UPDATE: Erin Pike's THAT'SWHATSHESAID Receives New Cease and Desist Order From Dramatists Play Service

As reported by BroadwayWorld, Erin Pike's performance of Courtney Meaker's solo piece, THAT'SWHATSHESAID, received a cease and desist order from the publishing company Samuel French an hour before last Friday's performance at Seattle's Gay City's Calamus Auditorium..

The order came after a review was posted by The Stranger's Rick Smith, describing the play as a collage piece consisting of dialogue from the female characters that appear in American Theater magazine's list of the 10 most-frequently-produced American plays during the 2014-2015 season.

One of the plays on that list is Joshua Harmon's BAD JEWS and, as reported by Smith, the order came about because Harmon's agent sent an email to Samuel French with a link to his review, which particularly described how material from BAD JEWS was used in a piece that is critical of the way women are represented in American theatre.

The play went on Friday night, with a voice mail message from Samuel French Executive Director Bruce Lazarus confirming the order incorporated into the performance, and all references to BAD JEWS removed, with an off-stage voice yelling "redacted" when those references would ordinarily occurs.

Although the Gay City run has concluded, Smith reports that on Tuesday the creators of THAT'SWHATSHESAID received an additional cease and desist order; this time from Peter Hagan, president of Dramatist Play Service Inc. The order was in regards to five referenced plays that the company represents: Jon Robin Baitz's OTHER DESERT CITIES, Christopher Durang's VANYA AND SONIA AND MASHA AND SPIKE, David Ives' VENUS IN FUR, Nina Raine's TRIBES and John Patrick Shanley's OUTSIDE MULLINGAR.

The order states, in part:

"The text in the plays cited above was written by, and is owned by, the aforementioned playwrights. No permission was sought for the use of the work of these writers-in or out of context-in THAT'SWHATHESAID [sic]. As is stated in the introduction to this piece: 'Everything that is said and every action spoken over voiceover ... is taken directly' from the plays. Regardless of whether Erin Pike and Courtney Meaker 'claim no ownership of the material' (as they also state in the introduction), the fact remains that the material was presented without the permission of any of the authors who do own that material. And that, as far as I am concerned, is theft. To be quite clear, what the 'conceiver' and 'writer' have compiled here is direct use of material not created by them, and they have done so without permission from the authors or from the representatives of those authors."

In past cases, courts have addressed the issue of fair use, noting cases where a certain amount of copyrighted material can be used as parody or commentary. This allows, for instance, a show like FORBIDDEN BROADWAY to exist as a revue of parody songs.

"Whenever material from a play we publish and represent is used without permission, regardless of the context of the material used, we will always say, 'No one asked for permission to do this, you can't do it,'" Hagan noted to Smith. "When permission is requested, we will always take that request to the author or the author's representatives and turn it over to them. In this case, no permission was asked for any of the material that were used."

"Fair use can be a fairly gray area," he continued. "What one person calls fair use might not be considered fair use to another person, particularly to the person whose material is being used. What we would do in this particular situation is turn it back to the author. Once that has happened, it's the author's decision to take it to litigation."

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