Photo: Penguin Publishing Group

You have to give Edward Albee credit: Fifty-five years after its Broadway debut, and less than a year after its author’s death, Who’s Afraid of Virginia Woolf? has once again become the most controversial play of the season, thanks to a production nobody will ever see. The 35-seat Shoebox Theater in Portland, Oregon, doesn’t feel like the natural epicenter of a flare-up involving artists’ rights, race, and intellectual property. But earlier this month, when the Albee estate denied producer Michael Streeter the rights to Woolf over his decision to cast a black actor, Streeter, “furious and dumbfounded,” took to Facebook, arguing that “the Edward Albee estate needs to join the 21st century.”

I agree, but first, a brief recap of the 20th may be in order. When I reposted Streeter’s comments on Twitter, the reaction from many people was, “They can’t do this, can they?” Yes, they can, and the reasons are rooted in copyright law. Unlike screenwriters or television writers, playwrights own their plays and can dictate the terms under which rights to them are leased to producers. That ownership is one of the things that makes theater special; it’s the only collaborative scripted medium in which writers aren’t on the bottom rung, a principle worth honoring and protecting. Writers are every bit as capable as producers or directors of making terrible decisions; at least in theater, they get the chance to make them.

Virginia Woolf takes place throughout one night in the campus home of George and Martha, a professor and his wife, during which they rip apart themselves, each other, and their younger guests Nick — the character at issue here — and his wife Honey. For many, it’s an adaptable play about marriage, intimacy, cruelty, and self-deception, brimming with indications that it’s up to more than simple mid-century naturalism. Albee himself once described it as a portrait of two intelligent people colluding on the creation of a symbol, and said plainly that he had built his play upon an “unnaturalistic base.” (I mean, it’s America, and the father and mother are named George and Martha, and their “baby” isn’t real. Need I go on?)

But as time passed, Albee came to view his own work as a piece of social realism firmly rooted in 1962. Perhaps because when it first opened, Woolf was the subject of some glib and homophobic assertions that a gay playwright had written an encoded drama about a homosexual sham marriage, Albee’s insistence that the play was exactly and only what it purported to be eventually stiffened into a kind of dogmatism — and into prickliness about casting. An African-American Nick was impossible, because an interracial marriage, he contended, would surely have sparked commentary from George or Martha, and also because the play contains a couple of baiting references to Nick’s golden-boy Aryan qualities. (Theoretically, depending on the direction and performances, those lines, aimed at a black actor, might play as just another savage and destabilizing attempt on George’s part to “get the guests.” Or a director might choose not to call attention to them at all. Either way, they’re hardly enough to threaten the comprehensibility of the play, any more than the 1966 movie was made confusing because George Segal, an actor of Jewish heritage, played Nick, a Welsh actor played George, and a 33-year-old actress played 52-year-old Martha.)

Albee did not, it’s important to note, have a blanket rule against casting non-white actors in his plays (Sophie Okonedo is currently starring in a London production of his 2002 The Goat, or Who Is Sylvia? in a role played by white actresses on Broadway). But regarding Nick, he stood firm. The part would not be open to non-white actors during his lifetime or after his death.

And death is, I’d argue, the point at which this aspect of copyright law should cede to a greater social and artistic good. A playwright’s copyright should certainly prevent directors from making unauthorized cuts or changes to the text or stage directions. And playwrights who insist on casting approval — not all do — should have it for as long as they’re alive to exercise it. But after they’re gone, should their idiosyncratic casting preferences really be treated as part of copyright-protected text? In the character list that precedes Woolf, Nick is described as “28 … Blond, well put-together, good-looking.” In dialogue, it’s suggested that he weighs between 185 and 190 pounds. Are Nick’s weight and hair color always honored in casting, and if they are not, what argument can an estate make that certain physical attributes the playwright specified are negotiable, but race is not?

