Reading list: Derek Miller, Performative Performances: A History and Theory of the “Copyright Performance,” 64 Theatre Journal 161 (2012). Miller offers an account of an episode in 19th century British copyright law when, it was generally accepted, some sort of public performance in England was required before public performance in America (often the larger and more attractive market) in order to preserve English public performance rights. Among other things, this story confirmed that people have been misunderstanding copyright law’s requirements for as long as there have been any—the “mail it to yourself” strategy is one in a long line, not a weird outlier. Some playwrights used “copyright performances” to signal that they were worthy—after all, if they needed to engage in this formality, then their works must be valuable.
Legally, playwrights were actually in a better position than novelists in terms of securing foreign rights—but they felt very ill treated. Miller suggests that the physicality of theatre, and the reality that many productions are tweaked right until they open, made the requirement to perform in England, then hurry across the ocean to perform the “real” version in America particularly onerous. “Copyright performances,” he explains, were often travesties from a standard perspective—missing rehearsal, scenery, dialogue, or even whole acts. The “legally performative” works that secured copyright protection were not “theatrical” performances in the conventional sense—they worked to secure status, not to entertain audiences. More speculatively, Miller posits that the minimalism and anti-theatricality of copyright performances provided one input into the development of new forms of performance that challenged or rejected conventional norms about production values, acceptable acting, etc.