Just jumped in on the last half or two-thirds of the keynote at the Theater Communication Group conference in LA: The Community Formerly Known as the Audience, given by Douglas McLennan, Editor of artsjournal.com/diacritical.

It was some pretty encouraging stuff to hear, see. I would say provocative, and maybe perhaps to some people it is just that, but I have been hearing some of the ideas far too much lately and not just from conferences. That is, I just attended the Dramatist Guild conference at George Mason, and some of the same persons were there as are now at TCG. While I heard some of these ideas at DG, many of the “provocative” notions that I am hearing from McLennan I have heard voiced from peer playwrights and, having recently gotten a certificate in nonprofit management at Case, ideas that I have heard expressed in many of the nonprofit classes (read, “marketing” and “fundraising”).

One of the more interesting ideas I came in on was when McLennan was speaking about a “Ladder of incentive if you interact with us.” Us being the theater. That is, the traditional nonprofit model is that there is a ladder of incentives if you donate to the organization—which can culminate in board membership or some “truly meaningful” (organizationally speaking) relationship with the theater. But in this case, McLennan was talking about finding ways to incentivize the patrons who most participate.

The point McLennan makes is: who do you value more, the person who gives you $1,000; or the person who buys $1,000 worth of tickets, sees all your shows, and brings their friends? If you know anything about fundraising, you damn well better value the latter person more than the former (unless they’re the same person).

McLennan comments, what if the Seattle Mariners call you up and say, “you bought a ticket on such-and-such a date, and your ticket only pays for 40% of our operating budget, would you like to donate to our organization?” McLennan notes that most people would laugh. So, he posits, why is it okay for theaters and other arts organizations to do the same?

Again, I just got a certificate of nonprofit management from Case, so I understand that nonprofit organizations are charitable organizations, that they exist to provide services that are of community benefit or toward a community purpose, but may not be services that are supported at the levels necessary by each community member/individual. For instance, clean air. Everyone values clean air; i.e., no one wants to breathe soot and smog and crap and die young. But who wants to pay for it? You? Your neighbor? The guy/gal down the block? Trying to get individuals to pay for clean air would be nearly impossible; but, get a nonprofit to advocate on behalf of healthy society, to monitor the government, EPA, etc., can achieve the goal of clean air. In this way, nonprofits are also an indirect way for the federal government to incentivize certain positive behaviors. This is one way to view arts organizations. Important, yes. Does everyone want to pay for them? Not really. Where am I going with this? To McLennan’s point. Why are there so many goddam nonprofit theaters? Why can’t theaters make a profit? Why is Broadway the only way? Why can’t we engage audiences in such a way as to bring them in and demonstrate the power of theater? Get them to participate with us? Why is “let’s pretend” encouraged when we’re children, but killed in us as adults? How can theaters tap into the new trends of engagement in our society, in the form of online participation? Perhaps a more brutal way of putting it: do we really so de-value ourselves that we believe that people won’t pay for what we offer?

McLennan put up a chart demonstrating his thinking on how arts organizations work: a hierarchy or pyramid where the institution is up top, artists are down a bit to the left, and the community is farther down to the right. That is, the theater as an organization sits as an arbiter over both the artists and the community. McLennan thinks, instead the model should be one of service on the part of the organization: artists <--> institution <--> community. The institutions connects both artist and community and works on behalf of both. It does not work as a filter or a parental figure, a regulator.

McLennan asserts that the most potent currency today is visibility. Your or your organization’s ability to get out in front of the community. The key, of course, is how you achieve this; how do you find a way to get in front of your audience and those who you would like to be your audience. McLennan asserts that not only do you have to find a way to engage your audience once they leave your building, but get them to engage each other about your organization. As McLennan pointed out, 78% of people trust peer recommendations of a product, whereas 14% trust advertising.

McLennan showed a television ad for the Australian chamber orchestra, the focus or meaning of which is that the purpose of the orchestra was to provide the audience with a great experience — hair blowing, knee grabbing, eye opening – that is, the “experience of the music”. And, further, that the “experience is not complete unless the audience has the ability to share it.”

