According to an old aphorism, “dog bites man” is not big news, however “man bites dog” is something to report. Consequently, in the arts world, “board of directors fires staff” may be of interest, but it’s hardly novel. “Staff fires board of directors” is something else entirely, and that’s what’s playing out right now in Seattle.

Of course, that’s highly reductive, but the fact is, on April 24, the majority of the staff of Theatre Puget Sound, a theatrical service organization for the greater Seattle community, signed a letter to their board which began, “In good faith, we ask you to resign from the TPS Board of Directors. We do this because you have given us reason to have no confidence in your leadership.” It further read, in part:

We stand united to inform you that we will not continue working under your governance. Should you reject this request for your resignation, we will discontinueour employment by May 7.

TPS is now paralyzed by an atmosphere of distrust and organizational dysfunction of your collective making and perpetuation, and only a newly constituted Board of Directors working in full trust, transparency, and partnership with an appropriately supported Executive Director and staff can effectively govern the organization going forward.

This request is made solely with the best interest of Theatre Puget Sound, its mission, and its membership in mind. In the Summer of 2016 you set in motion a cascade of substantial organizational actions, the inevitable consequences of which cannot now be disguised or avoided.

TPS
 cannot function without the current staff, but it can and will function without the existing Board.

To date, the TPS board has not resigned, and evidences no intention of doing so.

TPS has been going through a good deal of transition lately. Karen Lane, the organization’s longtime executive director, left her post in November 2016, succeeded on an interim basis by Zhenya Lavy, who had joined TPS in September 2016 as Lane’s deputy. According to a report by Rich Smith in The Stranger, the board asserts that it received a letter from Lavy on April 1, “demanding that they end their search for an executive director, install her in that position, and guarantee her a certain salary. If they don’t meet those demands, then she walks May 5. They have until April 7 to respond.” Per Smith, the board did not agree to the demands and reasserted their intention to conduct a full search.

In Smith’s account, “Lavy paints her ultimatum to the board–that they make her executive director or she leaves May 5 – as a matter of survival…even after working there for a few months, Lavy claims the board hadn’t yet outlined a clear job description for her, nor had they discussed pay commensurate to the task. Because she had been working so much since she started –spending upwards of three nights in arrow sleeping in the office, she says– she’d have to leave the company by May 5 in order to save her health.”

When the staff demanded the board resignation, one employee name was absent, that of Shane Regan, listed on the company website as being in charge of “programs” while identified by Smith in The Stranger as “membership programs associate.” Whatever his title, in the immediate wake of these events, an outpouring of comment on Facebook characterized Regan as the popular, most public face of TPS. Shortly before the letter was sent to the board asking then to resign, Lavy terminated Regan, she says for cause. Rumors swirled that he was fired for refusing to sign the letter, but Regan told Smith that he was never asked to sign the letter.

Smith reported that Lavy was suspended for firing Regan without board approval, but board member Shawn Belyea, who is speaking publicly on behalf of the board, told Arts Integrity that that was not the case. While being careful not to discuss matters that about employees that are legally precluded from being made public, Belyea did not cite Regan’s firing as the cause of her suspension, referring instead to the totality of recent events. He affirmed that the hiring and firing of staff members was within the purview of the executive director.

Because the day of Regan’s firing and the staff letter was also supposed to be the day of a board meeting, Belyea cites the circumstances of the meeting’s cancellation as one reason why Lavy has been suspended, even as he notes that because Regan never signed a termination letter, his status is actually now that of being on vacation. Belyea explained:

Unless it’s stated in the bylaws that you will have x number of public meetings or all your meetings will be public or any of those things, standard practice for non-profits is not public board meetings. Nor would there typically be public notice of the board meeting. So if you go back to Monday there was an announcement put out by the staff on the TPS website that said the board meeting is open to the public. Come to the public board meeting of the TPS board. So that alone constitutes some questionable action. Posting that, then sending out a public notice specifically inviting people from the public to come to the board meeting, that is also a very questionable act.

