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Commentary

Blanche DuBois Meets the Copyright Cops

By Marjorie Heins

Blanche DuBois, the fragile, self-deluding southern belle in Tennessee Williams’s 1947 play, “A Streetcar Named Desire,” is one of the great tragic characters in American literature. But who owns Blanche, and can the holder of the copyright in “Streetcar” stop a creative artist from impersonating her, as the author and performer Mark Sam Rosenthal does in his recent performance piece, “Blanche Survives Katrina in a FEMA Trailer Named Desire”?

The University of the South in Sewanee, Tennessee, the holder of the “Streetcar” copyright, thinks it can. On September 3, 2008, lawyers for the University sent Rosenthal a cease and desist letter asserting complete ownership of “Streetcar,” “including, without limitation, the dialogue, plot, and characters Blanche DuBois, Stanley Kowalski, and Stella Kowalski.” The letter demanded that Rosenthal “cease and desist from any and all use and exploitation of the performance piece, including without limitation stage production, website and any other promotion,” unless he gets a license from the University.

“Blanche Survives Katrina,” which was a hit at the recent International Fringe Theater Festival in New York City, imagines Blanche anachronistically trapped in her illusions, pretensions, and exaggerated femininity as she confronts the devastation of Hurricane Katrina and its aftermath: homelessness, fast food, minimum-wage work, and evangelistic megachurches. Reviewers called the piece “funny and poignant”; “a humorous yet bitterly sad meditation on the desperate conditions during a national disaster where government relief was inept at best, criminal at worst”; and “a thoughtful, laugh-out-loud story based on one film icon’s descent into reality.” (“Streetcar” was made into a film starring Vivien Leigh and Marlon Brando.)

Rosenthal is hardly the first artist to have appropriated a character from “Streetcar Named Desire” in order to make his own commentary on American politics and culture. In 1990, the lesbian performance team Split Britches created another gender-bending look at “Streetcar,” called “Belle Reprieve.” The Split Britches website describes “Belle Reprieve” as a “steamy and hysterical” examination of “the mythic proportions of Stanley and Blanche,” which “both honors Williams and turns him on his head.” Whether the creators of such fictional commentaries must seek permission from and pay fees to the holder of the copyright in “Streetcar” is primarily a question of “fair use” under copyright law.

Fair use allows artists to borrow characters and plot elements, and even copy text, without seeking permission, when their purpose is commentary, critique, or other “transformative” use. The principle of fair use is particularly important for critiques and parodies that would not likely get the approval of the copyright owner. The Supreme Court has called fair use one of the most important safety valves for free expression in a copyright system that otherwise gives monopoly control over creative works to their owners, although for limited periods of time.

The Supreme Court described the concept of transformative use in a 1994 case involving a parodic rap music version of the Roy Orbison song “Oh Pretty Woman.” When an artist uses elements of a copyrighted work for purposes such as criticism, commentary, or news reporting, the Court said, the question is whether the new work

merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

In this case, called Campbell v. Acuff-Rose, the Court strongly suggested that the rap music version of “Oh Pretty Woman” was a transformative parody of Orbison’s “white bread” original, and thus, was fair use within the meaning of the law.

The case that is probably closest to the facts of “Blanche Survives Katrina” involved a battle between the owners of the rights to Margaret Mitchell’s classic Civil War novel, “Gone With the Wind,” and the publishers of a contemporary novel called “The Wind Done Gone,” which took most of the characters and plot elements of Mitchell’s story and essentially turned them upside down, exposing the racism of the original. Although the Mitchell estate initially won an injunction against publication of “The Wind Done Gone,” that injunction was vacated on appeal; the appeals court said an injunction was not warranted, because the case for fair use was very strong.

Emphasizing the importance of fair use as a free-expression safeguard, the court in “The Wind Done Gone” case said that fair use is important because it allows “later authors to use a previous author's copyright to introduce new ideas or concepts to the public.” The court found the parodic element in “The Wind Done Gone” to be clear: the novel “is not a general commentary upon the Civil-War-era American South, but a specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in ‘Gone With the Wind.’” The later novel, the court said, attempts “to explode the romantic, idealized portrait of the antebellum South during and after the Civil War.”

Whether or not “Blanche Survives Katrina” qualifies as a parody or critique of “Streetcar Named Desire” in the same way that “The Wind Done Gone” qualified as a parody/critique of “Gone With the Wind,” Rosenthal’s performance piece is certainly transformative. It also uses much less of the original work than “The Wind Done Gone” used. Indeed, it is possible that a court would find that “Blanche Survives Katrina” does not use enough of “Streetcar” to meet the test of “substantial similarity” under copyright law. Without “substantial similarity,” there is no copyright violation.

Cease and desist letters can be intimidating to artists, who are not experts in copyright law and who often lack the financial means to hire attorneys. Rosenthal has sought and obtained pro bono legal help, however, and his lawyers (at the firm of Orrick, Herrington & Sutcliffe) have responded to the cease and desist letter by asking the University's lawyers to specify the nature of their claims, including an explanation of why the fair use doctrine would not apply. For Rosenthal, who left a career in corporate advertising when, as his website explains, “his sick sense of humor cried out for spiritual release,” resisting the copyright owner’s demands is important. He first performed “Blanche Survives Katrina” at the 2007 HOT! Festival of Queer Culture. Blanche, “America’s most broken woman,” is “the role of his dreams.”

September 22, 2008

Update: In January 2009, "Blanche Survives Katrina" began a commercial run at the SoHo Playhouse in New York. Lawyers for the University of the South continued to press their copyright claims by sending another cease and desist letter on January 22 (Patrick Healy, "One Man's Blanche is a University's Infringement," NY Times, Feb. 5, 2009).

For more about ““Blanche Survives Katrina in a FEMA Trailer Named Desire,” see http://blanchesurviveskatrina.com/

For more about Split Britches and “Belle Reprieve,” see http://www.splitbritches.com/pages/moviefr.html

For a full description of fair use, see “Will Fair Use Survive?”, http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf  


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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