No, everything I’ve read is that Suh discovered it on October 30th. I have not seen anything stating that Suh’s agent first discovered it on the same date, which is why I’m asking.
Has any of the email chain between Clarion and Blickers been released by either side? I can just as easily say that if the agent had proof that the entire email chain omitted the public performance aspect, the agent would have revealed it by now. Neither side is showing all their cards.
Clarion claims they signed a contract (provided by Suh’s agent) and returned it along with the check to said agent. The agent claims the contract was not received, but does acknowledge receiving AND CASHING the check. (Is the agent in the habit of cashing random checks without knowing exactly what they’re for?)
Certainly some of the press coverage states that the contract was for performance rights (e.g., the Post Gazette: “At an agreed-to price of $100 apiece for five performances, it didn’t seem Mr. Suh was banking on getting rich off the student production of his off-Broadway play.”) If the college and the agent agreed to $100 apiece for five performances, and the college sent and the agent accepted $500, then that may well be enough to constitute a contract. I don’t know Pennsylvania law, but some jurisdictions would certainly consider that a binding offer and acceptance, the basis of a contract. The written document then would merely serve to memorialize the contract, not BE the contract. An implied agreement or an oral agreement is a whole lot harder (read, more expensive) to prove, but is not necessarily any less valid than a written document signed and countersigned.
…there isn’t anything to suggest that Suh’s agent had “discovered” it at any time other than when Suh asked her to “immediately write to Ms. Michel for clarification.”
The agent doesn’t have a need to play any cards because Clarion haven’t disputed Suh’s version of events.
As I cited earlier:
“It is not uncommon for licensing companies – not authors agents’ – to send agreements to non-professional producers, a term which which encompasses academic productions, that do not require a signature and returned agreement at all. An e-mailed contract is considered the legal “offer” and receipt of payment is considered “acceptance” of all terms. However, that was not the case with this specific agreement, which was never fully executed and therefore not in force.”
If you have a legal opinion that disagrees with this feel free to post it.
FWIW, Suh probably thought asking if they’d be able to cast non-Whites for the parts was the same as saying it had to be, and the director was clueless that casting ethnically specific would be a bigger deal for this comedic farce than say for a school production of Joseph and the Technicolored Dreamcoat. Unless a major theme of a work is race the norm, in all directions, casting at a college level is usually colorblind, and again, often even genderblind if the gender of the character is not critical. The director is pretty straightforward: she was scared about dealing with the religious right backlash in her community. But they never had to raise a finger in objection.
It’s really not in much dispute that the college messed up. Or that Suh has the legal right to do what he did.
It is not much in dispute either that the director was being a bit provocative within the community by putting on a show that was as “irreverent” as this one was.
Or that Suh would have allowed the show to go on if the roles were given to imaginary non-Whites who were trying out for the parts.
And it is also very clear that if Suh had (as both I and mhendo have suggested) allowed the work to be performed given that there were no minorities available for the roles, but on the proviso that it be performed on a date that he could attend and lead a discussion before or after about the issues regarding the lack of minority opportunities in theater and why casting minorities in minority roles (at least when possible) matters to him as an issue of principle, would have had a positive and bridging impact.
What will instead be the result of this effed up affair?
Maybe fewer colleges with non-diverse populations willing to deal with material outside the Eurocentric canon. And the creation of adversaries where allies had formerly stood.
I don’t think Suh ever expressed that the play must be produced with non-white actors.
As for the communication, I don’t know. I can’t come up with a reasonable explanation for the different stories without someone fibbing. For one of many examples, how can a price to produce the play be agreed on without Suh knowing the play was going to production?
The only reason I do so is because half a dozen people in this thread claimed that Clarion was pulling a fast one and absolved Suh of any responsibility. My basic contention can be summed up as:
(1) Suh has at least some culpability in this situation
(2) Since he has culpability, he has a responsibility to come to a reasonable solution so as not to harm innocent victims
(3) Suh was given several reasonable solutions and he declined.
Given those facts, I conclude he’s an asshole. Any disagreement?
The operative word here is “tell”. As in, you communicate to your client your restrictions on use of the photo. If, for example, you restrict your photo to the internet that’s probably something you say in the first e-mail responding to an inquiry. It is also something that is in your contract. It’s not something you pop on a client after they’ve put months of effort into using your photo.
…If a client spent months on a marketing campaign using one of my images (that I had licensed to them for editorial use only), then they told me the day before the campaign was to launch that, “oh, by the way, we are using your image for this big marketing campaign!” I would rightly tell them to bugger off. You are granted usage rights. You don’t get to just demand them.
And there was no contract in this case. And you have also declared that the contract is irrelevant, so why are you bringing it up?
(1) Possibly, although this hasn’t really been adequately demonstrated, IMO.
(2) No.
(3) No. The only way to arrive at a “Yes” for this question is if we take for granted YOUR definition of reasonable, which seems to be, “I don’t like Suh’s policy of casting only people of color, so I believe he should do whatever the theater people want, no matter what the actual facts of the case and of the negotiations turn out to be.”
That’s not true. If Suh wanted to cancel the play for a non-racist reason I would hold him to the same standard. And, no, I also do not think he should do whatever the theater people want. He’s free to make reasonable requests in the process of coming to a solution. In this case, Suh didn’t.
No, it is the user’s obligation to ensure that he or she has permission to make any specific use. The owner benefits from the presumption that any use that is not permitted is unauthorized.
Do you think there is an endemic problem of this? Really? Pretty much all colleges and even High Schools know the rules. My read is that even this one did and does but that the ball got dropped as to whose job it was to follow through on completing the contract … innocent screw ups happen.
