Last month, the American Repetory Theatre (ART) opened a controversial production of Samuel Beckett's Endgame. Using an unorthodox set design, the ART has changed the staging of the play so dramatically that Beckett threatened to sue and demanded his name be removed from the production. The two sides agreed that the play would open as planned--with Beckett's name--but also with statements by Beckett and his American publisher denouncing the ART production included in programs for the play.

For the ART, which seems to enjoy producing controversy as much as classics, the settlement was a victory. For the rest of us, the settlement is a minor defeat, weakening some important but usually unrecognized ideas about the protection of intellectual property.

Endgame is a minimalist play, calling for a Spartan amount of furnishings and a bare set. It is clearly meant to be an a historic play; nothing about the characters or the staging should imply a particular time or place. Atleast, this is how Beckett wrote it, conceived it, and copyrighted it.

The ART production uses a set depicting a deserted subway tunnel, complete with wrecked subway cars, water puddles, mud, falling dust, and general refuse. Director JoAnna Akalaitis cast Black actors in the roles and the ART filled in moments of intended silence with incidental music by Phillip Glass.

There is no doubt that Beckett had good grounds to win a lawsuit against the theatre. Under U.S. copyright law, an author of a work has the right to control adaptations, condensations, and translations of his work. Although great legal cases on the subject do not abound, federal statute explicitly gives the author of a performing work control over where, when, and, to a lesser degree, how his wore is performed. For example, Edward Albee recently forced the cancellation of an Arlington, Texas community theatre production of Who's Afraid of Virginia Woolf, because Albee opposed the theatre's plan to use an all-male cast.

Akalaitis and ART Director Robert Brustein have defended their production on the grounds that Beckett has made revisions in the staging when he produced the play himself and that Beckett has permitted other unusual stagings, such as a flooded warehouse being used as the theatre for a 1983 production of the play. Generally, the law is not on their side. Beckett can allow particular changes in his play without opening the floodgates to any changes. If Beckett thinks a flooded stage is okay as a backdrop for minimalist drama, but a ravaged T-stop is not, that is his legal prerogative. It is also a defensible artistic prerogative. Eight thousand gallons of water is, for example, an a historical, "elemental" setting in a way that a subway car identifiably belonging to a Boston subway is not

The traditional rationale for copyrights has been an instrumental one: that such protection is needed to provide people with an economic incentive to create. This justification for copyright sidesteps the more difficult issue of whether an author should "own" his writing the same way he owns his typewriter. It leaves copyright as a weak property right, an ugly stop-sister to the better accepted property interests in land and capital. By this standard, literature strikes us as something public which we have 'privatized' merely for the sake of economic incentive.

We have told ourselves that this is what copyright is about for so long that we almost believe it. When the author makes demands about the purity of his creation, he is often cast as a petty tyrant; an artist who has allowed his limited property right to go to his head and is now oppressing performing artists selflessly serving the public and the Muses.

Yet, it's odd that we treat intellectual property this way. If the ART had been trespassing on Beckett's farm instead of his literature, there would be no question of his right to kick them out. Many of us feel the same level of rights apply to intellectual property and for better reasons. In a sense, a person deserves what she creates more than she deserves what she inherits. The creator has a deeper, more personal interest in her own creation than in things she purchases from a grocery store or a real estate agent. The interest is emotional. It is also social: we may judge bankers by their net worth, but we judge artists and inventors by what they create.

In countries like France and Germany, these interests on the author's part are ex-politically recognized. They are called the "moral rights" of the copyright owner. Even after the author has sold all of his economic interests in a work, he retains inalienable rights to prevent distortion or changes in the work, especially if they could damage his reputation. The creation is recognized as a reflection of, indeed a part of, the creator.

Although we do not recognize such inalienable rights of the author, our copyright law is not insensitive to this idea, i.e. we tie copyright protection to the lifetime of the author, not just a time period necessary for cost recovery plus "profit". We recognize that Endgame is a product of Beckett's imagination and that he has some right to keep it as he imagined it. Yes, Beckett is stymieing the creative impulse of the artists at the ART, but he did not ask them to produce Endgame and they would be more stymied if he never wrote the play. The ART is free to write its own play set in a subway.

This is precisely where a freedom of speech argument defending this production derails. Play rights are like inventors of technical improvements in communication: each give us new "media" of expression, new ways people can communicate. The Constitution provides for patents and copyrights Granting these protections for a limited number of years just push back the arrival, the "gift" of the new "medium of expression." It does not stymie existing freedom of expression Unlike patent, copyright protects freedom of expression by making sure remains your expression

From what we know of Beckett's in this dispute, he would have more happily permitted an adaptation: a play inspired penned, by Beckett (This too copyright owner's permission)Billing this production as an adaptation would have been more honest because it would have recognized the tremendous creative input i.e, changed made by the ART.

But this discussion like the public debate about the ART's production production--ignoressociety's interest in protecting Endgame original form. More and more, we recognize a social value in preserving cultural objects in their original form. With physical objects preservation is easy. Even Soviet leaders to gilt the onion domes of their czarist predecessors without too much in the way of ideological acrobatics. With performing arts preservation of the original script in a value may preserve it, at least in a way many Greek tragedies were not, but this is hardly maintaining the work.

Last December, 33 Bach scores were "discovered" in Yale's archives. Classical music lovers were thrilled precisely because these works, unknown and unperformed, had been lost. The same sense of loss and rediscovers happens when a work is known to exit but is ready soon or performed. Witness the excitement over last year's of a batch if Hitcheock films.