The best theatrical action in Paris last week was in court. At issue: how far can a playwright’s heirs go to control the use of their work? Under the spotlight, the Comédie-Française, appearing before two sets of judges over a casting decision said to have been ethnically discriminatory.

The saga began with le Français’ decision to stage its first play by Bernard-Marie Koltès, who died in 1989 aged 41 and has already achieved contemporary classic status. “Entry into the repertoire” is a permanent consecration unique to this theatrical bastion and sets off huge ripples when bestowed on a modern author. It was solemnly approved in February 2006 for Return to the Desert, Koltès’ highly topical play on personal/ national identity set against the background of the Franco-Algerian war and racist attacks in France. Rehearsals started in June last year. Interest soared in July when the director Muriel Mayette was unexpectedly appointed as the first female administrator in the theatre’s history.

Six months later François Koltès, holder of the rights to his famous brother’s works, objected to the non- Arab actor Michel Favory playing Aziz, the Algerian servant. Eyebrows shot up: Koltès had been involved at the start and had never made a formal complaint. In spite of the tension, the parties went on to sign contracts and the play duly opened in February this year – to mixed reviews, although the two lead actresses won national Molière awards. Le Monde topped its savage critique with an interview with Koltès.

“Part of the play’s meaning has been stripped away,” argued Koltès, pointing to his brother’s systematic inclusion of a black/Arab character in his plays and the fact that Aziz’s role is partly in Arabic. Mayette countered: “Nowhere does the text say the actor must be an Arab and anyway Favory’s mother is Kabyli and he speaks perfect Arabic. The text does say ‘big black parachutist’, so we’ve used a black actor. Our productions have to be performed by company members – who include a Pole, an Iranian, an Armenian. And the other Arab role [Saifi] is acted by a Kosovar and no one’s made a fuss.”

The racial dimension quickly obscured copyright questions. Debate intensified as le Français organised a public meeting on “The Koltès inheritance and mixed-race casting”. François Koltès stayed away and published a feisty communiqué entitled “Is the Comédie-Française above the law?”, which accused the “first theatre of France” and its administrator of breaking their commitments.

Nor is Mayette one to mince her words. “Of course we need more immigrant French actors but we’ll only make progress if they’re cast in any role in the repertoire. I wouldn’t hire an Algerian just to act an Algerian – it would be pure racism, terrorism
in reverse.”

Strong stuff. Verbal fireworks went off in newspapers and blogs as racial graffiti spread on the theatre’s walls. “We’re getting into a minefield; this is reverse racism!” fretted Patrice Chéreau, the celebrated Koltès director who had offended his friend by acting the black dealer’s role in In the Solitude of Cotton Fields.

Contrary opinions were equally vigorous. “Does the Comédie-Française like Arabs?” trumpeted one journalist’s blog. “I think Koltès preferred a bad black or Arab actor to a good white actor,” the former Odéon director Georges Lavaudant told Le Monde. “To change his brave message in the name of artistic freedom isn’t a political or artistic solution for the future.”

Back to the law. In April Koltès banned further performances beyond the 30 stipulated in the contract, which meant cancelling four shows, no revival next season and no tour. The theatre sued for breach of contract and for defamation. Koltès counter-attacked that rights over his brother’s works had been infringed. Judgment was delivered in the contract dispute on Wednesday, as the defamation trial unfolded in a packed Palais de Justice.

The contract case turned on how many performances the parties had agreed and whether the theatre had complied with the author’s indications on number of actors, race and sex. Cue arguments over that thorny French concept of droit moral, which has no equivalent in Anglo-Saxon copyright law and is distinct from 70-year copyright powers under droit patrimonial. Droit moral, dating back to 1791 and formalised by a 1957 law, enables an heir to ban a work if they consider its integrity and the author’s intentions have been compromised. There is no limitation period. These rights last for ever.

It is hardly surprising that bitter conflicts over the “tragedy of copyright” are familiar fodder, with Beckett, Céline and Claudel among the most fiercely guarded sanctuaries. A 1980 controversy saw Daniel Mesguich’s production of Tête d’Or banned by Claudel’s heirs after just one performance – with the support of 400 authors, not least Jean-Paul Sartre. The authors’ manifesto wound up: “A country’s level of civilisation should be measured by the protection it gives to the free exercise of rights by its creators.” France’s Professional Directors’ Association sees it rather differently, expressing concern in the Koltès affair about future abuse if the holders of droit moral rights get involved in directing and casting decisions.

Judgment time. A resounding defeat for Koltès. The court ruled that the contract was for a “minimum” of 30 performances and awarded €20,000 damages and €10,000 costs to le Français. It held that the play did not specify that the actor must be an Arab, Bernard-Marie Koltès’ writings did not “systematically” require such casting and by casting an actor who spoke Arabic, the theatre had in no way abused François Koltès’ droit moral. Koltès looks set to appeal.

The defamation trial now kicks off. Did Koltès’ remarks indeed damage
the reputation of Mayette and her institution? The judges elegantly questioned witnesses from theatre’s premier league. Why did things go so wrong? Don’t contemporary writers need beefier protection than veterans like Molière? A journalist described a “strange climate” and hinted at troublemaking by rivals hostile to the
production. Yet there was none of the usual courtroom cut and thrust. These are artists who have known each other for years and respect each other. Starring in a legal drama is their worst nightmare.

September 12 is fixed for the defamation judgment. I emerged from the court to find a freshly published article by several directors entitled “Respect Koltès: his brother is the faithful depositary of his conception of theatre”.

Great soap opera, but I wonder when and where the production will return: to the courtroom or to the stage?

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