move on to Broadway or they finish their limited runs and are lost to New York, more often than not setting the stage for larger audiences and bigger royalties outside of the city than in it.

Pete didn’t mourn the passing of the world in which he was raised; he told me it was culturally bankrupt when I interviewed him in 2015. But with his death I mourn the passing of an era when plays didn’t have to move to Broadway in order to have a chance of survival in New York, and could find ongoing homes in smaller theatres.

Without that, I fear we lose the opportunity to foster emerging playwrights most fully, whether they’re 20-year-old tyros or, like Pete, 50-year-old overnight successes.

At North Shore Music Theatre, An Absence of Race, Ethnicity and Understanding Prevails

September 14th, 2017 § Comments Off on At North Shore Music Theatre, An Absence of Race, Ethnicity and Understanding Prevails § permalink

It’s a bit hard to follow the thinking of Bill Hanney, the owner and producer at North Shore Music Theatre in Beverly, Massachusetts. Initially, it was hard because Hanney was silent, not responding to complaints – initiated by Lauren Villegas of Project Am I Right? – over the lack of Latinx casting in the company’s production Evita, which has no Latinx performers in principal roles and seemingly few in the entire cast.

The theatre’s first response came on the personal Facebook page of Kevin P. Hill, producing artistic director at North Shore, who wrote, in part:

North Shore Music Theatre understands that there has been concern expressed over the casting of our production of Evita. As the recipient of the Rosetta LeNoire Award for non-traditional casting, NSMT has always encouraged performers of all ethnicities to audition for our productions. The cast process for Evita was no different. We made extensive efforts to see as many diverse performers as possible and contracts were offered to many performers of diverse ethnicities, including Latino. Some contract offers were accepted, and others were not. Our talented cast and crew of Evita include professionals from diverse backgrounds – a reflection of NSMT’s vision.

In attempting a defense, Hill brandished an award from Actors Equity with which the theatre was honored in 2003 – under entirely different management. In fact, since NSMT had gone bankrupt in 2009, and Hanney’s ownership began only in 2010, Hill’s citing of an award received by a prior regime, one which carries the outdated terminology of “non-traditional” casting, was a weak public relations move.

Subsequently, in a Boston Globe feature on Constantine Maroulis, who was cast in the role of Che, we got some of the American Idol runner-up’s thoughts on race and ethnicity in casting. Maroulis declared that as part of a Greek American family, he had experienced racial bias, saying, “Even in the late ’70s, moving to an incredibly white suburb and affluent area, we were treated like terrorists at first . . . so I’m not exactly a loaf of Wonder Bread, either.” He went on to declare his thoughts on race in casting, saying, “I don’t think it’s an issue; I think people are trying to make it an issue.”

People were trying to make it an issue because of the long-standing exclusionary patterns when it comes to opportunities for people of color in theatre, film and television. People were making it an issue because while the original Evita in New York, 38 years ago, cast an Italian and a Jew in the roles of Latin Argentinians, the most recent revival featured Latinx actors in the two principal roles, demonstrating that the world has moved forward. North Shore’s casting of the production demonstrates that there’s still a way to go.

In an article in the Globe on September 11, Hanney spoke out for the first time regarding the casting issue. He told reporter Don Aucoin:

“I do colorblind casting,’’ said Hanney. “You have to be able to sing, dance, and act. That’s the criteria.’’

“If a Latino person came in and they were the best, they’d be in my show,’’ he asserted. “We found the right people. Our focus was not to find a Latino. It was to find the right Eva, Che, Peron, etc.”

Of course if the casting was, to use another phrase no longer in favor, truly color blind, then why didn’t Hanney manage to cast any actors of color in the few leading roles Evita offers. Shouldn’t the law of averages have managed to yield even one?  Is it possible that not a single talented person who is Black, Asian, Middle Eastern, Native or Latinx could possibly measure up to the white actors Hanney favored?

