The eleven contributors to this fascinating collection illuminate many aspects of commercial theatre and how best to examine it. George Pate analyzes the high-stakes implication of a melodramatic legal battle. Christine Woodworth recounts the difficulties encountered by British actresses near the turn of the twentieth century, while Boone J. Hopkins considers newly found images of Margo Jones along with the commercial appeal they represent.
The volume continues with articles that follow developments with ties to commercial theatre, such as the interplay between Broadway companies and regional theatres, musical productions in communist Poland, and the influence of Korean popular culture on theatre and the unique production arrangements that have resulted. Other essays investigate alternative concepts related to commercial themes with regard to audience interaction and the burgeoning world of geek theatre.
Edited by David S. Thompson, this latest publication by the largest regional theatre organization in the United States collects the most current scholarship on theatre history and theory.
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Broadway and Beyond
Commercial Theatre Considered (Theatre Symposium, Volume 22)
By David S. Thompson, Jane Barnette
The University of Alabama PressCopyright © 2014 The University of Alabama Press
All rights reserved.
Daly, Boucicault, and Commercial Art in Late Nineteenth Century Drama
A helpless young woman lies bound and gagged on the train tracks. A train barrels toward her, smoke spewing, horn blaring, brakes screeching in futility. The mustachioed villain cackles to one side. But then our hero rides in on his white horse, saves the girl, and defeats the bad guy. The day has been won in the name of masculinity, chivalry, morality, and hackney. Iterations of this scenario appear throughout popular culture in the West. It has become the archetypal image of good guys versus bad guys with the damsel in distress at stake. The origin of this story, however, rests in ethically murkier waters, with a complex tangle of vertices pulling toward intellectual property protection, artistic merit, and commercial success standing in place of a dichotomy of Good and Evil. Augustin Daly's melodrama Under the Gaslight is widely considered to be the first instance of the tied-to-the-tracks trope, although the familiar roles are switched, with the damsel in distress being played by a Civil War veteran and the hero being the strong female protagonist. The instant popularity of the plot device quickly spawned an imitation. That imitation in turn led to a key case in the development of intellectual property law pertaining to theatre and performance. The case of Daly v. Palmer, in which Daly successfully sued to get royalties from the New York production of Dion Boucicault's After Dark, reflects the complex relationship between commercialism and artistic integrity at the end of the nineteenth century. The arguments supporting Daly's ownership of the railroad scene suggest that commercialism and artistry in this moment of theatre history are synonymous and that both primarily consist of an author's ability to create a specific series of emotional excitements for an audience. Daly's conflict with Boucicault ultimately suggests that the cultural and legal conventions under which such sequences of emotional excitement count as both art and property reflect an understanding of ownership rooted in social, moral, and aesthetic—rather than monetary—value.
Some of the cases and arguments discussed in this essay—de facto patents on plot devices and copyright protection denied on the grounds of immorality—may seem bizarre to anyone even loosely acquainted with contemporary intellectual property law. The intellectual property regime under which Daly's work was protected differs from our current intellectual property regime in a number of ways, and understanding those differences is key to understanding the assumptions motivating Daly's arguments and the relationship between artistry, ownership, and commerce that those arguments reflect. Oren Bracha explains that, for most of nineteenth century, the intellectual property regime in the United States understood copyright as a limited right to the specific economic activity of printing particular texts. In other words, copyright literally functioned as just what its name suggests, a right to copy. This meant that the owner of a copyright did not have the right to control or receive compensation from any uses of the text other than copying. Unprotected uses of the text included everything from translations to performances. Oliver Gerland points out that "until , a copyright owner who had printed and sold copies of a play could not prevent others from staging it.... By contrast, plays that had been performed but not printed and sold ... were fully protected under common law." Copying a performance of an unprinted play from memory, then, would be impermissible under common law. Performing a play from a printed manuscript, though, was considered a perfectly acceptable use of that manuscript. Any owner of a copy of a playscript could claim the right to such use without consulting or compensating the author. The publication of a play effectively transformed it from a performance object to a text object, and it could not legally be both at the same time. Copyright law for most of the nineteenth century, then, maintained a deep ontological distinction between the written text and the performed play, a distinction that would become fuzzier as the popular conception of copyright law moved away from a right to print and toward the market value-based force of ownership and control of today. One of the major moments in copyright's change from a protected, exclusive right-to-print to a model of general control and ownership was the introduction of a doctrine of fair use in the late nineteenth century. As Bracha argues, the popular understanding of fair use as a possible emancipatory force against total ownership and control obscures fair use's nature as an expansion of ownership and control: "Ironically, the fair use doctrine is commonly celebrated today as one of the major safeguards against overexpansion of copyright protection. At the time it was introduced ..., however, it was a vehicle for a radical enlargement of the scope of copyright.... Formerly, infringement was limited to near- verbatim reproduction and all other subsequent uses were considered legitimate. In the new fair use environment, all subsequent uses became presumptively infringing unless found to be fair use." In other words, almost all non-printing use was fair use before the introduction of a doctrine that specifically designated which transformative uses were protected. Finally, protectability was not yet, at this point, based solely on market value, but also depended to some extent on a work's adherence to dominant conventions and social norms. Each of the above aspects of the mid-to-late nineteenth-century American intellectual property regime comes into play in the cases discussed over the course of this essay.
