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All the world's a stage, but who can be the players?

Ann W. Parks
Daily Record Assistant Legal Editor

(reprinted by permission)

They assembled onstage at the Hippodrome Theatre for a lively evening of dialogue: a Baltimore casting director; a television actor; a playwright; a literary manager; a theater director -- and a lawyer.

No, it wasn't the newest Mel Brooks musical. Clayton LeBoeuf -- of "Homicide: Life on the Street" fame -- didn't burst into song about how he was going to give up theater for the fast-paced life of law school. Nor did University of Maryland law school professor Robert E. Suggs wax poetic on any secret longing to be a Broadway producer.

As part of the University of Maryland's "Linking Art & Law" series, the law school teamed up with the Hippodrome Foundation Inc. -- the nonprofit presenter of Broadway shows in Baltimore -- to put together a panel discussion Wednesday night on issues raised by nontraditional casting: the use of actors of different races, genders, disabilities, etc. in roles where they may not traditionally be considered.

The discussion was illustrated by nontraditionally cast scenes from the film "Steel Magnolias"; from Shakespeare's "The Tempest"; and from Tennessee Williams' "The Glass Menagerie"; and performed by actors from the Vagabond Players, the Audrey Herman Spotlighters' Theatre and the Arena Players.

"There's not another law school in the country that is using theater to teach the public about the law," Teresa LaMaster, assistant dean for community affairs said last week -- calling the program "a fun, creative extension" of what the school is trying to accomplish.

In recent years, the law school has used the creative goings-on of the theater next door to present, for example, a 2003 panel discussion on "Hairspray" -- exploring Baltimore's racial climate in the late 1950s and early 1960s -- and a 2005 environmental law program, "Preserving Our Circle of Life" in the context of the Disney musical "The Lion King."

Other programs by the school using art to imitate life have included the use of CenterStage's "The Exonerated" to teach high school students about the death penalty; and a staged reading of trial transcripts from Brown v. Board of Education for the 50th anniversary of that Supreme Court decision. "We're not just about creating lawyers, we're about contributing to the community," she said. "There are courses in law school about art and the law -- but there's no one who mixes performance with faculty expertise to bring it alive."

Big River
The current collaboration between UM law school and the Hippodrome Foundation came about because of a highly publicized incident last May that brought the issue home to their theatrical doorstep.

The Cappies of Baltimore -- a program for high-school theater in which student critics attend and review each others' shows -- had rented out the Hippodrome Theatre for an awards program. Two students from Glenelg Country School in Howard County planned to present a song from "Big River," a stage version of Mark Twain's novel "Huckleberry Finn," that was to be broadcast on C-SPAN.

"We had Huck Finn and Jim, and two of the actors -- very good actors, seniors in high school -- had agreed to switch roles, nontraditional casting," explained Hippodrome Foundation Director Olive Waxter. "What happened was that the [Rodgers & Hammerstein Organization] stepped in and said, 'We can't have a white guy playing Jim and a black guy playing Huck.'"

The New York-based organization, which owned the copyright in the play and had licensed the right to perform it, was able to stop the students from switching roles, UM's LaMaster said.

"They said it changed the nature of the play too much," she noted. "The Hippodrome Foundation had an interest in that issue and they approached us, because we'd worked together on these things."

While the thought of Hamlet in a wheelchair -- or an olive-skinned Annie -- may be completely novel approaches to some theatergoers, the issue of nontraditional casting is not a new one, Waxter said.

"Nontraditional casting is an age-old question, whether it should be allowed, but as time passes, people's interest in it increases, because in other avenues of the world, [equal opportunity] is at the forefront of people's daily lives," she noted.

The possibilities, and the implications, raised by nontraditional casting can be endless. Should a Caucasian woman -- or a transgender man, for that matter -- play "Miss Saigon"? Should an all-girls school be able to perform "Grease"? Is it right if the estate of George Gershwin decrees that "Porgy and Bess" can only be performed by blacks? Can "Twelve Angry Men" include one angry woman? "In 'Hairspray,' there's a heavy-set woman that's written into the play, but John Waters' direction was that a man be cast in that role, and then they put filler on the actor to make him look like a woman," Waxter said. "So if you were a heavy-set woman, and you had every quality for that role, actually, you can't play that role. It can cut both ways."

Derivative work?
Some of the questions raised by nontraditional casting are issues of copyright law. A change in the race, gender, sexual orientation or disability of a character, may, in some cases, create an unauthorized derivative work that infringes on the copyright of the owner.

A copyright holder has the exclusive right to prepare a derivative work, which could include a translation of a novel or a film of the novel, according to panelist professor Suggs.

"If you switch the races of the principal protagonists, that very well may be a derivative work, and the license would be to publicly perform the work, not to create a derivative work, and a judge has the power to enjoin it," Suggs said, adding that it is not entirely clear that such a change is a derivative work. Another obstacle can be the length of copyright, which is currently the life of the author plus 70 years, he said. Perhaps the author's opinion shouldn't matter when the author is dead and the world has changed. But even if it were possible to resolve all the issues raised by nontraditional casting in the courts, we might not really want to. "Is it better left so we can dispute about it as theater group and author?" Suggs asked. "These are issues that are polycentric ... judicial resolution is probably not going to create a happy result."

