Winning a copyright battle can mean losing a public relations war.
Broadway producer Scott Rudin endured a wave of criticism after sending letters to at least eight community theater groups that had planned to perform the play “To Kill a Mockingbird” with an older script than the one used in the Broadway production. That prompted a #BoycottRudinPlays hashtag on Twitter with comments such as “This is just greed.” Rudin eventually backtracked, and allowed the theaters to stage the play using his production’s script.
The episode shows how heavy-handed copyright enforcement tactics can backfire in the age of social media, intellectual property attorneys said. Trademark and copyright owners increasingly must weigh public perception when considering how to enforce their rights. A lighter touch can put an alleged infringer on notice while avoiding bad publicity, and even produce some good publicity through humor and wit, the attorneys said.
“Clever companies and brand owners have come to realize it’s a way to come across as the good guy while still getting their messages out about their property,” Richard Rochford, a trademark attorney at Haynes and Boone LLP, said. He said Rudin and his team are “trying to be graceful now, but they’ve already done P.R. damage. Had they done this at the outset, it would be pretty good.”
Rudin secured rights to produce a new version of “Mockingbird” in 2015. It premiered on Broadway in December, after Rudin settled a lawsuit from author Harper Lee’s estate that argued the new script written by Aaron Sorkin strayed too far from the novel.
Local theaters have licensed playwright Christopher Sergel’s adaptation of the book for decades. But Sergel’s company’s 1969 agreement with Lee barred production within 25 miles of a city with more than 150,000 people as of 1960 during the run of any “first-class” production. Rudin claimed Dramatic Publishing Co, now run by Sergel’s grandson, licensed the old script to the theaters without the right to do so.
The theater community blasted Rudin over his attorney’s threats to seek $150,000 in statutory damages if the non-profit theaters performed the play, and called for a boycott of the Broadway production. Some groups accepted Rudin’s offer to use Sorkin’s script; others were too far along in preparation and had to cancel performances.
Mugford Street Players in Marblehead, Massachusetts, rescheduled its opening four weeks later and outside the 25-mile radius from Boston after having to cancel on about a week’s notice. Creative director John Fogle acknowledged Dramatic Publishing licensed rights it didn’t have, but said he didn’t see why Rudin needed to shut down misled groups.
“It wouldn’t have damaged their property one iota to have us perform this show in Marblehead,” Fogle said.
Dramatic Publishing president Christopher Sergel III called Rudin’s and the Lee’s Estate’s interpretations of their contract “erroneous.” He said all licenses his company issued are valid because “any special clearances required were received directly from the Estate’s representative.”
Rudin didn’t immediately respond to a comment request. Ralph Sevush, general counsel for the Dramatist Guild of America, which represents playwrights including Sorkin, said the criticism of Rudin was unfair.
“Theaters that licensed the play were treated poorly. But not necessarily by the Broadway producer, but by the agency that licensed them without permission,” said Suvish.
‘Pit of Misery’
Humor and grace in a cease-and-desist letter can avoid any hurt feelings, copyright lawyers say. As an example, they cited a letter that Netflix Inc. sent to Chicago man who set up a “pop-up bar” with furnishings and drinks based on its hit science-fiction series “Stranger Things.”
The 2017 letter referred the show’s “Upside Down” alternate dimension and 1980s pre-teen vernacular in asking the bar not to extend its use of copyrighted elements beyond the bar’s planned six-week run, and not to do it again without permission. Netflix stressed its affection for the show’s fans, but said “the demogorgon is not always as forgiving,” referring to the demon prince in “Dungeons and Dragons” after which characters in the show named its monster.
“So please don’t make us call your mom,” Netflix’s letter concluded.
AB InBev Inc., the maker of Bud Light, also used a light touch in 2017 in its order to a Minneapolis craft brewery selling “Dilly Dilly” IPA beer, named for a catchphrase from a Bud Light ad campaign. It sent a costumed medieval town crier to read the letter, written on a scroll, from the ads’ fictional king, asking the brewery to make it a “limited edition, one-time only run” beverage and threatened “a private tour of the Pit of Misery” if it didn’t comply. The crier also gave the brewery owners two Super Bowl tickets.
The stunt garnered positive press for AB InBev and free national publicity for the Minnesota brewery.
‘Prudence and Restraint’
The AB InBev and Netflix letters are examples of how cease-and-desist orders “have been toned down in severity” in the last couple years, said Aaron Swerdlow, an entertainment attorney at Weinberg Gosner LLP. Attorneys at large corporations are working more closely with the company’s outside ad agencies hoping to head off public relations headaches, he said.
Some corporations still use a “scorched earth” approach when enforcing a copyright, especially in the entertainment industry, copyright attorney Andrew Bridges of Fenwick West LLP said. But that can be counterproductive both in court and in the public eye, he said.
Copyright owners who use a light touch do so, in part, because they’re enforcing rights under a copyright law that provides for “outrageous statutory damages” and extensive copyright terms, Bridges said.
“Prudent copyright owners are recognizing ‘state of play’ is extremely controversial, and will exercise prudence and restraint,” he said. Harper Lee’s estate could own the copyright on her book until 2086—70 years after her death and a 126-year term in all—under existing law.
Some attorneys said Rudin may yet end up with a net gain. Swerdlow said initial blowback may have given free publicity to Rudin’s “Mockingbird” production. He said Rudin’s team had turned the initial mistake into good publicity by offering a rare chance for the community theaters to use a Broadway script during its run, and can add other goodwill efforts if the boycott threat escalates.
“They’ve turned this into good P.R.,” Swerdlow said. “Nobody is going to not see the play on Broadway because they saw it in Louisville.”