Under the Gaslight was a huge moment for Daly, serving as the catalyst for his becoming one of the premier playwrights and managers of his day. First produced in 1867, Gaslight followed on the success of Daly's Griffith Gaunt staged the year before. It had long runs in cities throughout the country, and the profits from its success allowed Daly to open his own theatre on Fifth Avenue in 1869. In his defensive and laudatory biography of the playwright, Augustin's brother Joseph Francis Daly describes Gaslight as the epitome of success in melodrama, offering its broader cultural impact as evidence of its more than just financial success: "Not only was 'Under the Gaslight' played in every city, but for many months the vaudevillists, 'sketch artists,' variety performers, and minstrel troupes were inventing burlesque 'acts' of the railroad scene. These travesties were so many evidences of the wide and strong impression that the new play had made. From the day of its production in 1867 to the present time it ... has been played perhaps oftener than any other melodrama in the English language." Joseph points to the early proliferation of iterations of and references to the famous train scene as evidence of the play's deep cultural impact. The train effect was not just lucrative; according to Joseph, it deeply tapped into something in the culture, something beyond spectacle. The play—and eventually the playwright—became synonymous with its sensational train effect.
Augustin Daly, then, had great personal interest in the image of the train bearing down on the hero. It was his effect, perhaps even the seed, for Under the Gaslight. When Dion Boucicault copied the effect in After Dark, the stakes for Daly were high and complex. After Dark, which uses a train effect very similar to that of Under the Gaslight, first appeared in London in August 1868. Due to the weakness of international copyright protection at the time, the London production was outside Daly's reach. When producers Jarrett and Palmer attempted to put the show up in New York three months later, having purchased the rights from Boucicault, Daly sought an injunction against the production. Boucicault initially defended his version, not by claiming that his was original but by claiming that both were equally derivative, saying that "the railway effect is not derived from Mr. Daly's 'Under the Gaslight,' but is a London stage machinists' invention of as early a date as 1843." This defense, though ultimately unsuccessful, raises some important questions about the stakes of the case. For one, it suggests that Boucicault saw the case concerning the appropriation of stagecraft, but Daly saw it as an appropriation of plot. Also, where Daly argues for total ownership of his theatrical device, Boucicault suggests that they both make use of a preexisting trope to which neither of them can claim ownership. Daly's arguments require a more author-centric view of theatrical production, in which the most important distinguishing feature of a theatrical piece is not its actual production and performance, in which the details and nuances of several artists coalesce. Instead, the defining element of theatre, in Daly's argument, is the originality of the author's invention. In fact, the full title of Daly's play in one edition is Under the Gaslight: A Totally Original and Picturesque Drama of Life and Love in These Times. The fact that this edition adds the phrase "totally original" to the subtitle in 1895, well after Daly's injunction had been won, suggests a kind of retroactive assertiveness about Daly's suit. Daly's play was totally original; Boucicault's was not.
Judge Blatchford, who presided over the case of Daly v. Palmer, ultimately agreed with Daly. In his decision, which I quote here at length, he states:
Boucicault has, indeed, adapted the plaintiff's series of events to the story of his play, and in doing so has evinced skill and art; but the same use is made in both plays of the same series of events, to excite by representation the same emotions in the same sequence. There is no new use, in the sense of the law, in B's play of what is found in the plaintiff's play attractive as a representation on the stage.... The original subject of invention, that which required genius to construct it and set it in order, remains the same in adaptation. A mere mechanic in dramatic composition can make such adaptation, and it is a piracy if the appropriated series of events when represented on stage, although performed by new and different characters using different language, is recognized by the spectator ... as conveying substantially the same impression to and exciting the same emotion in the mind in the same sequence or order. Tested by these principles, the 'railroad scene' in B's play is undoubtedly, when acted, performed, or represented on a stage or in a public place, an invasion or infringement of the copyright of the plaintiff in the 'railroad scene' in his play. The substantial identity between the two scenes would naturally lead to the conclusion that the later one had been adapted from the earlier one.
