Clearly Pike and writer Courtney Meaker are critiquing the role of women in the theater. However, they are using creative works to do that, with the result being another creative work. Most articles do not mention how much of the other plays Pike and Meaker used; however, one suggested that it was small amounts, including stage directions. Finally we don't know what effect thatswhatshesaid would have on the other plays. We might imagine that this small production would have limited effect, but what if thatswhatshesaid became popular? Walking briefly through the four factors of Fair Use, Pike and Meaker's use doesn't seem to be fair, which is what the producers of the other plays thought, too.
However, what if the use is transformative? According to attorney Jeffrey Nelson of Miller Nash Graham & Dunn, who is representing the creative forces behind thatswhatshesaid, has stated (as quoted in American Theatre):
Our position is that this work does not require permission from any of the playwrights whose content was used because it does qualify as fair use. We believe that [this is transformative.] The work takes a small amount of text from each of those scripts, slices them up, reconfigures [them.]Yes, a new work with a new purpose.
I don't know how this case will continue. I hope it receives a bit more attention, since it could help us think more about what is transformational and what is not. I'm also secretly hoping that the play can continue to be performed, since it would be quite interesting to watch a play based on plays. Fair Use or not, it sounds pretty cool.
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