We had two options in this situation as a board. We have to go to the place where it has been incorrectly posted that the public is invited, where we know from other sources that people have been invited and told that the meeting is public. So we are faced with two choices: we have to go in and tell everybody, no, the board meetings are not public and then close the doors and exclude all these people, or we have to cancel the board meeting and do a separate executive session and start doing some investigation into why these things are happening and what is the agenda of the group that is doing them. All of these things happened on the day of the board meeting, so we did not have a lot of time to respond…

There’s a whole series of actions there that we need to investigate exactly who made those decisions, how those decisions came to be made, what the impact of those decisions are, what the legal ramifications of those decisions are, how these things were communicated to the staff, how these things reflect what the staff believes, what are the staff’s understanding of the situation of their decisions – there’s just a tremendous amount of fact finding that we have to do, partly because none of these actions were taken by the board.

Arts Integrity attempted to reach both Zhenya Lavy and staff member Catherine Blake Smith, identified by The Stranger as “membership and communications specialist,” but received no replies. A Facebook post by by former executive director Karen Lane, cited in The Stranger, backed the call for the board to resign.

In the staff’s resignation request, mention is made of legal counsel advising the staff, which led them to proffer the steps by which the board could resign and a new board take over without jeopardizing the company’s not-for-profit status. Belyea said the board has consulted several attorneys on not-for-profit procedure and human resources procedures, and was also being counseled by Josef Krebs at the consulting firm of Scandiuzzi Krebs, with additional support their City of Seattle liaison at the Seattle Center, where TPS manages multiple rehearsal studios.

Bottom line? It’s a mess. It’s also a very public mess, not simply because of the reporting in The Stranger, but because Lavy sent the request for the board’s resignation to a wide cross section of the Seattle community, including the media, leaders of other arts organizations, community philanthropists and more, and even included a pair of internal e-mails by the board. In addition, Lavy attached the theatre’s whistleblower policy, adopted only at the end of February.

This situation will play out for some time in Seattle. Belyea said the board’s investigation of events was not yet complete when speaking on April 20; a public forum on the situation is scheduled for April 27. It is described as follows on the company Facebook page:

The purpose of this meeting is to dialogue with members concerning recent events at TPS and to provide details regarding the upcoming search for the next Executive Director. Part of this discussion will be for the Board to hear feedback on how best to ensure members are meaningfully involved in the ED search process.

It’s worth noting that with Lavy’s circulation of the whistleblower policy, a flaw in that policy may be exposed. While it seems primarily structured to address issues that arise within the staff, within the board, or between the two, it doesn’t seem to speak to when the two constituencies find themselves in the position of questioning the performance of one another as complete entities. While the policy does allow for circumstances where an executive director’s complaints are lodged against the whole board, in which case they are to consult outside legal counsel, the policy does not suggest that such consultation precipitate the removal of the board. Indeed, the board that has the ultimate legal and fiduciary responsibility for the organization.

The circumstances that led to the brinksmanship at TPS are certainly specific to the organization and the individuals involved, both staff and board. Parsing every gory detail won’t serve the larger national arts community, though The Stranger is on the case for those who want more information, and for future study by arts management educators and students. However, the bird’s eye view of the contretemps should serve as a reminder for boards and executive and senior leadership of arts organizations to examine their practices and policies, because while the situation is rare, it demonstrates how a rapid cascade of events can put an arts organization at risk. That it holds the organization up for public examination, while embarrassing, is not necessarily a problem in and of itself, because it forces the organization to address what have surely been long festering concerns and structural issues.

To be sure, there is crisis at Theatre Puget Sound. As of this writing, the organization’s website lists only two staff members; one week ago it listed five. However, while who has acted properly or improperly, and who has the best interests of TPS at heart – and most likely everyone does, just as everyone probably shares some burden of blame for what evolved – are important questions, certainly a thorough reexamination of the organization’s purpose, structure, leadership and governance is vital. It’s regrettable that it took such an adversarial situation to bring it to the fore.

