If this was a thread about somebody making a movie adaptation of a novel without the author’s permission, I don’t think it would be so surprising.
He could sue the college. The school will likely lose.
Also, when I was doing in college theater, there were only a few rights companies. When you wanted to do a show, you didn’t go to the playwright, you went to one of the 3 or 4 different companies that handles these things for playwrights. The threat if you pissed one off is that they wouldn’t grant the rights to perform any of the other plays that company held the rights to any time soon. If you pissed one off a lot, the others would not allow you to perform any of their plays either. The school could end up not being able to do anything that isn’t in the public domain.
Well, yeah, but it seems even Hollywood is freer to do what they like with the source material once they get their hands on it (though I realize those are different contracts and different context, since adaptations necessarily involve rewriting). I wonder what modern moviemaking would be like if authors had the same rights as playwrights over “performance” of their works…
They do have the same rights, it’s just that Hollywood is more capable of convincing the author it’s worth his while to sign a more permissive contract.
As Grumman notes, they do have the same rights. It’s just that movie studios and producers generally insist on having a lot of creative control over the movies they produce, and are willing to shell out boatloads of cash (at least in comparison to most theater companies) to make that happen.
The author of a novel is just as entitled as Lloyd Suh, for example, to insist that certain characters in a movie adaptation of the novel be played by actors of a certain ethnicity. But if the author wants that, he or she has to make sure that the provision is negotiated into the rights deal that is signed with the movie studio.
I like to think that i’m not an especially greedy person, but i’ll be very honest here: if i were an author and a studio wanted to make my play or my novel into a movie, there are probably quite a few concessions i’d be willing to make in order to secure the six- or seven-figure deal.
U.S. courts generally won’t enforce contract provisions “contrary to public policy”; that means, for example, that you can still have racial covenants on your deed to property, but they are no longer worth the paper they are written on. Has there been any jurisprudence on enforcing racial discrimination in the manner Lloyd Suh wants?
In this particular case, the fact that there never was a signed contract is an added wrench. However, supposing that the college had signed the contract and then cast white actors anyway; would a court still enforce such racial requirements?
I remember reading that when JK Rowling sold the film rights to the Harry Potter series, one of her conditions was that the major characters be played by British actors. Had she not done so, it’s very likely that many of these roles would have gone to American actors.
Of course, by this time JK Rowling was already successful beyond the wildest dreams of most authors and from the studio’s perspective a Harry Potter movie must has seemed like as close to a safe bet as one is likely to get in Hollywood, so she was in a position to negotiate.
Yes. Antidiscrimination laws include a exemption for Bona Fide Occupational Qualifications. (BFOQs). If membership in a particular class is required for performance of a job, then discrimination is allowed. For example, airline pilots can be forced to retire if they’re too old, and strip clubs don’t have to hire male dancers.
Here’s an article from the California Law Review discussing the issues in depth. In general the law has been interpreted to say that First Amendment rights to free expression create a BFOQ for actors. If you really need an Asian man to be cast in a role to tell the story you want to tell, then discrimination is justified.
Here’s an excellent blog post from a woman who’s been teaching and producing professional theater for 20 years.
Several points she makes:
- Not securing the rights to a play before staging it is shady and unprofessional.
- Trying to shift the blame for this onto the playwright is appalling.
- Casting/staging restrictions are not uncommon – for example, Porgy & Bess can only be performed by an all-black cast.
- There’s a long history of white actors getting Asian roles, while Asian actors struggle to find jobs. Hence Suh’s unwillingness to have his work used in such a manner.
I was reading that article myself earlier this morning. It certainly does a solid job of outlining the way that these issues have been dealt with in the realm of casting.
One thing to note about it, however, is that the author does seem to believe that there would be a legal justification for narrowing the scope of BFOQ exemptions in the entertainment industry, and restricting such exemptions to places where changing the race or ethnicity of the actors would place “a substantial burden on the narrative.”
He suggests that, as it currently stands, too many productions use the BFOQ exemptions as a sort of carte blanche for restrictive racial casting, and for excluding minorities from roles that really don’t require specific races and ethnicities. As he notes in the article, addressing this issue involves a rather precarious balance between creative discretion and notions of equal opportunity.
Who gets to decide whether you “really need” an Asian man, versus merely “want” an Asian man?
In at least some of the articles about this particular case, it sounds like Lloyd Suh would be happy with any actor of color; it could be South Asians, but just as easily East Asians or Africans or Australian Aboriginals or American Indians, just as long as the actors weren’t white. “I could not allow the play to be performed with White actors in non-white roles before a public audience.” Note that he said “non-white roles,” not specifically “South Asian roles.” There’s at least a reasonable argument that Suh’s position is political, not artistic: that he wants to promote job opportunities for non-whites rather than tell a particular story that depends on the skin tone of the actor (what is an “Asian” skin tone anyway?).