UM law professor Taunya L. Banks, who was instrumental in putting together the event, agrees that the issue raises many questions without answers. "Are there certain productions that by their very nature demand that the characters be a certain race or a certain gender?" she said, wondering how much control a copyright holder should indeed have. "Is it fair for you not to allow people to visualize it the way they want? Isn't that what creativity is all about?"

I can be taller

It is a place where intellectual property and civil rights laws can collide spectacularly. If a judge enjoins the race-switching of the principal protagonists, isn't that discrimination? The 1948 case of Shelley v. Kramer prohibits judicial enforcement of racially restrictive covenants, although there are no cases on point in this context, Suggs said.

Further, if a copyright holder "says, 'I'm perfectly willing to license your theater group' [and then says] 'oh! Someone told me you're going to cast it nontraditionally so I'm not,' that's a refusal to contract based on race and it seems [42 U.S.C.] section 1981 would apply to that," Suggs said. Nothing in the licensing contract for the Cappies production of "Big River" ever mentioned race, said H. Russell Frisby Jr., a Washington lawyer and father of the student who played Huck.

"All of the slaves were white and Jim's dad was Asian," he said, adding that the decision to switch roles was actually made due to the actors' voices, not race. His son was a tenor; the role of Huck was a tenor; the role of Jim was a bass. "National Cappies was concerned that if you imposed race-based casting, most high schools could never put on a play." The licensors relented a month after the awards ceremony, allowing the students to perform the song at the national Cappies gala at the Kennedy Center, Frisby said.

All the panelists agreed that nontraditional casting should be a nonissue in a school setting.

"I'm interested in conditioning audiences to accept actors regardless of race, gender, disability, not in making a statement," Donald Hicken, theater director of Baltimore School for the Arts, commented. But in the professional world, actors denied a particular part might not be so fortunate. Like Dustin Hoffman's character trying out for various roles in Tootsie, casting directors may be looking for someone taller -- someone shorter -- someone else.

In most employment discrimination cases, "there's an allegation of discrimination and then ... the other side has to present a nondiscriminatory basis for what they did," UM's LaMaster noted. "In this kind of context, you might find a lot of occasions where that's fairly easy to do -- they needed someone who was tall, because our other actor was tall."

And the issue can crop up in the most unexpected of places. The able-bodied actress performing in Wednesday night's "disabled" version of "Steel Magnolias," in fact, ran to and from her stage-prop wheelchair between scenes -- an irony that was apparently lost in the lively discussion on opportunities and attitudes towards wheelchairs. (Are there no disabled actors in Baltimore? Or were they all rehearsing for "Hairspray"?)

While lawsuits have been undoubtedly been filed by actors, "there's nothing that's ever gotten anywhere," Suggs said. "How many people are they going to audition, 100? And [if] there's only one that's chosen, how do you know you've been discriminated against? If you bring the action, you get a reputation as a troublemaker, litigious, and who wants a troublemaker? You'd have to be the best actor in the world for anyone afterwards to take a chance on you."

Hanging on
Still, the point of the discussion was not to place the playwright -- or those involved in the casting decisions, for that matter, in the role of the Big Bad Wolf.

"I'll mix them up, believe me," said Pat Moran, one of Wednesday's panelists who does casting in Baltimore for television and film. "They might want a younger woman, and we'll show them a middle-age heavyset woman. Ultimately it's who's the best actor to make [the writer's] words dance." Playwright Rosemary Frisino Toohey, another of the panelists, said that most nontraditional casting -- in a race context at least -- works fine for her. "We want to be open-minded, we don't want to be the cause of someone not being able to pursue their art," Toohey said this week. "In lot of cases, it's not worth a fig."

She admits, however, that she's not completely neutral with respect to drastic changes -- and like most writers, has a certain physicality in mind when creating a character.

"I'm trying to create a body of work; I don't want anyone to mess with it, to a certain degree," she said. "For [those] of us who aren't Shakespeare, I have to hang on to the ownership of what I'm trying to write." The UM professors hoped that this event, like others before it and those that come after, will help promote a richer understanding of arts and the law. "We're talking about theater, we're talking about how law impacts the theater, and the same time we're seeing theater," Banks said. "And it's free."

The panelists
Clayton LeBoeuf, actor/writer
Pat Moran, Pat Moran Casting
Donald Hicken, theater department head, Baltimore School for the Arts
Rosemary Frisino Toohey, playwright
Otis Ransey-Zoe, literary manager, CenterStage
Robert E. Suggs, professor, University of Maryland School of Law
Photo by Sonja Kinzer

Posting Date: 11/18/2005
Contact Name: Ann W. Parks
Daily Record