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Exemptions for Some, Miniature American Flags for Others:An Analysis of the Playwrights Licensing Antitrust Initiative Act of 2005
V
OLUNTARY
T
RADE
R
EPORTS
N
O
. 8 J
ANUARY
2006Introduction
Rep. Howard Coble (R-North Carolina) and three other members of the House ofRepresentatives
1
have introduced legislation that would exempt playwrights from theantitrust laws when developing a standard contract for use by individual playwrights andtheater producers. H.R. 532, the “Playwrights Licensing Antitrust Initiative Act of 2005,”(also called the PLAI Act) would protect the First Amendment rights of playwrights toengage in voluntary speech and association free of potential antitrust claims for illegal “price-fixing.”
2
The Dramatists Guild of America and a number of prominent playwrights haveadvocated such legislation to combat what they consider an unequal playing field whennegotiating with producers. This report will examine the arguments for and against H.R. 532and consider the broader issue of industry-specific antitrust exemptions.H.R. 532 would exempt from the antitrust laws “any joint discussion, consideration,review, action, or agreement for the express purpose of, and limited to, the development of astandard form of contact” between playwrights
3
and producers
4
. The bill allows playwrightsto collectively adopt a standard contract, subject to amendment by individual playwrightsand producers consistent with the contract’s terms.
1 John Conyers (D-New York), Henry Hyde (R-Illinois), and Barney Frank (D-Massachusetts).2 The full text of H.R. 532 is reproduced in the appendix to this report.3 A“playwright” is defined by H.R. 532 as an “author, composer, or lyricist of a dramatic or musical workintended to be performed on the speaking stage and shall include, where appropriate, the adapter of a workfrom another medium.”4 A“producer” is defined as a person who holds the rights to present a stage play, including “any person whopresents a play as first class performances in major cities, as well as those who present plays in regional andnot-for-profit theaters.”
Voluntary Trade Reports ( 
ISSN applied for), number 8, is published twice per month by Citizens for VoluntaryTrade d/b/a The Voluntary Trade Council, Post Office Box 100073, Arlington, VA22210. S.M. Oliva, editor.
©2006 by The Voluntary Trade Council. All rights reserved. This publication may be freely copied anddistributed, with attribution to the Voluntary Trade Council as author, for non-commercial purposes. Forcommercial reprint permission, contact the Voluntary Trade Council at (703) 740-8309 orinfo@voluntarytrade.org. Visit the Voluntary Trade Council’s website at www.voluntarytrade.org.
 
Voluntary Trade Reports No. 8
 Justifications and Legislative Intent
Rep. Coble introduced H.R. 532 on February 2, 2005. The bill was immediatelyreferred to the House Judiciary Committee. Neither Coble nor any of his co-sponsors havemade any official statements about the bill. During the preceding 108
th
Congress, Cobleand his co-sponsors introduced identical legislation, H.R. 4615, but again no formalstatement was made. H.R. 4615 was also referred to the House Judiciary Committee,which took no subsequent action. There was, however, a record of Senate action duringthe 108
th
Congress on another identical proposal, S. 2349. That bill was introduced bySenators Orrin Hatch (R-Utah) and Edward M. Kennedy (D-Massachusetts) and received ahearing before the Senate Judiciary Committee onApril 28, 2004. No further action wastaken following the hearing.
5
Upon introducing S. 2349, Sen. Hatch said the primary intent of the legislation was toallow playwrights to operate on a level playing field with other segments of the theaterindustry:This legislation is designed to ensure the continued vitality ofAmericantheater. When the theater is crowded and the curtain rises, it is easy to forgetthat the entire show began with one person: the lone playwright who putpen to paper. While this artistic independence--and the individual expressionit fosters--are absolutely central to the continuing vitality of quality livetheater inAmerica, it has resulted in individual playwrights beingincreasingly forced into a situation where they bargain alone againstcorporate behemoths and organized labor groups over terms ofcompensation and artistic control when their works are performed onBroadway.Due to the interaction of Federal labor law, the antitrust laws, and theCopyright Act, playwrights and their voluntary peer membershiporganization, the Dramatists Guild ofAmerica, operate under the shadow ofpossible antitrust litigation, which has substantially and detrimentallydecreased their ability to coordinate their actions in protecting their artisticand financial interests. This has impeded the ability of playwrights to actcollectively in dealing with highly-organized and unionized groups--such asactors, directors, and choreographers on the one hand--and the increasinglyconsolidated producers and investors on the other.
6
5 Identical legislation was also introduced in both the House and Senate during the 107
th
Congress.6 150 Cong. Rec. S4377-4378 (April 26, 2004) (statement of Sen. Hatch).
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Voluntary Trade Reports No. 8
At the April 2004 hearing on S. 2349, several notable playwrights testified in supportof an antitrust exemption. The now-deceasedArthur Miller told the Senate JudiciaryCommittee that the “national interest” in protecting the theater justified the bill's passage:TheAmerican theater has undergone enormous changes over the years.From its entrepreneurial start it has become increasingly dominated bycorporate interests. Sure, business is changing in virtually every sector of oureconomy and there is no reason that the theater should be immune frombusiness pressures.But, unfortunately, in the midst of these increasing pressures, only one entitydoes not have a seat at the bargaining table: the playwrights. The status ofthe playwright is difficult to discern as it has fallen under the long shadow ofquestionable and conflicting legal opinions. The result is that all otherentities have the collective power and ability to fight for their rights. As aresult, it is the playwright who gets squeezed.The Playwrights Licensing Antitrust Initiative Act of 2004 would provide avery limited legislative fix that would allow for the standard form contractthat was last negotiated in 1982 to be updated to take account of today’smarket realities and intellectual property protection climate. It does not forceproducers to hire any playwrights, but it does allow playwrights with awilling producer to protect their economic and artistic interests.Today many new playwrights are presented with take-it-or-leave-it contracts.In their hunger to get their plays produced, many have no choice. Others,facing the economic pressures that face all-too-many people in today’seconomy, are abandoning their dreams of writing for the theater as they goto Hollywood or write for other media.
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Playwright Wendy Wasserstein
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emphasized that playwrights faced increasingpressure from producers to compromise the artistic integrity of their works:Think of what would have been the impact to Arthur Miller’s “Death Of ASalesman” if the producers had demanded that he change the end of the playto have a happy ending. Imagine, for the sake of selling tickets, if Eugene
7
S. 2439: The Playwrights Licensing Antitrust Initiative Act: Safeguarding the Future of the American LiveTheater, Hearing Before the S. Judiciary Comm.
, 108
th
Cong. 49 (2004) [hereinafter
Hearing
] (preparedtestimony of Arthur Miller, Playwright).8 Ms. Wasserstein sadly died on the day this paper was scheduled for publication.
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