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Einhorn Shenanigans

In April 2006 the Einhorns agreed in court that they would de-register Edward Einhorn's unauthorized derivative copyright based on my play TAM LIN. After 6 months went by and the copyright remained in the Copyright Office's database, we asked Judge Kaplan for a hearing and it happened Friday, November 3.

Here's the timeline so far:

• October 2004: My production partner Jonathan Flagg and I have a monetary dispute with Edward Einhorn concerning his fee for directing TAM LIN up until he left the show (another story in itself.) He thinks he deserves $1000, we think he deserves less, and plan to offer him $500.
• Rather than try to negotiate with us, or take it to small claims court, the Einhorns send us a "cease and desist" letter the second night of the production, which says:

  "Our client is willing to grant you a license to use his blocking and choreography for this run only if you will pay him $2000 (two thousand), before the opening of the show today, in settlement of this dispute. It is made clear, however, that even if this amount is paid to Einhorn today, you will not be accorded the right to use his choreography and blocking in future productions of the Play, absent further negotiations with Einhorn."

  Our understanding of that statement is that if we attempted to pay Edward Einhorn after this point, we would be agreeing that he had a legitimate claim to licensing rights on any and all future productions of TAM LIN. This destroys any chance of further negotiations with Einhorn over his director's fee.
• The Einhorns register a derivative copyright on TAM LIN, without my knowledge or consent.
• October 2005: The Einhorns use the unauthorized copyright as the basis for a lawsuit against us in federal court. The lawsuit claims infringement of the unauthorized "blocking and choreography" script for both the 2004 production of TAM LIN, which Einhorn was involved in, AND the 2005 production, which Einhorn was NOT involved in.
• November 2005 - April 2006: Throughout the pre-trial settlement negotiations, the Einhorns repeatedly offer to settle by promising not to sue us in the future for violating their unauthorized derivative copyright.
• We refuse to agree that Edward Einhorn has any rights over my play or productions of my play.
• April 24 - 26, 2006: the trial. The Einhorns argue that since I knew Edward was taking notes in his capacity as director, I gave tacit approval for the creation of a derivative script. Judge Kaplan's findings about the script say, in part (my emphasis):

  I find that no such (blocking and choreography) script existed before Mr. Einhorn was fired from the show, nor was there any intention on anybody's part that any such script ever be created. Mr. Einhorn claims that during the course of his direction of the show he made handwritten notes on a copy of Ms. McClernan's script from which Plaintiff's Exhibit 52 (blocking and choreography script) was prepared... He claims these notes were made contemporaneously during the direction of the show. I'm sure at least some of them were. The script, in any case, is incomplete. It ends at page 35 whereas the entire blocking script, so-called, Plaintiff's Exhibit 52, is over 100 pages long and the material added by Mr. Einhorn accounted for very few of those pages. So, the majority of any notes that Mr. Einhorn may have taken in connection with directing the show have never been produced and no really satisfactory explanation, at least none that I credit, has been offered for that... But, Mr. Einhorn decided to parlay whatever notes he had into building up a claim here in an effort to get the $1,000 he felt he was owed or, if possible, more, and that resulted in the production of Plaintiff's Exhibit 52. Why prepare Plaintiff's Exhibit 52? Well, the reason was that Mr. Einhorn, aided and abetted by his brother, decided that they were going to file an application for registration of copyright, the filing of which is a prerequisite to a lawsuit.

  and

  The claimed (blocking and choreography script) consisted of movements of actors and positioning of actors. There is a very lively question, I suppose, as to whether that is an appropriate subject of the copyright as to which I express no opinion. If it is, however, the deposit copy certainly didn't cover it because it is impossible to discern with precision from the deposit copy just exactly what the movements were and what the positioning was.

• We agree not to seek compensation through a "frivolous lawsuit" motion against the Einhorns if they agree to cancel the copyright registration. They agree to cancel the copyright registration.
• The judge awards Edward Einhorn $800 - $300 more than he would have received from us if he had talked to us, instead of immediately sending us a "cease and desist" letter.
• Shortly after, we pay Einhorn the $800.
• Our attorney Toby Butterfield sends David Einhorn contact information for the Copyright Office
• August, 2006: In the words of Toby:

  "Having heard nothing for four months, and with Mr. Einhorn not responding to our inquiries, we contacted the Copyright Office directly about the status of the cancellation. The Examiner informed us on August 16, 2006 that she had already explained to (Einhorn) that his request was legally insufficient because he needed to specify in writing whether he requested the cancellation because (1) the registration was procured by fraud; (2) the registered work did not contain copyrightable material; or (3) it was an unauthorized derivative work. The Copyright Office's instructions to Plaintiff are consistent with the grounds for cancellation enumerated in the Code of Federal Regulations. 37 C.F.R.201.7. Instead, Mr. Einhorn wrote to the Copyright Office on September 22, 2006, ignoring its instructions and the applicable Regulations, offering only the irrelevant explanation that he was satisfied with the Court's judgement and did not intend to sue Defendants for infringement."

• October 2006: Toby asks Judge Kaplan for a conference with David Einhorn.
• October 31, 2006: Edward Einhorn states on the web site stageplays.com:

  "Regarding the copyright issue: apparently, (McClernan) is angry that I didn't state the copyright is a fraud, or that it was unauthorized, or invalid. I don't believe any of those things. Why would I state it? ...The court did not find the copyright invalid."

• November 3: Kaplan has a conference with David Einhorn and gives him 2 weeks to cancel the copyright, saying "I've put people in jail for this kind of shenanigans"

Will the Einhorns cancel the copyright by November 21, 2006? Stay tuned.

[last updated: November 6, 2006]