Down the road, perhaps a judge will have to decide what happens when the rights of a property holder collide with laws protecting equal employment opportunities. But maybe it isn’t too much to hope that this could be adjudicated by common sense and broadmindedness rather than in a courtroom. Color-blind casting (casting a part without regard to an actor’s race) and color-conscious casting (casting a part with an actor of a different race in order to make a point or shed new light on a character or text) are not new approaches. Sometimes those choices work and sometimes they don’t, but they’re an essential part of keeping a theatrical repertory —especially an American theatrical repertory — vital. Charles S. Dutton has played Willy Loman in Arthur Miller’s Death of a Salesman; James Earl Jones was Big Daddy — the greatest I’ve seen —in Tennessee Williams’s Cat on a Hot Tin Roof; and Audra McDonald won her first Tony Award in a 1994 revival of Carousel, playing a role originated by a white actress 49 years earlier. Some theatergoers can’t see past race, some can see past race, some see race but find it a fascinating prism through which to discover new aspects of a text they thought they knew, which is one of the reasons we go to revivals in the first place. It’s the same reason that Londoners recently flocked to see Glenda Jackson play King Lear and New Yorkers can now watch Elizabeth Marvel play Marc Antony at the Delacorte. To foreclose on any of those possibilities — to decide preemptively that an African-American Nick could illuminate nothing for anyone and would, in fact, risk shattering the spell cast by Woolf — is to fail to trust the work and its potential audience in a way that ultimately threatens its longevity.

What would Albee himself make of all this? Might a playwright who once stipulated that his work could not be licensed to segregated theaters approach the topic of nontraditional casting with fresh eyes today — or ten years hence? We have no idea, and therein lies the problem. Though he once referred to himself as a “control freak,” I’m quite sure he wasn’t available to consult on this latest decision. Since copyrights survive their authors, decisions about Albee’s plays are now in the hands of an estate, the job of which is to honor the author’s intent while making decisions on how best to preserve the value and integrity of the work itself. Many estates are loose-reined about casting, but Albee’s, so far, is adhering to the artistic equivalent of right-wing constitutional originalism. (The estate is known to have required headshots of actors before licensing a production, which is presumably why the Signature Theatre’s upcoming staging of Albee’s Homelife and The Zoo Story, scheduled for next January, is still listed on the theater’s website as “rights pending.”)

Even the phrase “posthumous casting approval” reveals the idea’s absurdity— in practical terms, there can be no such thing, and in any case, as Albee himself said dryly toward the end of his life, “I’m not going to care much” about what happens after he dies.

So perhaps that one protection deserves to fall by the wayside. While an author lives, that author’s word should be decisive; nobody would want to see playwright Katori Hall lose her standing to insist, as she did in 2015, that a white actor cannot play Dr. Martin Luther King, Jr. in her play The Mountaintop. But the slippery-slope argument — that the eradication of casting approval would lead to, say, all-white productions of Porgy and Bess and A Raisin in the Sun — seems fatuous to me. The answer is, yes, it probably would at some point, but these things are not mirror images. A black Virginia Woolf broadens opportunities for minority actors; a white Fences narrows them. There is no point in pretending that theater currently lives on a level playing field, or that an estate’s iron fist regarding casting helps level it. If someone decides to try a white production of an August Wilson play, which I think is a horrific idea, it will get the reception it deserves, whatever that is.

Albee’s position on casting was a product of its time — and subject to his own occasional exceptions. On at least one occasion, he appears to have permitted a black actress play Martha. But in the hands of his estate, what was fluid becomes rigid; desire becomes fiat. Because Albee copyrighted a slight revision of the play in 2005, under current law, the estate will have the right to bar a black man from playing Nick 20, even 50 years from now — in fact, until 2086, when the play will be 124 years old. That means black actors whose parents are yet unborn could be denied this opportunity. Over those decades, how many theaters will decide that, rather than have their choices second-guessed by an intellectual-property custodian glancing at a headshot, they’ll just move on to a different playwright?

It is the job of the Albee estate to protect his property. But barring an African-American actor from playing Nick inevitably leads to the question: Protect it from what? Misinterpretation? Changing times and mores? The future? It’s hard to imagine a playwright’s work long surviving him if it’s shackled to the unexamined enforcement of questionable decisions from another era, or constrained by the terror that it might be mishandled. Who’s afraid of a new idea? Nobody who truly believes in their work, or wants it to last.

A version of this article appears in the May 29, 2017, issue of New York Magazine.