An image prepared by Temporary Distortion's Kenneth Collins comparing photos of Factory 449's "The Ice Child" and his own "Americana Kamikaze"

UPDATE: Factory 449’s official statement has been added at the end of the post (12:44 a.m., June 7)

What’s the line between an acceptable form of conceptual appropriation or imitation, and inappropriate and unethical (or even illegal) appropriation of intellectual property?

That’s the question underlying a stew of anger in the NY downtown scene over the past couple of days, since Kenneth Collins, one-half of the creative team behind Temporary Distortion, brought attention–primarily via a Saturday, June 2 Facebook post–to a production in Washington, D.C. that bore a striking resemblance to the company’s 2009 work Americana Kamikaze.

The D.C. production, based on an original script by members of the three-year-old ensemble Factory 449, is entitled The Ice Child, and closed its run (May 18 through June 3) just as Collins was raising his objections. As the photos herein (prepared and provided by Collins) make clear, the design of the show was too similar to be coincidence: the same set boxes, video positioning, and direct address performance. And like Americana Kamikaze, which explored elements of Japanese horror film, The Ice Child was a horror play.

By Sunday, June 3 there was confirmation. Yuki Kawahisa, the lead actress from Kamikaze, had left a (I can only assume angry) comment on Factory 449’s Facebook page. Like several others from Temporary Distortion’s supporters, it was deleted, but Factory 449 co-founder–and co-author of the play–Rick Hammerly responded directly to Kawahisa, apologizing for the initial deletion of the comment, and stating (Collins provided me the email, forwarded from Kawahisa) in part:

OF COURSE we have heard of you. Your show gave us the structuring idea (actors & video), then Lisa Hodsoll and I wrote the text. I think “Americana Kamikaze” was amazing. However, we couldn’t come close to the video you all shot. Afraid we are too small (and poor) to get the breathtaking footage you all shot.

By the time I spoke to Hammerly on the phone on Monday, he seemed a little beleaguered and besieged. From what I understand there’s still been no direct contact between the companies, and Hammerly expressed some frustration at the deluge of complaints from various people he didn’t know, without hearing from any principal party directly.

In our conversation, Hammerly elaborated on the genesis of the piece. Following discussions of how to do a season of horror theater, the company–which just in 2011 had won the Helen Hayes (the regional theater award) Award for “outstanding emerging theater company”–decided to develop their first original work. The initial concept was inspired by stories by Ambrose Bierce and Edgar Allen Poe about claustrophobic spaces (the play concerns a woman who wakes up kidnapped and locked in a freezer), and furthermore the company decided to include an opportunity for another member who worked with film and video to contribute to the piece, but otherwise there was still no script, story, or design concept.

Image prepared by Kenneth Collins

According to Hammerly, while researching horror theater they came across a video clip of Americana Kamikaze, and, interest piqued, proceeded to purchase a full-length video from, ostensibly, OntheBoards.tv (Hammerly couldn’t recall the site off the top of his head). Temporary Distortion’s design and staging appealed to them for a variety of reasons. Aside from responding to the provocative design just on its own, the boxiness and use of video not only allowed for a heightened sense of claustrophobia but for a dynamic presentation in the small space they were to perform in.

Furthermore, the company had previously worked with direct-address performance, beginning with one of their first productions, Sarah Kane’s 4.48 Psychosis, so it fit into a certain sort of tradition for them. Other similarities, such as the use of amplified speech, were later additions and more coincidental–microphones were only added during tech to accommodate the air conditioners which had to run during the performance, suggesting (I haven’t seen the play) that the company didn’t attempt to imitate more complex elements of Temporary Distortion’s live sound-scoring.

But otherwise, Hammerly was forthright about the company using elements of Americana Kamikaze‘s design. Explaining his position, he stressed to me the dissimilarities of scripts, making clear that Factory 449 was much more story-driven. He also stated that the performers were far less isolated than in Temporary Distortion’s work, and the live actors were directly interacting with the performer on the video.

Much as I suspected going in, Hammerly and Factory 449 represented the issue primarily a matter of employing a staging technique or design conceit in a different context, because it was a different play text, and thus in theory a more acceptable form of appropriation. For a company like Temporary Distortion, of course, the performance piece itself constitutes a dramatic text that they see as every bit as much authored by them–and therefore deserving of protection and credit–as a playwright would a playscript. Hammerly only seemed to accept that distinction when I used the analogy of a visual art installation, suggesting that the imitation of Temporary Distortion’s design was, from that perspective, as problematic as copying a visual artwork.

Based on our conversation, it certainly doesn’t seem like Factory 449’s intent was malicious, and Hammerly, the only member I spoke to, was forthright in discussing the situation, though any crediting or acknowledgment has apparently occurred after the fact, and after having been accused by Temporary Distortion. Nowhere else does any attribution to Temporary Distortion’s show appear, including in an interview preview in the Washington Post from May 16.

