Tuesday, February 21, 2006


The web site savinsucks.com is a great tribute to the First Amendment.

It also happens to be a demonstration of the way David Einhorn, of Anderson, Kill & Olick, P.C., embarrassed himself in his attempt to use the Lanham Act to punish free speech.

And now he's trying to do it again. David Einhorn is representing his brother, Edward Einhorn, in his claim that by the mere fact that Edward was involved in my play, TAM LIN, I therefore owe him credit and licensing rights over the play for eternity.

Although the Einhorns think that they're going to get big bucks out of us for "violating" Edward's "copyright" they nevertheless are not happy about being publicly connected to this case (Edward refused to be interviewed for the NYTimes article) and for good reason - they risk ending up as pariahs in the theatre world. For if they succeeded in their case it would have a chilling effect on American theatre.

But any "metastuffing" that anybody could do is nothing compared to Edward Einhorn's connecting himself to the case publicly by writing a letter to the Wall Street Journal about the case.

My partner, Jonathan Flagg, has a response to Edward Einhorn's fantastical claims:
Since filing suit in October 2005, Edward Einhorn has done his best to spread an incorrect version of his case – resorting to all manner of misinformation, presumably in an attempt to garner sympathy. Neither the facts nor the law support his viewpoint; he therefore hopes to apply pressure by influencing public opinion. While Einhorn’s misstatements are too numerous to list, we will address some of the most grievous. Einhorn’s quotes are taken from his blog entry on the Wall Street Journal (http://blogs.wsj.com/law/2006/01/30/off-off-broadway-and-into-federal-court) and his letter to the editor in the New York Times (http://www.nytimes.com/2006/02/12/arts/12alsmail.html).

Einhorn Claims:

“A fee was agreed to, in writing….” And “I was never paid the promised fee” (He claims $1000.)

But Actually:

Judge Lewis A. Kaplan wrote in his February 7, 2006 order dismissing Einhorn’s promissory estoppel claim, “that aspect of the complaint clearly is without merit. There was no clear and unambiguous promise to pay Einhorn $1,000, regardless of what happened….”

Einhorn Claims:

“I do not wish or expect $3 million, which is a number derived from the maximum potentially allowed. I merely ask that I get a reasonable amount for my work as a director….”

But Actually:

Einhorn seeks damages that are many times more than the maximum the law allows, even if he were eligible for statutory damages, which he is not. As William Patry points out in his copyright blog (http://williampatry.blogspot.com/2006/01/copyright-in-stage-directions.html), “statutory damages are awarded per work, not infringement.” Edward Einhorn’s brother/attorney/business partner, David Einhorn, should know this well, as the chairman of the intellectual property group for Anderson, Kill & Olick, P.C.

Einhorn Claims:

“I felt I had no choice but to sue Ms. McClernan and Mr. Flagg, partly based on their theft of my intellectual property.”

But Actually:

A theft has occurred, but Einhorn is the thief. There is a similarity between the blocking script (which Einhorn registered two months after the show closed) and video of the 2004 production, and with good reason. Einhorn wrote his blocking script after he left the production, based on these video tapes. His script was reverse engineered from our work, not his. This will be proven during trial with video tape taken during rehearsals that Einhorn directed. These videos show very different blocking.

Einhorn compounded this fraud by stating that he had Nancy McClernan’s permission to create the blocking script on his application to the United States Copyright Office. (The original author’s permission is required to register a derivative work.) No such permission was ever granted. But most grievously, Einhorn seeks to block Nancy McClernan from having her play produced ever again without his permission.

This case is nothing more than an extreme abuse of the legal system. It shows how someone with an attorney-brother, can file copyright registrations and complaints with no evidence and no basis in law. Most individuals and small companies simply cannot afford the high cost of legal fees. They are forced by financial circumstance to quickly settle, surrendering their rights and money to these thieves. Fortunately, the vast majority of attorneys would never file such a frivolous and fraudulent case; doing so is prohibited by the rules of civil procedure. We will be moving to seek a ruling from Judge Kaplan that Anderson, Kill & Olick, P.C. violated these rules. Our attorney, Toby M.J. Butterfield of Cowan, DeBaets, Abrahams & Sheppard LLP is currently preparing a Rule 11 Motion to that effect. We are fully committed to defending this case in trial until our rights are fully vindicated.