Is this a factual dispute over whether these are really Bona Fide Occupational Qualifications (such as age restrictions for pilots) or merely an attempt to subvert Title VII? I would argue that such a dispute exists, and an illuminating court case awaits some eager lawyers.
It’s a very difficult line to draw, which is why its better to err on the side of free speech. There are an infinite number of intangible nuances that go into casting. It matters when it matters and it doesn’t when it doesn’t, and every role is a separate judgement call. So unless casting restrictions are egregiously and systematically unfair, artistic and political expression should prevail.
In the same Facebook post were Suh made the statement quoted above, he said that in his communication with Clarion he told the director “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.”
I do not think it is fair or accurate to interpret this as meaning that Suh only objected to white actors being cast in these roles.
I can tell you right now, my directing professor in college would shit bricks if someone there tried to do what the director at Clarion tried to do. It’s just not done.
Actually, the civil courts are based on exactly the opposite premise: if you say someone hurt you, that person can deny it. And then you have to prove that they hurt you, and they can call evidence to show that they didn’t.
This has been repeated twice in this thread, and while it’s generally true, the Gershwins have been flexible and allowed exceptions. They have usually allowed actors with other skin colors if the production wasn’t a touring production, and demanding an all-black (or sometimes any) cast would have required going outside the population of the area. When the request for an all-white cast was obviously motivated by something other than a dearth of qualified performers (e.g. South Africa), it was refused.
Since a non-touring production is unlikely to get a great deal of exposure, and unlikely to become the “definitive” production. Versions of the opera that were making casting changes out of necessity, rather than some politically motivated change, were allowed.
In the case of Suh’s play. When you consider that they’d converted it to a musical, as well as the casting change; I can understand why he’d not want it to go forward. However, if a small college wanted to do the play as written, with a less than optimal cast: I’d advise him to let it go forward. If he didn’t want to, I’d ask him if he only wanted the “perfect” versions of his play to be produced.
But this director was really asking to collaborate with Suh by re-working his play into a “punk rock musical”, without even giving him the courtesy of working out the rights to produce it in the first place. Leaving aside the fact that anyone declaring that they’re producing a “punk rock musical” is probably clueless about what they’re doing on several fronts, Suh had every reason to object to that. By writing a play, he didn’t agree to go along with every mutation that some random fool decided to make it into.
And really, if you want to push the boundaries of musical theater: either write your own libretto, or appropriate one of the many fine ones available in the public domain. Don’t pester some guy who’s not interested in your vision, and then drag his name through the mud when he objects.
Except if that’s right, that movie studios have determined that their movies make more money if white is the default, then that is not an irrational decision, and is not against common sense.
Movie studios are in the business of making money. Like other business corporations, they will make decisions that maximise their profits. That is not an irrational decision, when their job is to make money.
That rational decision, which leads to them making more money, may be an immoral one when measured against non-pecuniary measurements. It may be contrary to other important values in society. But it is not irrational or contrary to common sense, since it makes more money, which is the metric business corporations use.
Which illustrates why there are civil rights acts and human rights acts; because society has concluded that making money is not the only social good. And because society has concluded that it is not possible to rely on the market to advance non-pecuniary social values, such as equality of opportunity in the workplace.
I imagine he only wants the versions that don’t contribute to racial erasure to go forward.
This whole thing would have played out differently if the director had taken the time to talk with Suh. Maybe he would have agreed to her nonstandard casting if she’d made a convincing argument for it. At the very least, she would have found out early in the process that she had a problem.
Instead she just plowed ahead without consulting him and without a contract. This is entirely on her head, and her efforts to trash Suh for enforcing his rights as the author are really obnoxious.
She did invite Suh to participate and Suh declined based on time constraints.
She also paid for the rights and had communication with Suh’s agent.
It does not look like she was trying to pull shenanigans. This is a small time college performing a play by a small time writer. It’s not surprising to me that not all the Is were dotted and Ts crossed. Someone that contacted the artist, worked with their agent, and paid for the rights to use the play looks like someone trying to do the right thing. Legally speaking, theres probably enough for a contract to exist, but we can’t know for sure without the exact communication.
It’s obvious there was a lack of communication. Suh didn’t know that the play was happening despite his agent negotiating and cashing a check. Pretty clear that those two weren’t talking as much as they should have. As for the communication between Suh and Michel we don’t know what was said, so it’s tough to judge.
Ultimately who’s at fault between Michel, Suh, and Suh’s agent isn’t important because they aren’t the people that paid the price. The one’s that are paying the price the actors who lost months worth of work because of the color of their skin. Regardless of the rightness or wrongness of Suh’s racial quota, that makes Suh a total asshole.