P.S. While it may now be a footnote in regional theatre lore, in 1976, Adrian Hall, artistic director of Trinity Repertory Theatre in Rhode Island, did essentially fire the theatre’s board when they sought to fire him after a controversial season. He replaced them with a board that supported his artistic vision. But that was 41 years ago, and Hall had personally founded the company. Few have tried it since, or at least few have tried and succeeded.

This post will be updated if the parties concerned respond to Arts Integrity’s prior inquiries, and as events transpire.

An earlier version of this post misspelled Josef Krebs’s first name. It has been corrected above.

There’s nothing quite like getting a cease and desist letter.

It may be commonplace if you’re an attorney and you’re receiving a cease and desist claim on behalf of clients, but for artists and arts administrators, at least, there’s a particular chill that accompanies opening a letter (or e-mail) that informs you that if you plan to present, or are currently presenting, a work that the sender feels is in violation of their rights and you don’t stop right away, you’re going to be subject to an assortment of penalties, typically not specified in the first salvo. Cease and desist letters are rather blunt instruments, and unless the artists or companies that receive them had an inkling that what they were doing might tick someone off, they can be quite disorienting, especially if the artists and/or companies don’t have an attorney on speed dial who can help them to determine the best course of action and the ability to pay said attorney to advise them and defend their interests.

According to a report by Rich Smith for Seattle’s The Stranger, Erin Pike, Courtney Meaker and Gay City Arts in Seattle, or some combination thereof, received a cease and desist late yesterday (Friday), demanding the immediate suspension of performances of Pike and Meaker’s thatswhatshesaid, which had given the first of four scheduled performances at Gay City Arts on Thursday evening. Thatswhatshesaid is a two-act theatre piece, performed solely by Pike, which is constructed out of dialogue and stage directions given to women in the 11 most produced plays in the country in 2014-15, as determined by American Theatre magazine. The works on that list include Vanya and Sonia and Masha and Spike by Christopher Durang and Sondheim and Lapine’s Into The Woods. Earlier, briefer versions of thatswhatshesaid have been performed in Seattle, Portland and Minneapolis.

The cease and desist correspondence came from Samuel French, the licensing house which represents some of the works on the American Theater list and are therefore excerpted in the production; Smith’s report doesn’t say whether Dramatists Play Service or Music Theatre International, which also represent some of the works utilized by Pike and Meaker, have taken any action against thatswhatshesaid. Smith’s report also seems to indicate that French’s letter concerns only the use of material from Bad Jews by Joshua Harmon, even though the newly devised work also contains material from Tribes by Nina Raine and The Whipping Man by Matthew Lopez, which are also represented by French.

The report in The Stranger quotes a segment of French’s letter and it seems to be fairly standard cease and desist boilerplate, with the appropriate parties’ names plugged in:

Any such program, publicity, production and/or presentation by you and/or permitted by you constitute and shall constitute the intentional infringement of the copyrights, trademarks and or other rights of our author and subject you and any and all other persons and/or firms involved with the publicity, presentation and/or production to the civil and criminal penalties specified under applicable law.

Should you or any of you permit these unlicensed programs and/or performances to take place and/or be performed, whether at a venue leased, owned or operated by you or otherwise, you and all involved personal shall be held fully liable and accountable as infringers and/or contributory infringers as specified under applicable law.

Accordingly, formal demand is hereby made that you immediately cease and desist from any and all such action by the end of business today, Friday, February 5, 2016, and you confirm that you will not conduct, publicize and/or present and/or permit to be conducted, publicized and/or presented any such program and/or performances.

Failure to do so will expose Gay City Arts, and all individuals acting in concert with these parties, to actions for willful copyright and trademark infringement and other legal claims.

Daunting, no? Enough to scare off lots of those accused of infringing, especially those with limited means, without a fight, right?

