Igor Stravinsky, a famous composer and pianist, once said, “A good composer does not imitate, he steals”. Stravinsky’s view, like that of many creatives, is one that aligns with the idea that music – or in this case theatre – is innately collaborative, and is actually furthered rather than hindered when artists build from each other’s work. Earlier in March 2020 the IP Osgoode Speaks Series featured Dr. Luke McDonagh who expanded on these very notions in ‘Copyright & Collaboration in Works of Theatre’.
Dr. McDonagh opened the presentation with an overview of his study. Specifically, he sought to address whether the recognition of authorship of dramatic works under copyright accurately reflects the processes involved in the creation of plays and other theatrical works. The tendency for copyright to award authorship to one person (the playwright), raises questions around whether it accurately reflects the reality of creativity in theatre.
Play writing, like many forms of artistic expression involve a collaborative process, insofar as the material produced in these settings is often the by-product of multiple individuals and perspectives. From an IP perspective, this notion of “relational authorship” raises speculation as to whether theatre fits with the idea of copyright being afforded to specific individuals. Ascribing full copyright protection to the playwright solely for their writing and none for the actors who perform is seemingly a prosaic way to operate. However, Dr. McDonagh notes that this approach is not unique to theatre.
For example, in the music realm, modern approaches towards the creation of a song’s instrumentals require a producer to meticulously layer various sounds together, harmoniously, to produce a finished product. 20 years ago, only nine of the top 100 albums contained sampling, while today, almost a third of the current top 100 use sampling as an artistic tool. Despite the popularity of sampling music in genres like hip-hop, it remains a highly controversial practice within the field of copyright law, largely due to similar concerns around relational authorship.
Consider the case of Clyde Stubblefield, who was one of two drummers for legendary artist James Brown. Today, Clyde is regarded as one of the most sampled artists of all time. Clyde’s unique drumming style became a very popular bassline for hip-hop drum samples in the 90’s from some of Brown’s popular songs like “Funky Drummer” or “Cold Sweat”. For the artists sampling Clyde, they were not interested in Brown’s music as much as they were interested in Clyde’s drum beats, which he later indicated were entirely his own creations. As he recalls, the recording of those songs began with him playing a drum beat and everyone joining in, which was a common practice for soul bands of that era.
Despite Clyde’s spark on the drums, and the assistance the other musicians provided in producing the final product, James Brown owned the copyrights and as such, would be the sole recipient of any benefits received from his music being sampled. This situation is analogous to the current dynamic in theatre, whereby playwrights exclusively receive copyright protection. In the theatre context, Dr. McDonagh highlighted that the work is often in a constant stage of re-definition, as it is not concrete until you get the first performance. These features can be seen in both the music and film world. In 2004, the case of Brighton & Dubbeljoint v Jones demonstrated the court’s traditional approach towards copyright doctrine, as exclusive protection was given to the play’s original writer. Despite this, the more recent 2019 decision in Kogan v Martin has leaned towards a more contextual approach, as writing was not deemed to be the conclusive factor in determining protections.
The commercialization of hip-hop in the 90’s meant increased regulation around sampling and the proliferation of contracts between parties that did not previously exist. Dr. McDonagh points to the fact that within theatre, there remains a lack of contractual relationships between parties, whereas in film and music industries these contracts do exist. This raises questions as to the future of the theatre industry and whether increased regulation would aid or hinder creative expression in this context.
Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at IP Osgoode Innovation Clinic.
 Quoted in Peter Yates, Twentieth Century Music: Its Evolution from the End of the Harmonic Era into the Present Era of Sound (New York: Pantheon Books, 1967) at 41.
 Kembrew McLeod & Peter Dicola, Creative License: The Law and Culture of Digital Sampling, (London: Duke University Press, 2011) at 5.
 Ibid at 91.