The Great Change: Turning Cathy into a Lawyer

Salon Magazine ran an AP story about a high school performance of "The Adventures of Huckleberry Finn," a play based on the Mark Twain novel. The high school chose to cast the play with a white student as Jim and a black one as Huck Finn. All was well until C-Span wanted to broadcast the production and the copyright holder in the play, R&H Theatricals (the Rodgers & Hammerstein organization), objected.

Spokesman Bert Fink was quoted as saying, "[W]hen you're dealing with a theatrical work and race or ethnicity is a key factor, many authors or playwrights feel strongly that ethnicity has to be reflected in the actors who portray the characters ... In the books, Jim is a runaway slave. He is clearly in the novel an African-American man. And Huck is a free white man -- that is central to the story. To ignore that component or to comment on it by switching is not faithful to the story."

It's all well and good that he feels that way, though others may disagree with him. But what the parties, and the article, seem to have presumed is that R&H Theatricals could withhold permission for the broadcast based on that objection.

I question that assumption. It does not seem that it is within R&H Theatricals' rights as a copyright holder to grant or withhold permission for the broadcast based on the casting.

Their copyright is in the play, and the play alone. The play itself is a derivative work based on the original novel, which is now in the public domain. So the extent of the copyright in the play is only what is new to it, things like the script itself and songs. The essential characters, plot, and possibly much of the dialog belongs to the original work and R&H can't claim any rights to control how others choose to use them. R&H can only control usage of the parts it added.

When R&H Theatricals withholds permission to use the play because it disagrees with the casting, it is trying to exert copyright control over parts which it doesn't own. As Bert Fink himself acknowledged, the objection to the casting stems from how the characters were originally written. But his organization doesn't own the copyright in how those characters were written. It is therefore no misuse of its copyrights to cast the play that way.

R&H Theatricals could still probably withhold permission for broadcast of the parts it did create, probably fairly capriciously, but I don't think that's what's going on here. The objection is to how the original underlying story was interpreted, and R&H Theatricals seems to think it can control that. It can't.