Now if Pike were simply standing on stage and sequentially reading every bit of dialogue and stage directions involving the female characters from each play, then what’s going on might be perceived as simple appropriation of copyrighted material, though even that’s not remotely a definitive determination. However, even with male roles excised, the sum total of that dialogue and stage directions could amount to seven or eight hours of stage time. Smith’s review of thatswhatshesaid for The Stranger, posted only seven hours before his report about the legal action, didn’t suggest he’d been at a marathon, but rather that Pike and Meaker had selectively chosen pieces of the various works and woven them into a quilt that yielded commentary on both the specific works, as well as the prevailing attitudes towards women being advanced in American theatre today.

So this seems the appropriate time to bring in the concept of “fair use.”

Your eyes may glaze over the moment someone suggests a primer in the fair use provision of U.S. copyright law, but it’s extremely pertinent here. Copyright law is designed to insure that original works remain the property of those who own them, for a defined period of time, so that they can derive revenue from the material without having it simply taken by others for their own benefit. It is why, simplistically, someone cannot simply retype a novel and publish it as their own work, or why plays can’t be performed without appropriate royalties due to the playwright.

But fair use keeps that ownership from being absolute in all cases. Because fair use allows for parody, Mad Magazine or Saturday Night Live or Key and Peele don’t need to pay the authors of creative works they might riff on. Because fair use acknowledges the value of education, teachers don’t need to pay royalties when their students simply read a play aloud in class. Fair use permits quotations from an original work in reviews and critical pieces about that work, and the same holds true for scholarly works. Fair use also considers whether new work that is in some way drawn from or inspired by an earlier work or works is sufficiently transformative of, and distinct from the original(s) as to constitute a sufficiently original work in and of itself.

But here’s the tricky part about fair use: while there are general guidelines as to what is protected under the fair use provisions, there is no absolute determinant that can be applied in all cases. That’s where lawyers and judges come in and that’s what helps to keep the field of intellectual property law perpetually active.

In Smith’s second report, he indicated that Pike had a plan as to how to proceed in the face of French’s cease and desist letter. That should prove fascinating. But it seems clear that if Pike and Meaker wish to mount future productions of thatswhatshesaid, or publish it, or have it licensed so that others may perform it, they’re going to have to challenge French’s assertions that their piece does violate the copyright protections afforded to Bad Jews, and presumably the other 10 works represented in the piece as well.

*   *   *

I haven’t read or seen thatswhatshesaid, but like many people to whom I’m connected on Facebook, I’d really like to. I wonder whether anyone from French has read or seen it, or if they’re just responding to The Stranger’s coverage of it. Smith’s review was zipping around on my timeline yesterday afternoon between theatre practitioners from all over, and I have to admit that the moment I read it, I thought, ‘Wow, this is going to be an interesting copyright test.’

Without having firsthand knowledge of the piece, or a legal degree, I can’t even hazard a guess as to whether thatswhatshesaid is, even just in my opinion (which counts for absolutely nothing legally), seemingly allowable under fair use, or if the situation is somewhat muddier or even a definitive violation. What I do know is that unless Pike and Meaker themselves were to agree that they were knowingly skirting copyright violation, I’d like to see them pursue their rights to the new work, at least so far as getting good legal counsel about their creation.

In this instance, the new work is using verbatim quotes from other copyrighted works, by authors I admire and several of whom I know, rather than just a general outline of a dramatic/comedic premise, but I can’t help but wonder whether this newly coalescing dispute is in some way akin to what befell David Adjmi and his play 3C. That work was a dark parody of the sitcom Three’s Company, which was proscribed from production or publication for three years until a judge determined that it was permitted under fair use.  That said, there may be a corollary here to the disputes over sampling in music, which in many cases have found that the original creators are due income from the subsequent work since their original material was taken directly, even if it was incorporated into something new.

Some might wonder how, given my advocacy for the rights of playwrights to control their work, I can also express support for what Pike and Meaker have reportedly done. My answer is that we’re dealing with artists on both sides of this issue, and if thatswhatshesaid is genuinely transformative, if it is a critical assessment of those original works achieved through theatrical means, if it parodies those original works by mashing up and using their own words against them, then perhaps it should be allowed to have its own life. I doubt, even without having seen it, that thatswhatshesaid will undermine the value of or confuse audiences about the original works excerpted and collaged within it. I appreciate French’s position in defending their clients, but I’d like to see Pike and Meaker have an equally strong defense too.

