Note: To Fix or Not to Fix: Copyright's Fixation Requirement and the Rights of Theoretical Collaborators

By Carrie Ryan Gallia. Full text here.

Despite its typical responsiveness to technological advances, copyright law has not kept pace with the emergence of the director as the primary player in American theater, leaving the contributions of this essential, creative artist without recognition or protection. Because work must be original, authored, and fixed to warrant copyright protection, critics cite the lack of fixation in live theater as a fatal obstacle to protection. This Note contends that stage direction is not only original and authored, but that contemporary legislative and judicial dilution of the fixation requirement has led to a doctrinal framework flexible enough to render stage direction copyrightable as a derivative work. This Note first traces the history and purpose of the Copyright Act and its requirement that work be “fixed in any tangible medium of expression.” It then explores the relationship between copyright law and theater directing. Finally, this Note considers solutions to the issue of the intellectual property rights of stage directors and argues that, given the lack of robustness in the fixation doctrine, the staging of a play is sufficiently fixable to warrant protection under the Copyright Act.