In the two years that followed the Second Circuit’s decision to remand the matter for further proceedings in the District Court, the defendants moved to strike the case. Ring successfully appealed the motion to strike and requested a trial by jury. The appeal succeeded in the Second Circuit,1 and the defendants had certiorari denied in the Supreme Court of the United States.2

The Shuberts were not only able to adapt but thrive between the early 1930s and early 1940s. Abe Erlanger passed away in 1930 and Marc Klaw in 1936. With their passing ended the last remnants of the Theatrical Syndicate established in 1896. The Shubert brothers acquired most of the remaining Syndicate properties.1 In late 1931/1932, the Shubert Organization went into receivership. By 1933, under the banner of the Select Theatres Corporation, the group repurchased the more valuable Shubert assets for a meager US$400,000 with no other bidders.2 By 1941, the Shuberts had an interest in approximately 75 percent of Broadway attractions, and 90 percent of the remainder were “compelled” to play at a Shubert theatre.3 The biographer of the Shubert brothers Jerry Stagg described this period for the impresarios as “a monopoly, in the truest sense.”4

The first renegotiated Basic Agreement after Ring in 1955 – consisting of multiple contracts – provided a preview of the issues that would occupy the industry over the next fifty years.1 George Middleton suggests by the mid-1950s commercial productions had become reliant on external “angel” funders who were not receiving timely or adequate returns on their substantial upfront investments. Production costs in 1955, according to Middleton, “were 500 percent higher than on similar plays produced between 1935–1942.”2 Thus, higher production costs meant it took longer for backers to recoup which was a disincentive to invest. In 1955, the playwrights made their first of many compromises over royalty structures as Middleton explained:

If copyright is framed as just one of the many tools used to facilitate production in the larger theatrical economy, it is also possible to envision copyright law’s development outside the prism of dramatist-centric expansion narratives. As scholars including Oren Bracha and Catherine Fisk have shown, author rhetoric lives throughout the decisions of courts in the second half of the nineteenth century.1 Developments in the law suggest a more fluid framework than one that prioritized the rights of author dramatists, however. There was broad space within the law to accommodate theatrical mediators and the industry structures they created.

This book is a historical account about the negotiation of creativity in the American theatre. It is a history of how the American theatre organized its relationships and how stakeholders, and in particular dramatists, responded to these developments. The book examines how copyright law has interacted with the American theatre in dynamic and counterintuitive ways, helping to facilitate theatrical production between authors of original copyright works and audiences. But copyright plays only a supporting role in the much larger theatrical economy. This is a history of how the industry was shaped by the evolution of mediating businesses and the practices they established which copyright has mostly accommodated. The growth in mediating businesses, and responses to these developments, has accompanied enduring uncertainties about the authority dramatists are often assumed to have over the work they create.

As Samuel French was building an empire in the United States on the back of foreign dramatists, another group of enterprising publishers established lucrative mediating businesses in alternative markets. Alexander Byers, commonly known as one of America’s most successful theatrical thieves, mediated the movement of intellectual creation between authors and audiences by developing business models outside and within formal legal frameworks for over three decades.1 Studying the ascendancy of Samuel French and his associates is instructive for understanding how mediating power over the production process was asserted through order and methodical organization. Byers’ methods of mediation are an equally compelling study of the state of nature.

In 1856, following years of agitation in the American playwriting community, previous failed attempts at legislative reform,1 and reform in Britain,2 an amendment to the United States Copyright Act provided authors or proprietors a public performance right in their original dramatic works.3 The 1856 revision was the first of several legislative movements in the second half of the nineteenth century aimed to validate the authorial ambitions of the American playwright, secure their economic interests, and encourage the expansion of American drama.

In the second half of the nineteenth and early-twentieth centuries, theatrical stakeholders controlling the movement of theatrical works between authors and audiences included transnational and local opportunistic publishers and mediating brokerage agencies. Managers also emerged that booked tours across the country in regional circuits, controlled physical property spaces, and represented attractions. These stakeholders possessed the resources, administrative structures, and networks of influence to transform the intangible right into the final material production on stage. It was an industry that prioritized the preservation of manuscripts in an unpublished form and the trading in performance rights attached to these scripts. The evolving legal framework complemented the industry structure, providing ample space for parties to negotiate the terms of production. In case-by-case negotiations, mediating stakeholders shaped the terms of engagement through ongoing negotiations rather than acts of overt belligerence.

American playbrokers – agents of playwrights – added another layer of mediation to the theatrical landscape in the second half of the nineteenth century and the first decades of the twentieth century. Recent theatre scholarship has highlighted the role that pioneering theatrical agents like Alice Kauser played in developing transatlantic business.1 Playbrokers also shaped industry bargaining and contractual standards in the United States. The brokers, like the first mediating publishers, sought control over various processes and objects in the space between the author and audience. Such objects included printed and published dramatic scripts, rehearsal prompt scripts, advanced royalty notices, and accounting processes. Further, these brokers, like French and his associates, influenced the production process by forming personal relationships of trust with other mediating stakeholders in the industry.

The story of the rise of the Theatrical Syndicate and the Shuberts as part of the larger mediating structures of the industry in the late-nineteenth and early-twentieth centuries has received extensive treatment in the theatre literature.1 In the second half of the nineteenth century, the industry became increasingly centralized in the hands of a small group of businesses that coordinated venue bookings and attractions. The decentralized stock houses across the country developed into a star touring system, which in turn developed into a combination system.2 Management of the physical theatre space and management of the attraction separated. As a touring system became a profitable model, individual theatres started to morph into local circuit groups. Theatrical organization centralized in the city centers, and the business of booking became essential to coordinate tours across the country.3