Update, 12:30 pm February 6, 2015: I’ve stumbled onto the Twitter account of Courtney Meaker and I’d like to selectively quote from her posts regarding how they proceeded with the second performance of that’s what she said. I share them in chronological order, but not every single post:

• The show went on.
• We redacted all the offending text per the cease and desist letter.
• There will be more thoughts and likely a long essay to be written by me, but I want to say that[…]
• […]as a playwright, I would be 100% on board with someone using my work in this way.
• We held a completely subjective lens up to the work of the top ten most produced plays.
• If my work was ever so lucky as to reach that spot, I would welcome someone dissecting it and taking it out of context.
• I would want to know what someone thinks I’m saying about women using my own words.
• I’m not perfect. I’m not a perfect feminist playwright. I’m me. And I would want to know.

This post will be updated as new information warrants.

Howard Sherman is director of the Arts Integrity Initiative at The New School College of Performing Arts.

Promotional image for thatswhatshesaid (photo by Tim Summers)

There’s nothing quite like getting a cease and desist letter.

It may be commonplace if you’re an attorney and you’re receiving a cease and desist claim on behalf of clients, but for artists and arts administrators, at least, there’s a particular chill that accompanies opening a letter (or e-mail) that informs you that if you plan to present, or are currently presenting, a work that the sender feels is in violation of their rights and you don’t stop right away, you’re going to be subject to an assortment of penalties, typically not specified in the first salvo. Cease and desist letters are rather blunt instruments, and unless the artists or companies that receive them had an inkling that what they were doing might tick someone off, they can be quite disorienting, especially if the artists and/or companies don’t have an attorney on speed dial who can help them to determine the best course of action and the ability to pay said attorney to advise them and defend their interests.

According to a report by Rich Smith for Seattle’s The Stranger, Erin Pike, Courtney Meaker and Gay City Arts in Seattle, or some combination thereof, received a cease and desist late yesterday (Friday), demanding the immediate suspension of performances of Pike and Meaker’s thatswhatshesaid, which had given the first of four scheduled performances at Gay City Arts on Thursday evening. Thatswhatshesaid is a two-act theatre piece, performed solely by Pike, which is constructed out of dialogue and stage directions given to women in the 11 most produced plays in the country in 2014-15, as determined by American Theatre magazine. The works on that list include Vanya and Sonia and Masha and Spike by Christopher Durang and Sondheim and Lapine’s Into The Woods. Earlier, briefer versions of thatswhatshesaid have been performed in Seattle, Portland and Minneapolis.

The cease and desist correspondence came from Samuel French, the licensing house which represents some of the works on the American Theater list and are therefore excerpted in the production; Smith’s report doesn’t say whether Dramatists Play Service or Music Theatre International, which also represent some of the works utilized by Pike and Meaker, have taken any action against thatswhatshesaid. Smith’s report also seems to indicate that French’s letter concerns only the use of material from Bad Jews by Joshua Harmon, even though the newly devised work also contains material from Tribes by Nina Raine and The Whipping Man by Matthew Lopez, which are is also represented by French.

The report in The Stranger quotes a segment of French’s letter and it seems to be fairly standard cease and desist boilerplate, with the appropriate parties’ names plugged in:

Any such program, publicity, production and/or presentation by you and/or permitted by you constitute and shall constitute the intentional infringement of the copyrights, trademarks and or other rights of our author and subject you and any and all other persons and/or firms involved with the publicity, presentation and/or production to the civil and criminal penalties specified under applicable law.

Should you or any of you permit these unlicensed programs and/or performances to take place and/or be performed, whether at a venue leased, owned or operated by you or otherwise, you and all involved personal shall be held fully liable and accountable as infringers and/or contributory infringers as specified under applicable law.

