'Unauthorized': Just An Eye-Catching Word or A Legal Necessity?

Alex Timbers and Kyle Jarrow's A VERY MERRY UNAUTHORIZED CHILDREN'S SCIENTOLOGY PAGEANT, a musical parody featuring young actors using the words of L. Ron Hubbard to tell the story of the founding of the Church of Scientology, was awarded an Obie in 2004, but the production might have been shut down before it started if not for the addition of one word.

After receiving a letter from the Church of Scientology suggesting legal trouble, the creators inserted the word "unauthorized" into the title, which was previously "A Very Merry Children's Scientology Pageant."

The difference between parody and copyright infringement was spelled out by the United States Supreme Court in a 1994 case involving the hip-hop group 2 Live Crew and their 1989 recording that parodiEd Roy Orbison's 1964 hit, "Oh, Pretty Woman." Orbison's publisher Acuff-Rose, claimed copyright infringement, but the court ruled commercial parody as fair use.

However, a wealthy church (or publishing company, or movie studio) might easily shut down a modestly-budgeted theatre production with expensive litigation that would determine whether or not the show can prove fair use.

So creators of stage parodies have been careful to make their intentions known in the titles and taglines of their shows, both for legal protection, and as a marketing tool.

Jon and Al Kaplan's SILENCE!, THE MUSICAL, was billed Off-Broadway as "The unauthorized parody of 'The Silence of The Lambs.'" Ticketholders for Daniel Clarkson and Jefferson Turner's POTTED POTTER knew in advance they were attending "the unauthorized Harry experience."

"Unauthorized" was also a key world when Bob and Toby McSmith's SHOWGIRLS! THE MUSICAL! ran at Theatre 80, though its twin feature, BAYSIDE! THE MUSICAL!, also penned by the McSmiths, was billed as "The 'Saved By The Bell' Parody Musical."

Last year around this time, New York's Peoples Improve Theater (affectionately known as The PIT), launched a musical series titled Unauthorized!, using audience votes to choose popular movies to be spoofed in fully mounted musicals written and staged in about a month. Titles have included THE HUNGRY HUNGRY GAMES, THAT 80'S TIME TRAVEL MOVIE, STEEL PETUNIAS, GHOSTBLASTERS and BAD DREAM ON ELM AVENUE.

Out in Los Angeles, Rockwell Table & Stage has been serving a steady diet of spoofs like CRUEL INTENTIONS: THE COMPLETELY UNAUTHORIZED MUSICAL PARODY, THE UNAUTHORIZED MUSICAL PARODY OF The Devil WEARS PRADA, THE UNAUTHORIZED MUSICAL PARODY OF SCREAM and their new summer attractions, THE UNAUTHORIZED MUSICAL PARODY OF THE BIG LEBOWSKI and THE UNAUTHORIZED MUSICAL PARODY OF TROOP Beverly Hills.

But does calling your show unauthorized or billing it as a parody automatically shield a spoofer from litigation?

"The use of the word 'unauthorized' may be very helpful in defending against a claim of trademark infringement or a claim that the people will believe that the parody has been authorized or approved by the owners of rights in the original material," says attorney Edward H. Rosenthal of the law firm Frankfurt Kurnit Klein & Selz PC. "This is because such claims require a showing of a likelihood of confusion as to an association with the original material and the word 'unauthorized' can make clear that the material does not have anything to do with the original. The use of the term is less helpful with respect to copyright claims, which require that the uses be substantially similar and where confusion is not a part of the analysis. Nonetheless, it may be useful to use the word along with a word like 'parody' because it makes the intent of the project clear to audience as well as to a court if a lawsuit is filed."

The McSmiths recently made news when their new Off-Broadway show KATDASHIANS! THE MUSICAL! received a notice from representatives of Andrew Lloyd Webber that legal action will be taken if song parodies that used music from CATS were not removed, the point being that the subject being spoofed by the show was the Kardashians and not the classic musical. Lloyd Webber added that he was concerned about the rights of the T.S. Eliot estate. The lyrics for CATS were based on the poems of Eliot's 1939 "Old Possum's Book of Practical Cats."

The McSmiths quickly replaced the material in question.

Meanwhile, the master spoofer of Broadway musicals, Gerard Alessandrini, who, since 1982, has written countless song parodies for numerous editions of his smash hit Forbidden Broadway, has begun performances of his HAMILTON riff titled SPAMILTON. No objections have been heard from representatives of Lin-Manuel Miranda.