But as he followed up in conversation with the Boston public radio station WBUR, Hanney started to trip over his own reasoning:

“I don’t even — I never even thought about that — that type of casting.”

Unless a show calls for a specific ethnicity as in “Miss Saigon” or “Dreamgirls,” Hanney says, he doesn’t consider ethnicity at all.

“If it’s a dance show, which ‘Evita’ is, they have to dance it, they have to sing it, they act it. Those are the three most important things,” he says.

Well, despite its earliest casting, Evita does call for specific ethnicity. While Argentina’s current population is heavily influenced by Europeans who immigrated there a century ago, mixing with the indigenous population, Argentina is a Latinx country. So why wasn’t that taken into consideration? Some color conscious casting seemed called for – by the setting and text, even if it is a show created by two Englishmen who knew little of the actual locale of their show.

Hanney told Playbill that ethnicity in Evita is, as far as he is concerned, irrelevant. “There is no part of the story that speaks to events happening to her or not happening to her because of her race, nor are her actions motivated by her race.”

*    *    *

Taking a deeper dive into the North Shore website, it’s possible to take a closer look at their pattern of casting, albeit on a limited basis. The site shows cast bios and headshots for the current and immediate past season – Evita, Mary Poppins, West Side Story, Spamalot, Funny Girl, A Christmas Carol, Beauty and the Beast, Young Frankenstein and The Music Man (bios and headshots aren’t available for tenth show, Singin’ in the Rain).

With the caveat that race and ethnicity aren’t possible to fully assess based solely on names, professional bios and images, a review of NSMT shows reveals that of 320 performers, including children, it appears that just 21 roles were played by people of color. That’s a total of 6.5% of all actors hired this year and last, a number that would drop by more than half were it not for West Side Story and Evita.

Compare this with the demographics of the area in which North Shore produces. According to data from the Boston Redevelopment Authority, the city of Boston itself has a population that is 47% White, 22% Black, 18% Latinx, 9% Asian, 2% Mixed Race and 2% Other. Expand out to the greater Boston metro area, as defined by The Boston Foundation, and the population is 77% White, 10.1% Latinx, 8.3% Black and 7.2% Asian. Zoom in on Beverly itself, the community where NSMT is located – per City-Data.com, it is 90% White, 3.7% Latinx, 2% Asian, 1.3% Black, 1.3% Mixed Race, and less than 1% Other.

So no matter what yardstick one uses, North Shore Music Theatre only manages to achieve only slightly better than half of the racial mix in its overwhelmingly white town, let alone represent the greater Boston area from which it draws its audience. If NSMT was indeed blind to color, then it would at least match its own community, since presumably talent is distributed equally throughout all racial and ethnic communities. But North Shore, while it does do local casting, also casts out of New York, where there is no shortage of racially and ethnically diverse talent. So are their numbers a result of bias on the part of the theatre or an utter failure of their casting mechanisms? That’s a question with which one hopes they’re willing to grapple. But the only explanation for the failure to match up to their color blind rhetoric lies in there somewhere.

If North Shore were a not-for-profit, the pressures of granting bodies – foundations, corporations and government agencies – might force their hand. But presumably so long as they’re selling sufficient tickets to operate, owner and producer Bill Hanney only answers to the box office. Consequently, he might do well to look at the some of the demographic studies linked earlier, because they show the same story that’s happening in metropolitan areas around the country: whites do not represent the majority of most major cities and soon will not represent the majority of the population of America overall. If he hides behind vague commitments to colorblind casting which aren’t even borne out in his actual casting, then perhaps he’ll gain his awakening on a wholly economic basis. After all, in order to sustain a theatregoing audience for his venue he needs to demonstrate that his seats are open and welcoming to all by proving it through the artists he puts on stage.

Note: because of the limited information on the North Shore website, fuller information on their casting during the Hanney era may yield different results. If North Shore wishes to share that information, data will be recalculated and this post will be revised accordingly.

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