Accordingly, formal demand is hereby made that you immediately cease and desist from any and all such action by the end of business today, Friday, February 5, 2016, and you confirm that you will not conduct, publicize and/or present and/or permit to be conducted, publicized and/or presented any such program and/or performances.

Failure to do so will expose Gay City Arts, and all individuals acting in concert with these parties, to actions for willful copyright and trademark infringement and other legal claims.

Daunting, no? Enough to scare off lots of those accused of infringing, especially those with limited means, without a fight, right?

Now if Pike were simply standing on stage and sequentially reading every bit of dialogue and stage directions involving the female characters from each play, then what’s going on might be perceived as simple appropriation of copyrighted material, though even that’s not remotely a definitive determination. However, even with male roles excised, the sum total of that dialogue and stage directions could amount to seven or eight hours of stage time. Smith’s review of thatswhatshesaid for The Stranger, posted only seven hours before his report about the legal action, didn’t suggest he’d been at a marathon, but rather that Pike and Meaker had selectively chosen pieces of the various works and woven them into a quilt that yielded commentary on both the specific works, as well as the prevailing attitudes towards women being advanced in American theatre today.

So this seems the appropriate time to bring in the concept of “fair use.”

Your eyes may glaze over the moment someone suggests a primer in the fair use provision of U.S. copyright law, but it’s extremely pertinent here. Copyright law is designed to insure that original works remain the property of those who own them, for a defined period of time, so that they can derive revenue from the material without having it simply taken by others for their own benefit. It is why, simplistically, someone cannot simply retype a novel and publish it as their own work, or why plays can’t be performed without appropriate royalties due to the playwright.

But fair use keeps that ownership from being absolute in all cases. Because fair use allows for parody, Mad Magazine or Saturday Night Live or Key and Peele don’t need to pay the authors of creative works they might riff on. Because fair use acknowledges the value of education, teachers don’t need to pay royalties when their students simply read a play aloud in class. Fair use permits quotations from an original work in reviews and critical pieces about that work, and the same holds true for scholarly works. Fair use also considers whether new work that is in some way drawn from or inspired by an earlier work or works is sufficiently transformative of, and distinct from the original(s) as to constitute a sufficiently original work in and of itself.

But here’s the tricky part about fair use: while there are general guidelines as to what is protected under the fair use provisions, there is no absolute determinant that can be applied in all cases. That’s where lawyers and judges come in and that’s what helps to keep the field of intellectual property law perpetually active.

In Smith’s second report, he indicated that Pike had a plan as to how to proceed in the face of French’s cease and desist letter. That should prove fascinating. But it seems clear that if Pike and Meaker wish to mount future productions of thatswhatshesaid, or publish it, or have it licensed so that others may perform it, they’re going to have to challenge French’s assertions that their piece does violate the copyright protections afforded to Bad Jews, and presumably the other 10 works represented in the piece as well.

*   *   *

I haven’t read or seen thatswhatshesaid, but like many people to whom I’m connected on Facebook, I’d really like to. I wonder whether anyone from French has read or seen it, or if they’re just responding to The Stranger’s coverage of it. Smith’s review was zipping around on my timeline yesterday afternoon between theatre practitioners from all over, and I have to admit that the moment I read it, I thought, ‘Wow, this is going to be an interesting copyright test.’

Without having firsthand knowledge of the piece, or a legal degree, I can’t even hazard a guess as to whether thatswhatshesaid is, even just in my opinion (which counts for absolutely nothing legally), seemingly allowable under fair use, or if the situation is somewhat muddier or even a definitive violation. What I do know is that unless Pike and Meaker themselves were to agree that they were knowingly skirting copyright violation, I’d like to see them pursue their rights to the new work, at least so far as getting good legal counsel about their creation.

In this instance, the new work is using verbatim quotes from other copyrighted works, by authors I admire and several of whom I know, rather than just a general outline of a dramatic/comedic premise, but I can’t help but wonder whether this newly coalescing dispute is in some way akin to what befell David Adjmi and his play 3C. That work was a dark parody of the sitcom Three’s Company, which was proscribed from production or publication for three years until a judge determined that it was permitted under fair use.  That said, there may be a corollary here to the disputes over sampling in music, which in many cases have found that the original creators are due income from the subsequent work since their original material was taken directly, even if it was incorporated into something new.