The end result, borrowing so liberally from Temporary Distortion’s show, seems to have crossed a line of professional courtesy and ethics. Throughout, I’ve done my best to be even-handed in trying to understand the various parties’ perspectives, but in discussions with other designers and artists whose work spans the experimental to mainstream, the sense seemed to be that The Ice Child was just too similar, without substantially altering or adding to the concept, for anyone to feel comfortable with the practice, particularly given the critical recognition of the production’s unusual style without credit being paid to the individuals who developed the concept originally. Of course, this perspective was almost uniformly based on photos of the show.

Despite the youth of the company–which I initially assumed meant the artists were also young–age and inexperience don’t seem to play a meaningful role here. Hammerly, for instance, has professional credits going back to the mid-1990s. As a correspondent of ours in D.C., a theater artist who knows some of the members of the company, told us in an email: “They’ve been around long enough both as a company and as individual theater artists to know better (and, more importantly, to act better).”

Image prepared by Kenneth Collins

Even if the appropriation crosses lines of professional ethics, it’s unclear whether Temporary Distortion would have recourse to further action. NY Times critic Jason Zinoman, discussing this issue on Twitter, linked to a 1999 article on a settlement between a theater in Caldwell, Florida, and Broadway director Joe Mantello. The settlement, seen as an important precedent at the time, made clear that the theater had violated intellectual property rights by making use of distinctive elements of Mantello’s staging of the Broadway version of Love! Valour! Compassion! in its own regional production. But of course that case involved the imitation of design elements of a different production of the same play. From a critical and artistic standpoint, it’s clear that Temporary Distortion’s artistic practice is predicated on the development of unique theatrical presentations–such that the design is as distinctive of their work as a script is a playwright’s. But it remains an open question whether the law would judge it as such, or continue to favor a text as a more defensible form of intellectual property than staging and design.

Whatever the case, given the nature of contemporary performance’s funding structures, appropriation like this raises special concerns. A company like Factory 449 doesn’t rely on touring and multiple commissioning agents to create new work; the use of such design elements by other companies self-evidently devalues the original, threatening the sorts of touring opportunities and multiple presentations that companies like Temporary Distortion rely on to make the long development periods such shows require sustainable. What chance would a company like Temporary Distortion have to tour Americana Kamikaze to D.C. when the design–as used by someone else–has already been long-listed for a Helen Hayes Award (half a marketing gimmick and half serious, I understand, the judges designate shows as “Recommended” during their runs over the year) and been praised widely in the local press?

It’s only recently that Temporary Distortion has had the money to rent an actual development space to create their work, with their most recent piece Newyorkland. The very claustrophobic quality that Factory 449 so responded to in Kamikaze was owed at least in part to the fact that previously, Collins and collaborator William Cusick had built the sets to fit in Collins’ living room, where their unique combination of performance style, set structure, and video integration was developed over the course of nearly a decade.

As Collins put it to us in an email: “What is shocking to me…and what makes this show seem so blatantly a theft of what has become the signature style of Temporary Distortion’s work, is the fact that the aesthetic seems to suddenly appear fully formed in The Ice Child. The boxes, the use of video, the acting style and staging. These are all things that have developed on independent tracks in Temporary Distortion’s work since 2002, leading up to the look, feel and presentation of Americana Kamikaze in 2009. With no such discernible evolution of these techniques in their own work…suddenly everything appears fully formed in this production.”

Rick Hammerly of Factory 449 forwarded us the below official statement from the collective on the matter. We reprint it here in full. He also provided photos documenting previous Factory 449 shows demonstrating their previous use of direct address and video.

Factory 449 has enormous respect for Temporary Distortion, and we are surprised and disheartened to see them react so negatively to our show.  We wish we could have hosted them here in DC to see The Ice Child before it closed, to improve upon the distanced and limited context under which they’ve judged our production.

The two productions are very different.  We set out to tell a very specific, linear narrative, wholly of our own devising and written collaboratively by Factory 449.

The Ice Child took its inspiration from many sources, and while the staging was partially inspired by Temporary Distortion’s 2009 production of Americana Kamikaze, we place equal if not greater weight on the story, tone, style, and acting components.  For these we were inspired by the writings of Edgar Allan Poe and Ambrose Bierce, television shows such as Criminal Minds, and from the filming conventions of horror films in general.

We admire Americana Kamikaze, but The Ice Child lives, speaks, and breathes completely differently.  In addition to a completely different narrative, the sound and video elements in The Ice Child were birthed from the text and were in no way influenced by Americana Kamikaze.  Over the years we have employed major video elements, including large video screens, as well as this style of direct-address, in numerous productions.  And while our staging was partially inspired by Temporary Distortion’s production, it was also an extension of multi-media presentation concepts that Factory 449 has been pursuing since our inception in 2009.

If Temporary Distortion deems these factors irrelevant, we feel they overlook a fundamental aspect of creative inspiration.  Artists are constantly inspired by each other’s work, and it would be naive or dishonest to say otherwise.

As the great writer Montaigne wrote, “The bees pillage the flowers here and there but they make honey of them which is all their own.”

Surely Temporary Distortion understands that theatre is more than a set of photographs.  We can only hope that they will grow to find artistic gratification in that their work is inspiring the work of fellow theater artists around the country.

– The Members of Factory 449: a theatre collective