Immersive Theater and Intellectual Property

Photo by Will O’Hare

We had already been rehearsing for 6 months without having seen a contract.  Our preview period was to begin in less than three weeks, design was beginning to be incorporated, and everyone was very, very busy.  This show was shaping up to be the first episode in a hopefully long-term episodic immersive series.  Think of a Netflix show but for an intimate audience and full of dance moves.  The collaborators, myself included, were all veterans of other immersive shows, and at our initial meeting of minds back in August of the past year, the director (who also served as producer) began a conversation about how this project would right some of the wrongs that have become commonplace in the employer/employee relationship with respect to crediting performers who are instrumental in creating the show and writing their roles.  There was optimism in the air as we began this process, and this perceived respect as a creative collaborator was certainly felt amongst the performers.

I’ve been working in immersive theater for the past 4 years.  I’ve been acting and performing in New York for the past 15 years, mostly downtown, and the shows I’ve worked on never necessitated me to join Actors Equity, the theater actor’s union.  Perhaps I was always drawn to weird experimental performance, or was more interested in developing deep ties with fellow theater actors, playwrights, and directors as we came up in the industry.  The opportunity and desire to join the commercial theater world (and the inevitable Equity membership along with it) never really materialized for me.

The first large-scale immersive production in which I was cast was terribly exciting.  I had just turned 31, and for the first time in my life, I was a paid, working performer.  Hallelujah!  Performing was finally my job, and in a field where the applicants far outweigh the positions available, I understood how lucky I was to be actually working in my field.  The show was non-union, but paid me a decent weekly rate.

As a part of this job, and the other jobs that would follow, I was tasked with writing and creating one-on-one experiences; intimate bits of performance that would be incorporated into the overall piece.  My rehearsal time was dedicated to this script work, in addition to creating choreography and other stage business.  I performed this job willingly and enthusiastically, and to this day I remain incredibly proud of the work I made for that show.

When my contract period for that job ended, I learned that the scenes I had written were now property of the show; property of the producer, and that perhaps another actor would perform these scenes in my stead.  Perusing the contract I quickly and eagerly signed when first offered, I saw that I did bequeath to my employer all work I created for the show.

The show no longer runs in New York, but has been licensed to open in Shanghai, Beijing, and Tokyo, and my understanding is that none of the original performer/contributors, or the original directing/design team will see future compensation.

Coming from a background in theater, I have come to understand that the final product of a show cannot be owned by any single person.  All of the collaborative artists own a piece of the production, even if the pieces are inseparable from the whole.  The script, however, is something different.  It can be separated from the work as a whole, and copyright laws exist to protect the playwright from her words being used without credit or compensation.  In traditional theatrical productions, this notion isn’t questioned.  In immersive theater, apparently, the rules begin to bend.

The second large-scale production in which I was cast offered a contract that was more of the same.  I signed without much pause – I needed the work.  For this show my writing contributions were even more significant, and as we rehearsed, there were frequent opportunities to create scenes, write dialogue, and suggest choreography, a lot of which made it into the final production.  One of the directors, after a long day of rehearsing and rewrites, pulled me aside and expressed his gratitude for all the work I had done on the script.  He said the production would be giving me an additional writing credit for my contributions.  When the show finally opened, the promised credit was absent from the website and playbill.  I emailed the director to ask if this credit perhaps existed in some other way, and never got a straight response as to why this promise was rescinded.   A broader credit of “created in collaboration with” was given to all of the originating performers.

As rehearsals began for this third immersive project, the episodic piece, I wasn’t terribly alarmed when contracts were slow to materialize.  The scope and scale of this show was much smaller than the first two productions I was in.  The director, herself a veteran performer/creator of a long-running immersive hit, was wearing many hats, and I assumed the contracts, when we received them, would reflect the sentiment expressed at our first meeting back in August.

And so, for six months, the three performers (myself one of them) and director devised and created the show. When we came into the performance space last August, we had the vaguest of premises.  We performers were tasked with writing assignments, and with each rehearsal we began to construct the girders of the framework of the show.

The process of creation is always meandering, and with four collaborators in the room, our four voices threw idea after idea into the pile, characters, plot points, relationships, back story.  We picked up scraps of ideas discarded rehearsals ago to remold and reshape our story, and it quickly became impossible to determine how we got to the next step, and who, if any single person, was responsible for that leap of creation.

Ideas flowed from each of the four of us, winding, intertwining with each other, to create characters, story, plot, points of conflict, movement, and dialogue.  The very fabric of the show was a stitched together from the summation of all of our ideas.  And once again, when creating individual scenes and one on ones, I wrote the entirety of my text and dialogue.

When we finally did received the contracts, just a few weeks before the first performance, it was disappointing to see that they contained, yet again, legal language stipulating that all intellectual property was to be given entirely to the show and producer, with a waiver and release to seek any future compensation or credit should the show have any sort of life beyond the one-week preview period.

We were to be paid a one-time fee of twelve hundred dollars, which included the week of performances.

Some people might look at that number and see what I saw when I was offered my first contract for immersive work.  It is a job.  How lucky am I to be employed in a job that is also my passion?  But I couldn’t help but think of how that first show I was cast in, with options to open all across Asia, and all of the people who made that show, all of the creatives, who signed off on their work, who will likely never be compensated further.  Their work has been bought.

Given this director’s past experience as a creative performer, someone who has written and created material for one of the biggest immersive hits currently running in New York, someone who expressed to me her own frustration with the contract she once had to sign off on, now that she was on the other side of the table, it was surprising to see her passing to us something that looked disappointingly familiar.  The director and I both became entrenched in our ideas of what proper credit and valid compensation for this type of work is.  And when I challenged her terms, what I received was a staunch defense of what has become the norm in non-union immersive production: a complete surrender of authorship for a one-time paycheck.

With six days to go before our first preview, she halted any notion of negotiation, I was fired, and the production moved on with me.

Yes, getting fired never feels great.  Yes, the director was in her right to hire and fire whoever she likes.  And yes, a harsh lesson learned: always get your contracts before showing up to work.

But putting aside the circumstances of my particular dismissal, I was left with two outstanding questions: Why do directors/producers, who rely on their performers to create and develop the content of the show, place such a low value on their contributions, their intellectual property? Is this model of employment acceptable?

The answer to the first question, based on my experience, is: employers of immersive theater are able to create such one-side arrangements due to the classic cocktail of A) a large supply of willing employees, and B) the lack of jobs.  It’s a problematic and common situation that exists in many fields of employment.

The answer to the second question is: no.  I don’t think it is acceptable.  Not when we clearly see examples of proper credit and profit-sharing from across the union line: Hamilton is a recent example.

And just because a current template with worker protections does not exist in immersive theater, does not mean that one cannot exist.

Is unionizing a pipe-dream?  Are immersive performers just waiting for a single voice around whom to coalesce?

Without unionizing, what could possibly protect performer/contributors from normalizing this type of exploitation?

It takes collective action, a shared understanding of goals, and dissemination of legal language with which to arm ourselves.   Even something so basic as the following would represent a meaningful step away from normalized exploitation:

“Beyond the scope of any given rehearsal and performance process, should a production utilize any original work created by its performers for any performance or derivative work, producers and performers shall enter into a new contract providing for additional terms and compensation relating to the performer’s original work.”

The financial risks that producers take in making any sort of work should certainly be compensated.  They are the job creators, and that is not a small task to undertake.  But can’t we agree that financial success, as elusive as it may seem for any production big or small, should be reaped by all creators?

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