They asked for input from Suh along the way; he was too busy otherwise would have. No ill intent in being too busy but no intent on the college’s part of only paying lip service either.
No, the issue here is not that the college messed up on the contract, that would have been no problem for Suh, he would have been generous and forgiving, even willing to Skype and discuss with the actors and director as requested, if the race of the actors were other than White. If somehow it was cast with those minority actors who wanted the roles who did not exist at that school.
Not really. A director need not get specific permission for every part of the production given a general license. The writer would have to prove (depending on the contract language) that something constituted enough of a change to violate the contract.
Now now, I know it’s been a bit of a shock to you to find out that a playwright whose works are under copyright retains legal control over how his material may be used, but there’s no need to overreact so drastically.
You will be reassured to know that neither Suh nor anybody else is legally entitled to restrict who may comment on his works or his exercise of legal control over the rights to his works. So you can go ahead and post your comments regardless of your non-South-Asian ethnicity.
It isn’t my fault that you don’t understand how licencing works.
Usage rights are granted, in my case, via a usage licence.
Here is the one that I use.
We start by negotiating what usage rights are required by the client. I assign those rights by ticking the appropriate boxes. I send it to them to sign and acknowledge, they send it back to me. I mark down the return date and I file it.
This is a clear, easy to understand process. If any part of the process is not followed: the rights are not assigned. If the contract (or licence) is not returned: the rights are not assigned.
You ask: “It’s not something you pop on a client after they’ve put months of effort into using your photo.” In the example I gave you (which you claim does not address your point) I stated that the photo had been given to the client for editorial use. Since you don’t seem to comprehend what that means I’ll spell it out to you. It means that we negotiated the contract, I assigned usage rights (to only use the image for editorial use), sent them a copy to sign and they returned it.
I spelled out quite clearly what usage rights they had. I’ve got proof, in my files, that they have agreed to only using these images for editorial use.
If the client were to start work on a new marketing campaign using my photo as the centre piece of the marketing, they need to be granted Advertising usage rights from me before they are allowed to use my image for that purpose.
If they were up front with me in February and spelled out clearly why they wanted to use my image I would tell them in February that no, they couldn’t use my image for that purpose. I might not have model releases for everyone in the photo. I might not want my work associated with their company. I might simply not like the person I’m dealing with. No matter the reason: I have the right to not assign those rights. But because they were up front with me in February this gives them plenty of time to commission another photographer and to shoot the image they need.
If they started work on the marketing campaign in February using my image, then I found out in October that they were planning on using my photo for the marketing campaign, I would give them the same answer in October that I would have given them in February if I had known: which was a no, you cannot use my image for your marketing campaign. I informed them, as soon as I was made aware that they were planning on infringing the terms of the usage licence granted to them, that they cannot use my image. Does that mean some poor intern who has spent the last eight months working on the marketing campaign is a victim of my “moral failure?” Hell no. I haven’t done anything wrong.
And Suh hasn’t done anything wrong either.
According to Suh, permission was granted in January to use the play for classroom purposes.
In May he is informed they are turning the play into a musical. In May Suh asks the question “However, if their intention was a full production with a public audience, I asked specifically whether they would be able to honor the general ethnicity of the characters.”
This question was not answered.
In one of the articles cited in this thread there is an un-attributed claim that Clarion did have a performance licence for five shows: but considering the disingenuous statements that have come out from both Michel and the University PR company I would have to actually see this licence before I believed it. Also: an unreturned licence is not a fully executed licence. As you can see with my sample licence form changing the licence terms is as easy as ticking a box. That is why it needs to be returned to be valid. If Clarion did consider they had a valid performance licence then they were on solid legal ground to go ahead and perform the play. But I don’t think they did: and they know it, which is why they allowed this to play out in public the way they have instead.
So hopefully now you can gracefully conceded that I actually have addressed your point pretty comprehensively. Suh communicated to Michel the way the play was allowed to be used at the beginning of the process. Over the next few months the way the play was to be used changed: and it is Clarion’s obligation to inform the agent of the new usage and to seek a new licence. It was not something Suh popped on a client after they’ve put months of effort into producing the play. It was something Clarion never “popped” on Suh, because they never told him they were doing it in the first place.
…do you really think that this will cause fewer colleges with non-diverse populations to be less willing to deal with material outside the Eurocentric canon? Really?
Do you really think this will create more adversaries where allies had formerly stood? Really?
Clarion hasn’t conceded they dropped the ball here. The official press release from the school puts all the blame on Suh.
Being busy is why writers have agents. Being busy isn’t an excuse for the school not to have done its due diligence.
Not answering very specific questions is paying lip service. They didn’t ask for Suh’s input all the way along. Suh “was informed they were experimenting with the piece as a musical.” That isn’t asking for input. That is telling Suh that they are changing the play and expecting him to just accept it. He did accept it conditionally. But he never got a response to the question he asked until days before the play was due to be performed.
The issue here is that the school messed up on the contract. The issue here is that they didn’t do what you claim they have done: which is ask for input from Suh along the way. If they were clear with their vision from the start then maybe he might have been okay with a less diverse cast.
I read his words as being asked on several occasions to participate by the college and their request being rejected several times. And then when asked again to engage and the crossed wires became apparent rather than responding directly to the request to participate and to engage he went on-line and then responded by way of his agent with a cease and desist. By his report because the actors were White and his responsibility to provide opportunities for artists of color to be seen, because the circumstances of professional theater with a diverse pool of talent to call upon and a small school with no one of color trying out for the roles demand the knee-jerk same response.