This decision relies on a number of assumptions, legal and otherwise, not only about the concept of originality but about the function of theatre itself. First, what counts as the subject of contention is not the text itself or even the performance of similar actions but the order of the excitement of emotions. In this way, Judge Blatchford reveals an understanding of the writer's job and objects of production rooted in an Aristotelian notion of telos. What counts for the writer is not the text itself but the experience of the audience encountering the play. The object whose authorship and ownership are in question, in this case, is a series of emotional stimuli offered in a particular order. Daly is the author not of a text but of the audience's experience, an experience that both makes his work artistically unique and also renders it "attractive as a representation on stage." The play only counts as property, as something that can be protected, insofar as it creates such a series of emotional reactions. Finally, Blatchford's decision effectively granted Daly a patent on the plot device of the train bearing down on the hero. The court did not protect Daly's design of the train effect, but his use of the very concept of the train scene. Even though Boucicault copied no dialogue or stage directions directly from Daly, Blatchford argued that Boucicault had engaged in "piracy" by making use of the same events, even with different characters and in a different scenario, to excite the same emotions in the same order. This decision suggests that the court, at least, defined a dramatic work by the series of emotions it excites. Following this decision, Daly could seek action against anyone who used the train scene, no matter how different their expression of the idea from Daly's. In reaffirming Blatchford's opinion during a later case, an appeals court maintained that in "plays of this class the series of events is the only composition of any importance" and that the particular dialogue used to instantiate the scene was irrelevant to its identity as a dramatic composition. Copyright law explicitly protects only the expression of an idea and not the idea itself, and the fact that the sequence of events and the emotions they excited counted as the expression rather than the text itself shows how deeply artistic practice and ownership were intertwined under the umbrella of authoring audience experiences.
Daly claimed that the railroad scene was the genesis of Under the Gaslight rather than a fortuitous happenstance of the creative process. He knew he had a gimmick for which he could take sole credit and ownership. Even the writing of the scene itself exposes his understanding of both the incitement of emotions and the effect of spectacle. Laura, the heroine, is locked in the station house looking on "horror-struck"—the construction of a sequence of emotional excitements being specified in the text—as Snorkey lies helpless, tied up on the tracks by the villain, Byke.
SNORKEY: Is there nothing in there?—no hammer?—no crowbar?
LAURA: Nothing! (Faint steam whistle heard in the distance) O, heavens! The train! (Paralysed for an instant.) The axe!!!
SNORKEY: Cut the woodwork! Don't mind the lock—cut round it! How my neck tingles! (A blow is heard.) Courage! (Another.) Courage! (The steam whistle heard again—nearer, and rumble of train on track. Another blow.) That's a true woman! Courage! (Noise of locomotive heard—with whistle. A last blow; the door swings open, mutilated—the lock hanging—and Laura appears, axe in hand.)
SNORKEY: Here—quick! (She runs and unfastens him. The locomotive lights glare on scene.) Victory! Saved! Hooray! (Laura leans exhausted against switch.) And these are the women who ain't to have a vote! (As Laura takes his head from the track, the train of cars rushes past with roar and whistle from L. to R.H.)
Again, this passage reflects a number of assumptions underlying the construction of ownership at the time. First, as I mentioned, it creates a clear sequence of emotional representations and excitements. Laura progresses from horror-stricken to paralyzed and then to bravery. Snorkey's repeated chant of "Courage!" serves not only as an encouragement to Laura but also as a kind of invocation of emotion for the audience. The exclamation points throughout indicate the excited state of the characters. Just to make sure Laura's level of excitement at finding the axe is clear, Daly provides three exclamation points at the end of her discovery. Daly understands that, in creating a clear sequence of specific emotional reactions, he made something that he could claim as his own totally original property, in both commercial and artistic terms. In fact, he defines artistry in such a way that it must be commercial to count as art, at least within the legal conventions of his time.
Excerpted from Broadway and Beyond by David S. Thompson, Jane Barnette. Copyright © 2014 The University of Alabama Press. Excerpted by permission of The University of Alabama Press.
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