What is guaranteed to inspire healthy debate, creative teamwork, and at least a few giggles in the classroom? Staging a dramatic performance!
Whether it’s budding elementary-age thespians, middle-schoolers confronting their first classic novel, or students in a high school theater arts class, students learn a lot about themselves and their subject matter when they write and perform plays based on the books they’ve read.
Of course, kids can learn a great deal about nearly any topic just by reading books. But if asked to write and act out scenes from those books they’re bound to learn even more. Dramatizing books helps students dig deeper. Details are important on stage. The costumes have to be right, the set has to be right, accents and dialects have to be right.
But don’t copyright issues arise when teachers and students “borrow” material from books to create plays? Are teachers and students allowed to turn books into plays without permission from the books’ authors or publishers?
As is the case with many legal questions, the answer to the above questions is, “it depends.” It depends on who is involved in the plays, who is allowed to view them, how many times the plays are performed, whether admission is charged, where the performances take place—and a whole lot more. Within certain limits, though, it’s fine to give students the time and opportunity to hone their dramatic skills—even without permission from the copyright owner.
The key to determining whether permission is required lies in the “fair use” exception to copyright law. Many educational uses fall within the fair use exception. The mere fact that teachers or students plan to use an author’s copyrighted work in a school setting does not automatically make their use a fair use, though. The following fair use factors must be evaluated:
1. The purpose for which the copyrighted work is used;
2. The nature or characteristics of the copyrighted work;
3.The amount and substantiality of the copyrighted work that is used; and
4.The effect of the use on the marketability or value of the copyrighted work.
Here, as on stage, the details matter.
For instance, what if the students in question are second graders who want to stage a play based on Kevin Henkes’ children’s book “Lilly’s Purple Plastic Purse”? They work on dialogue and blocking as a class, paint a backdrop, create costumes, and make props. They rehearse select scenes from the book for a couple of weeks, then they host a “performance” in their classroom for their parents. Is this a “fair use” of Mr. Henkes’ work or must the teacher request permission before staging the play?
Applying the four factors to these facts leads to the conclusion that the second graders’ use of Mr. Henkes’ book likely would be considered a fair use. (Unfortunately, the law provides no hard and fast rules regarding fair use, so we must deal in probabilities. Fair use is determined on a case-by-case basis and involves a balancing of the above factors.)
1. The teacher’s purpose is non-profit (no admission is charged) and educational. These are uses that generally are allowed under the first factor.
2. The highly creative nature of the book weighs against a finding of fair use, however;
3.The children are performing only select scenes from the book, which weighs in their favor.
4.The children’s one-time performance for their parents is not likely to negatively affect the marketability or value of the work. (If anything, it may prompt some parents to go out and buy the book.)
Accordingly, in this scenario, the factors seem to weigh in favor of a finding of fair use.
The fair use analysis above could easily change if the facts relating to the performance change. For example, if the script is expanded to include all scenes in the book, the script is used year after year, the children participate in multiple performances of the play before an ever-widening audience, or admission is charged, the use of Mr. Henkes’ book without permission might be considered an infringement of his copyright. This doesn’t mean, of course, that a book can never be made into play under these circumstances. It just means that the person creating the play must obtain permission.
Once permission is obtained (which frequently also involves negotiation of royalties), the playwright is free to adapt a book for the stage. When the adaptation is finished, the playwright has created a new and separate copyrighted work that the playwright owns.
This is exactly what happened with Lilly’s Purple Plastic Purse. Minneapolis playwright and performer, Kevin Kling, obtained permission from Mr. Henke’s publisher and wrote a wonderful adaptation of Lilly. His play has been performed locally at the Minneapolis Children’s Theatre and at venues across the country including the Kennedy Center for the Performing Arts to rave reviews.
So teachers, don’t shy away from using drama in the classroom, at least not because of copyright concerns. The fair use exception was created to allow such educational uses. Keep the fair use factors in mind and respect its limits. And who knows, one of those second graders just might grow up to become a successful playwright!