Someone tweets in a question such as, ‘then why aren’t these people attending talkbacks’? – to which McLennan notes that the word itself is problematic. And if you think about it, he’s right. What does a parent say to their teen? “Don’t you talk back to me.” A “talk back” is not a conversation; this is an inherent problem in the nature of the dialog—or lack thereof. McLennan posits that “institutions have control of the relationship and they want to own it…that they are afraid to release that control.” McLennan thinks that theaters want a “perfect” product, and to get that product they have become too controlling. He posits that a better option is to give up control to gain influence: that it is “more powerful to be in the center of a community having a conversation; than being up on a stage preaching.”

McLennan recommended TED — Chris Anderson — crowd accelerated innovation and mentioned Clay Shirky — algorithmic authority; reputational capital; community capital.

The key, for McLennan, is to “incentivize your audience because they’re getting something out of it and you’re getting something out of it.” That there needs to be engagement and sharing and involvement. As examples, McLennan mentioned Netflix, which held a programming competition; Dragon Naturally Speaking, which enhances its product through its users , and Doritos, which found its best advertising by getting its eaters to create the advertisements during the SuperBowl.

Websites: ushahidi, indianapolis museum of art website, art babble. McLennan stresses the need for organizations to “shape your aesthetic.” That, for instance, your website needs to be not a brochure but split into two important goals: the first is the essential 411: ticketing, performances, info; and then there is the second: what McLennan calls “the daily you”: dynamic community, visibility, artists, institution, community, promote your artist who are out working in the community.

For instance, I have tried to get convergence to use its blog to share the elements that go into a production: director decisions, actor choices, character development, lighting and design discussions, also more dramaturgic stuff about a play. Additionally, for a while Lucy Bredeson-Smith was running a calendar on which company members could share what they’re up to in the community. McLennan asserts that this is a great idea. This is a great way to engage your audiences, not just for the organization, but to expand the reach of the organization into the community by demonstrating the reach and participation of your company in the community.

Other comments: that we are experiencing a “revolution in communication with our audiences in the arts world.” How are we going to interact with them? Our conversation right now is asynchronous, rather than two-sided, which has implications for the arts.

Escalation of expectation; paradox of choice; Barry Schwartz; the secret to happiness is low expectations

You can tweet or find tweets on TCG at #tcg2011; and you can hit live streams of the conference at http://www.livestream.com/tcgconference. There was a great moment where someone tweeted McLennan that his shoe was untied; he hadn’t noticed until he looked at his iPhone. Classic.

Attention Economy
Intention Economy
Share Economy

U.S. Happiness Index: Gross National Happiness

Real People and Musical Scores

Real People

Using real people in your fiction or playwriting can throw you into a truly tricky environment.  Generally, if the real person you are using as a character is no longer alive, you’re off the hook.  However, this doesn’t mean that you still can’t be sued (of course). One of the stickier points with regard to using a real person, living or deceased, has to do with what are called “publicity rights” or the Right of Publicity. These rights concern the property right that any person exercises over his/her public image.  As a rule, it seems, the intent of using a public figure’s image or likeness has to be purely for commercial purposes in order for a Right of Publicity suit to work. This is to say, that using a real person in a play or fiction is an artistic use of a person and can be held to be an act of speech, which is protected by the First Amendment–which trumps the Right of Publicity. However, if you’re writing copy for a radio advertisement that uses “Heeeeerrre’s Johnny!” as one of the lines, you likely have used the late Johnny Carson’s Right of Publicity, and, as it is a property right, lives beyond his death and his family/estate can sue you for the use of it.

The Right of Publicity is a property right in many states, and the enforcement is left to the statutory definitions passed in the legislature.  The Right of Publicity is not a federal statute, nor is there any such thing as a privacy right or a right of privacy to which to point (legal fiction).  See Griswold v. Connecticut; and Roe v. Wade.

Beyond the question of the Right of Publicity is the question of defamation. There are several factors that must be considered when determining if there is defamation:

• Statement must be untrue
• published to 3 parties (publication)
• must related to a living person (identification)
• lower the reputation of the person (damages)
• knowledge of untruthfulness (malice)

Note that defamation can also apply to a corporation for all of you activist, anti-corporation playwrights out there. 

There is also a thing called defamation per se (false statements that are immediately considered harmful)–saying that an accountant is a thief; saying that a love rival has an STD; suggesting that someone engages in criminal activity; etc.

For clarification (and the record) libel and slander are forms of defamation (libel is published; slander is spoken).

