Arts Desk

Design Within Reach: Did a Local Theater Troupe Rip Off Its Set?

New York troupe Temporary Distortion, which assembled this image, claims D.C.'s Factory 449 improperly copied its set design.

Kenneth Collins, the artistic director of New York theater group Temporary Distortion, wrote and directed a play called Americana Kamikaze that had its fully staged premiere in 2009. Over the next two years, the troupe mounted the video-heavy work at festivals in France, Australia, the Czech Republic, Seattle, and elsewhere.

But in 2012, to hear Collins tell it, Americana Kamikaze has made yet another appearance: Washington, D.C. In recent weeks, Collins has claimed that Factory 449, a local experimental troupe that earned a statue for emerging theater company at the 2011 Helen Hayes Awards, replicated elements of American Kamikaze in its recent production of The Ice Child at downtown arts space Flashpoint.

After friends in D.C. sent him pictures of The Ice Child, Collins felt the play looked too much like Americana Kamikaze for it to be a coincidence. “When I first saw the photographs and sent them a message on Facebook, I was honestly confused,” says Collins, who did not attend a performance of The Ice Child. “I hadn’t read the description of the show yet so I was just going off the image. I was confused and wanted to know more.” Collins says he never heard back from Factory 449.

Americana Kamikaze deals with themes of Japanese horror and ghost stories, while The Ice Child involves a woman who has been kidnapped and locked in a freezer (the Post gave The Ice Child a mixed review in May). Collins’ grievance centers on the two plays’ lighting and set designs. Both Americana Kamikaze and The Ice Child place their actors in vertically shaped boxes and have them directly address the audience. In both plays, video plays on a screen mounted between the actors. To Collins, inventive sets and design are a major part of Temporary Distortion’s appeal. “We work really hard as a company,” he says. “We spend a lot of time on coming up with unique and original ways to show our work and for someone to take a shortcut and replicate that, you know, it’s unethical, it’s unfair.”

Rick Hammerly, the producing artistic director of Factory 449 and one of three writers of The Ice Child, says he first came across Americana Kamikaze through a review and then watched video of it online. “It’s out there. I saw something that was out there and I drew from that,” he says, acknowledging Americana Kamikaze as an influence—but one of several. “If you have an original story and text, and you pull out inspiration to provide other elements to fill out that text, you make those elements new again. I think that’s how the arts work.” Although The Ice Child has a credited lighting designer, it doesn't have a set designer.

In a statement, which first appeared at the bottom of a June 6 article on Culturebot about the controversy, Hammerly defended The Ice Child:

The Ice Child took its inspiration from many sources, and while the staging was partially inspired by Temporary Distortion’s 2009 production of Americana Kamikaze, we place equal if not greater weight on the story, tone, style, and acting components.  For these we were inspired by the writings of Edgar Allan Poe and Ambrose Bierce, television shows such as Criminal Minds, and from the filming conventions of horror films in general.”

Near the end of the statement, Hammerly adds, “If Temporary Distortion deems these factors irrelevant, we feel they overlook a fundamental aspect of creative inspiration. Artists are constantly inspired by each other's work, and it would be naive or dishonest to say otherwise.”

Asked to respond to Factory 449’s defense, Collins says, “Not only is that statement insulting, it is also a misdirection of what took place in this piece. Work wasn’t inspired by our work. Work was copied from our work.” To drive the point home, Collins assembled an image the shows the set designs of The Ice Child and Americana Kamikaze side by side (see above). You can see more pictures from Americana Kamikaze and The Ice Child here and here.

I showed the graphic to Rebecca Tushnet, a Georgetown University law professor who specializes in intellectual property. She explains that in order for one theater group to claim that another has copied its set design—and that the theft is legally actionable—their argument would require a lot more than a pair of images. “You want to know what kind of alternative staging has there been. Have other people done things like this? If it’s basically a neat idea, that doesn’t necessarily [mean] it’s wrong. People copy basic ideas all the time,” Tushnet says. “It’s a case-by-case determination influenced by a lot of others things. What counts as an idea, or a trope that people should be free to appropriate?”

Hammerly says he learned about the controversy around the end of The Ice Child’s run. “If I felt we were slighting someone, we wouldn’t do that," Hammerly says. "And that’s why the timing is bad. And if this happened in the first week, I would have done something about it” says Hammerly. There was no one individual who was the production designer for The Ice Child.

Collins says he isn’t yet sure whether he will take legal action against Factory 449. “I think a public apology would be in order,” he says. “I think that someone of Rick’s experience that’s been part of the D.C. theater community as long as he has apparently should have known better than to do what he did on this show. I think he does know better and now is attempting to put a certain amount of spin on his actions. I think the more honorable thing to do is to have some integrity about it after the fact and to apologize for stealing the design work and admit what he has done to his audience and to the people who support his work in D.C. And that’s not what happened. What has happened is him throwing his hands in the air, 'I can’t believe you’re upset about this ‘cause everyone steals from everyone.'"

As for Hammerly, he says, “We want to move on. This is one project for us and we want to move onto our next piece.”

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