Some might wonder how, given my advocacy for the rights of playwrights to control their work, I can also express support for what Pike and Meaker have reportedly done. My answer is that we’re dealing with artists on both sides of this issue, and if thatswhatshesaid is genuinely transformative, if it is a critical assessment of those original works achieved through theatrical means, if it parodies those original works by mashing up and using their own words against them, then perhaps it should be allowed to have its own life. I doubt, even without having seen it, that thatswhatshesaid will undermine the value of or confuse audiences about the original works excerpted and collaged within it. I appreciate French’s position in defending their clients, but I’d like to see Pike and Meaker have an equally strong defense too.

Update, 12:30 pm February 6, 2015: I’ve stumbled onto the Twitter account of Courtney Meaker and I’d like to selectively quote from her posts regarding how they proceeded with the second performance of thatswhatshesaid. I share them in chronological order, but not every single post:

• The show went on.
• We redacted all the offending text per the cease and desist letter.
• There will be more thoughts and likely a long essay to be written by me, but I want to say that[…]
• […]as a playwright, I would be 100% on board with someone using my work in this way.
• We held a completely subjective lens up to the work of the top ten most produced plays.
• If my work was ever so lucky as to reach that spot, I would welcome someone dissecting it and taking it out of context.
• I would want to know what someone thinks I’m saying about women using my own words.
• I’m not perfect. I’m not a perfect feminist playwright. I’m me. And I would want to know.

Update, Monday February 8, 12 noon: Rich Smith of The Stranger has continued to pursue the story of thatswhatshesaid and the cease and desist letter issued by Samuel French. He interviewed French’s executive director Bruce Lazarus about their action, the play and the possibility of the piece being permissible under fair use.

I told him that in my review I described the work as a parody and a collage that draws from several plays, and asked if he considered the play fair use.

“That’s your interpretation. Because you call it a parody doesn’t make it so,” he said. Then he added, “Fair use is a defense, and if proved it’s perfectly fine and within the law. But it’s a judge’s determination as to whether [That’swhatshesaid] constitutes fair use. Not having seen it, not having read it, I couldn’t tell you if it was fair use or not.”

When asked whether he’ll act on his claim to “go after” Gay City Arts knowing that That’swhatshesaid ran with lines from Bad Jews redacted, Lazarus said it was up to Harmon and all the other authors “whose rights are potentially being infringed” to decide whether they want to pursue legal action.

I posited this story as a David and Goliath situation. Here you have a big publisher coming down on a tiny theater presenting a self-produced play. Did he consider the fact that the artists might not have enough money to retain a lawyer? “For all I know, the author of this play has the wherewithal and the resources to hire an attorney to do this play,” he said, “And our author has the wherewithal to hire an agent to enforce his rights.”

Update, Monday February 8, 11 pm: The Stranger’s Rich Smith continues to report on thatswhatshesaid, with a post from this afternoon citing the receipt of a second cease and desist letter by the show’s creators. It came from Samuel French specifically on behalf of Matthew Lopez in connection with his play The Whipping Man, which was included on American Theatre’s list. However, as Smith notes, The Whipping Man contains no female characters [the text in the original post above has been struck out to reflect that fact]. The only material in thatswhatshesaid pertaining to the play is the sound of performer Erin Pike riffling through the 72 page script.

Update, Thursday February 11, 3:30 pm: In a new report in The Stranger, Dramatists Play Service has now issued a cease and desist letter to thatswhatshesaid on behalf of five of their authors: Other Desert Cities by Jon Robin Baitz, Vanya and Sonia and Masha and Spike by Christopher Durang, Venus in Fur by David Ives, Tribes by Nina Raine, and Outside Mullingar by John Patrick Shanley.

This post will be updated as new information warrants.

Howard Sherman is director of the Arts Integrity Initiative at The New School College of Performing Arts.