In the talk given by Sevush and Faux, Faux stated adamantly that “dead is good”; that there is no libel or invasion of privacy for deceased people.  Again, you would have to consult the intent and purpose of the work to determine if Right of Publicity concerns rise to the surface.

With regard to well-known or public figures, the so-called “public figure doctrine” applies (from which the phrase “absence of malice” originates). This doctrine states that “prominent public persons must prove actual malice on the part of the news media in order to prevail in a libel lawsuit. Actual malice is the knowledge of falsity or reckless disregard of whether a statement is true or false.” citation So, you can feel  free to use a public figure in your play, but you had better be certain that your intention is not malicious and that your assertions are absolutely true or are likely true given the inference of certain verifiable facts.  That being said, Sevush pointed to a growing trend amongst high-paid lawyers to engage in what is called “venue shopping” for suits.  For instance, the United Kingdom as a far lower threshold for proving defamation than does the United States, so lawyers might sue you in the UK, get the ruling they want, and then seek to have the ruling imposed in the United States. From what Sevush and Faux stated there are efforts underway in the US to stop this sort of activity from occurring; as it undermines US law.

According to Faux and Sevush, these factors regarding Defamation and Right of Publicity make themselves pertinent to you whenever you license a play to a producer.  That is, you often must sign a statement to the effect that you “warrant and represent” that you own the rights to whatever it is you’re publishing or licensing for performance. The contract might also make you “warrant and represent” that there is nothing defamatory in your work.  Sevush cautioned that playwrights should not make “over-broad declarations” in any contract that they sign–nor should you be forced to–for instance, that your play is not obscene.  Sevush noted that obscenity is decided locally and producer has to decide what he/she/they want to produce and where to produce it–NOT THE PLAYWRIGHT.

Again, the discussion of the Rights of Publicity came up, with a few relevant past cases being highlighted — celebrity (pecuniary, name/likeness for commercial purpose)

• vannah white/
• johnny carson and the portable toilet
• tony twist (doe v tci cablevision)

Often the contract that you sign with a producer can be accompanied by E&O Insurance, short for errors and omissions.  Faux and Sevush encouraged that you should ensure that you are included on this insurance policy if a producer gets it.

Found Scores

Should you use music in your play?  If you are, chances point to the fact that you should get permission to do so.

There are several places that you can go to license music:

• ASCAP
• SESAC
• Harry Fox
• BMI
• Warner/Chappell

When it comes to licensing there are small rights and there are grand rights.  Here is a link to a website that outlines some of the rights that pertain to music and performance. According to the website I link to above, small rights are called “nondramatic performance rights;” and grand rights are called “dramatic performance rights”.  Unfortunately, that sounds clearer than it is.  For instance, simply using the song in a play is not in-and-of-itself the “dramatization” of the song, and so may only require “small rights”–as a song is not inherently dramatic.  If, however, you are “dramatizing” the song, you will need to get “grand rights”.  So, if for some reason you decided to make a play out of the song “Me and Bobby McGee” you would have to get “grand rights.”  Grand rights are usually held by the writer of the song.

Faux and Sevush pointed to ASCAP, BMI, and SESAC for small rights.  Faux and Sevush also noted that grand rights can pertain to the whole of a work — but might also qualify if you are using music to advance the plot or character development in your play. Regardless, they both note that you should assume that you should have to get permission.

Grand rights are what playwrights own with regard to their script (use of songs in a narrative or dramatic way).

Sevush and Faux also discussed parody (fair use, valuable form of comment and criticism) on the subject that is being discussed. They pointed to the use of Roy Orbison’s song “Pretty Woman” by 2 Live Crew.

Parody/Satire Distinction

Parody is directly making fun of one thing, but Satire is using one thing to comment on or make fun of something else (Dr Seuss / OJ Case)

Licensing Music for Your Play

Music should be licensed by the producer.  Sevush was careful to point out that if you, as a playwright, are indicating the use of music in your play that you should note the following distinction:

• Use the words, "and then a song like comes on the radio…"  producer pays
• Use the words, "and then Born to Run by Bruce…" comes on the radio playwright pays

One question that I had, which I didn’t get to ask, is what happens when you contact one of these companies on multiple occasions and get no response?  For my part, in my most recent play Patterns, I went right ahead and used the music.  I figured, if some music publisher made a stink about it, I had the multiple unanswered emails to demonstrate that I had made an effort.