Whitewashing Expression: Using Copyright Law to Protect Racial Identity in Casting

Porchlight Music Theatre, a non-equity theatre company in Chicago, decided to capitalize on the popularity of Lin-Manuel Miranda’s smash hit Hamilton by producing one of Miranda’s earlier works, In the Heights. This earlier work tells the story of a predominantly Latinx community in New York’s Washington Heights neighborhood. Porchlight’s production, however, received significant negative attention when it was revealed that the lead character—Usnavi, an immigrant from the Dominican Republic—would be played by a white actor. While casting white actors in nonwhite roles is nothing new and has been a persistent (and persistently criticized) practice in both theatre and film, the casting for In the Heights struck a nerve. This particular production incensed the Chicago theatre community because of the importance of racial identity to the story. In the Heights focuses on the lives of immigrant families and their daily struggles with the gentrification of their neighborhood. Casting a white actor in the lead role in such a story elicited a significant backlash. This Note examines the damage done to authorial intent when the racial identity of casting undermines key elements of the author’s expression, and proposes that the existing tools of U.S. copyright law may provide a solution. Current production licensing and casting practices do not afford adequate protection of authorial intent regarding key character traits such as racial or gender identity. Consequently, this Note urges an incorporation of the moral rights concept of the right of integrity into the current copyright framework through an expansion of derivative rights protections. By focusing on when character identity elements are central to the expression of the author, these extensions of existing law will allow playwrights to protect the integrity of their work in subsequent productions without unduly inhibiting the artistic expression of the theatre companies performing the work