Erin Pike and That'swhatshesaid Went on Despite Cease and Desist Order, Legal Ramifications Remain Uncertain

"Cease and desist" is what he said. Tim Summers

On Friday night the executive director of licensing and compliance for drama publishing titans Samuel French sent Gay City Arts executive director Fred Swanson a cease and desist order. The order called for the immediate closure of That'swhatshesaid, which had opened the night before in Gay City's little theater, Calamus Auditorium, and which was due to hit the boards in two hours.

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As I noted in my review, That'swhatshesaid is a collage of female dialogue selected from the plays in American Theater's list of the "Top 10 Most-Produced Plays of the 2014–15 Season." The cease and desist letter claimed that the show's use of copyrighted material from Bad Jews, one of the four Samuel French properties on that list, was actionable.

In addition to sending the letter, Bruce Lazarus, executive director/vice president for Samuel French, called That'swhatshesaid creator and sole performer, Erin Pike, and left a voicemail on her cell phone. In the message he claimed the production was "illegal" and said that Samuel French would "go after" Gay City Arts if the show went on as planned.

In case you were wondering what it sounds like when the world's biggest theatrical publishing house insists that your show must not go on, the voicemail is embedded below:

Pike told me shortly before curtain on Friday that she replied to the e-mail from Samuel French, saying she would present the show but with all of the lines from Bad Jews redacted. HATLO, the director for That'swhatshesaid, said later that they redacted the lines because they wanted to ensure Gay City wouldn't be pursued. "In that pressure cooker bit of time, that was our biggest concern. Gay City didn't want to do the show because they'd been threatened," she said. "But people had already bought tickets. I wanted people to see the show. And the text from Bad Jews is only in the first 20 mins of the show anyway— it's not the whole point of the script."

I had seen a preview for the show on Wednesday and wrote about what I saw Friday morning. The show I saw Friday night felt very different.

That evening, 50 people crammed into Gay City's cramped and creaky auditorium. The small room was at capacity. The audience was murmuring and negotiating elbow room until suddenly through the speakers overhead a man's voice cut through the darkness and identified itself as Bruce Lazarus.

They were playing the voicemail he'd left on Pike's phone, the one that said the production we were all about to see was "illegal," and that Samuel French would "go after [their] presenter" if they went ahead with it. After the voicemail, silence filled the room. Then the sound of pages flipping. Then Pike appeared onstage. The spotlight hit her and she held her hands up to block her eyes from the intensity of the light. Then the light cuts out. Then the narrator voiced the first line of the play: “She enters.” She entered. The audience lost their shit.

The show went on. Whenever a line from Bad Jews came up, someone offstage would shout "redacted!" and Pike would go ahead miming the stage directions but not speaking the accompanying lines. The redactions led to moments of drama that hadn't existed before this external pressure from Samuel French.

For instance, after a very long “redacted” moment, Pike climbed up on a box at centerstage and shouted the following lines from John Patrick Shanley's Outside Mullingar: "What have we done?! What have we done? You should thank Christ for a good neighbor! For me! You pushed me down, that’s why! You shoved me down and left me crying in the yellow grass. You shoved me like I was nothing. I remember. You have no idea what you’re up against. You might as well try to stop the calendar from naming the days.” Rather than being directed at an abstraction or some invisible man, those lines seemed directed at the forces that would seek to shut down her play.

After the show, Pike said the cease and desist order was more of an annoyance than anything else. "The show was great," she said, "We were thrown this hurdle and we jumped it." She told me the show had already sold out before Samuel French issued the order, and that the order brought "a strange mix of energy—some positive and rebellious, but some negative." She'd worked on the piece for over two years, and she didn't want the controversy to overcome the amount of work she'd already done.

I got ahold of Lazarus by phone this weekend and asked him how he found out about That'swhatshesaid. Despite the fact that the play ran in Minneapolis at Open Eye Figure Theatre in August of 2015 and was reviewed by Matthew A. Everett in the Twin Cities Daily Planet, Lazarus claims he first heard about the play two hours before Samuel French sent the cease and desist order. He told me that Joshua Harmon's agent sent Lazarus an e-mail containing a link to my review of the show (whoops!) and encouraged him to investigate the situation.

Lazarus claimed that Pike, HATLO, and playwright Courtney Meaker appeared to be violating copyright laws, and therefore Samuel French wanted to make sure Harmon's rights were being protected. "We heard about it, we acted," he said.

He says he “very rarely” sends cease and desist orders in cases of “mix-up” or “mash-up” plays, but that sending those orders is part of his job.

"This is potentially taking revenue or rights away from the author," Lazarus said. "We are here to defend the author, who happens to be a man who makes a living from the work he does. When someone takes his work, then he’s denied his livelihood."

From his initial reading of my review, Lazarus claimed he didn’t know That'swhatshesaid used other properties owned by Samuel French, which include The Whipping Man by Matthew Lopez; 4,000 Miles by Amy Herzog; and Tribes by Nina Raine.

I told him that in my review I described the work as a parody and a collage that draws from several plays, and asked if he considered the play fair use.

“That’s your interpretation. Because you call it a parody doesn’t make it so," he said. Then he added, "Fair use is a defense, and if proved it’s perfectly fine and within the law. But it’s a judge's determination as to whether [That'swhatshesaid] constitutes fair use. Not having seen it, not having read it, I couldn’t tell you if it was fair use or not."

When asked whether he'll act on his claim to "go after" Gay City Arts knowing that That'swhatshesaid ran with lines from Bad Jews redacted, Lazarus said it was up to Harmon and all the other authors "whose rights are potentially being infringed" to decide whether they want to pursue legal action.

I posited this story as a David and Goliath situation. Here you have a big publisher coming down on a tiny theater presenting a self-produced play. Did he consider the fact that the artists might not have enough money to retain a lawyer? "For all I know, the author of this play has the wherewithal and the resources to hire an attorney to do this play," he said, "And our author has the wherewithal to hire an agent to enforce his rights."

Before he got off the phone, he said he wanted to stress the following: "These are two people. She may in fact have a fair use defense. But the fact of the matter is: This is someone who spent two years of his life writing something. Building something. If [That'swhatshesaid] isn't fair use—think about it. [Harmon's] spent two years building a house and someone walks by it and says, 'Oh, I’m gonna live there. I’m gonna move in.' It’s his house. He owns it. She’s using it. He has the right to defend it. He makes his living doing this. He pays his rent from his royalties. And so to just go and take it is unfair. He’s just a man. Who writes plays. And he tries to make it a living."

HATLO voiced a different perspective. When the show ended Friday night, I asked what she thought of the cease and desist order. "Frankly, I think that it’s white male fragility," she said. "I think somebody reacted to what you wrote and—I don’t have a lot of time in my life for fragility. That's too bad that that was his reaction."