Saturday, October 23, 2010

Found it

I mentioned yesterday that a Manhattan Theater Source regular had a rather negative opinion of Edward Einhorn - I found the thread - he says:
But to try to kidnap the play away from future productions, seems more of an ego driven self delusional rampage than solid base for a case.

I'm sure he is very creative, i mean, just the way he twisted words, in what amounted to a case of extortion and almost managed to get away with it, shows sign of creativity.

But Jesus H. Christ, the man should never be allowed near a play again.

However, having grown up in Newark, New Jersey... this would have been a case that would I have been dealt with on the street... with a spiked baseball bat.

So it wasn't a bat - it was a spiked baseball bat.

This thread is four years old but it still pisses me off to see Edward Einhorn grandly declare that the case is no longer of interest. The case in which he sued me for producing my own play - and the lawsuit was based on him getting an unauthorized - and therefore legally invalid - copyright registration on his derivative "blocking and choreography" (sic) script.

Unlike Einhorn, I don't come from a wealthy background - I was a single mother on welfare at one point - and working as a technical writer is not the way to riches, so I can't afford to sue him to force him - and the US Copyright Office - to eradicate his illegal copyright registration from the Copyright Office's databases entirely.

Now technically that copyright registration does Einhorn no good whatsoever - he can't do anything with it. The best thing about the case of Edward Einhorn v. Mergatroyd Productions is that we got a federal court judge to say that a "directors copyright" could only be valid if the registered work indicated precisely how the actors are moving - as in the case of choreography. What Einhorn tried to copyright was "entered stage right" and stuff to that effect. And no directors block so tightly that their blocking could meet the standards that Judge Kaplan set. So thanks to our case, there will probably never be a director's copyright.

Of course the crux of the issue is the fact that the US Copyright Office does not ask for proof of authorization for derivative works. So really, any asshole like Edward Einhorn, with plenty of money and a lawyer brother, could pull a stunt like he did and register a derivative copyright on ANYBODY's original work. The only reason we were able to fight Einhorn was that my ex-partner Jonathan goes absolutely ballistic if he feels that anybody is disrespecting him, and just during the time Einhorn sued us Jonathan was beginning to climb the corporate ladder due to his genius at database design - so we were in a very rare position of having the will and the means to fight Einhorn.

But Jonathan and I split up very shortly after the trial - and unfortunately I am not a genius of database design and so can't afford to continue to fight Einhorn through the legal system. But even so - this is not over. It will never be over until Einhorn's ill-gotten copyright registration is gone.

I offered advice to playwrights on that thread which I think still stands:


Because Edward Einhorn registered his unauthorized derivative copyright on TAM LIN before I registered my copyright, I have fewer options for statutory damages and attorney’s fees, which makes it less appealing to sue Einhorn on the basis that his unauthorized derivative copyright infringes my copyright.

It costs $45 for each registration filing. And what if you make substantial changes to the work? I learn something new about my play every time it is performed, and I make changes to my work based on those lessons. So at what point do I file a new copyright on the revised work? I was unable to find any general guidelines for copyright revisions on the Copyright Office’s web site, but I did find a discussion of web site content: “Generally, copyrightable revisions to online works that are published on separate days must each be registered individually, with a separate application and filing fee”

So if the Copyright Office expects a separate filing for every day on which something new is published online, it’s a safe bet they’ll want a separate filing for an updated play. This can get expensive. But it’s worth it, especially if the play is going to be produced and anybody but you is involved in creative decisions concerning the play.

Here is the US Copyright Office’s web site.


This probably seems silly, because you will rarely meet somebody who has the chutzpah to register an unauthorized derivative copyright on your work, and then use it as the basis of a lawsuit against you. But I’m living proof that it can happen. People who don’t have to pay huge court costs are less likely to think carefully before suing somebody on a frivolous or improper basis - in the words of Judge Kaplan “making a mountain out of a molehill.”


Of course I did not authorize Edward Einhorn to create or register a derivative script based on TAM LIN – I had no idea he had done so until he sued me a year after he registered the copyright. And Judge Kaplan ruled that nobody requested that such a script be prepared, and that the script was not prepared until after Einhorn and I parted ways. And in spite of all that, Edward Einhorn is still claiming, both in court (through his attorney brother David) and on this very discussion board, that he does not believe that his copyright registration was unauthorized, which is why he can’t de-register his copyright properly.

So just imagine how it would be if, at any point during my association with Edward Einhorn, I had indicated that I believed in the cause of a director’s copyright, or thought that it would be fine if Einhorn held rights on future performances of my play. That probably still wouldn’t hold up in court. I don’t think anything less than me sending an email to Einhorn saying “go ahead, register a derivative copyright on TAM LIN” would be proof that I authorized anything, but it would have stretched the case out even longer.


The important thing to remember is that the cause of a director’s copyright is dead so long as a director’s “blocking script” is a derivative work. Which of course by definition it is – without the play, the blocking would be meaningless. My opponent Einhorn still does not get that, which is why he proposes specialized blocking notation, in his online essay promoting the cause of a director’s copyright. As if an unauthorized copyright would become authorized simply because of special notation.

And this is an important reason why we have refused the Einhorns’ offers concerning this copyright. Their first offer was to simply promise that they wouldn’t use the copyright as the basis of a lawsuit against us in the future. That was the reason they gave the Copyright Office for why they wanted to cancel their copyright. It wasn’t good enough for the Copyright Office either. Their second offer was to sign over Einhorn’s copyright to me. This would also not do, because that would be tantamount to saying that Einhorn’s copyright was valid property which could be handed over. My partner Jonathan and I consider Einhorn’s copyright a fantasy, incapable of being owned by anybody.

So while you are not protected from a shameless person registering a derivative copyright on your work without your authorization, at least you can turn around and sue them for it - especially if you registered your copyright. And unless you want to share ownership rights of future performances of your work, you will not be foolish enough to ever authorize a director to register a derivative copyright on your work.


The Guild couldn’t afford to pay our court costs, but they supported us in many other ways. The Guild is the only organization that is truly fighting the SSDC - Society of Stage Directors and Choreographers (I never heard of them either, until this case) in its campaign for a director’s copyright. If you are an American playwright but not a member of the Dramatists Guild, you should join. We playwrights need to stick together. One of the benefits of being a playwright is total artistic control – nobody can change a word of your script in performance without your say-so. The trade-off is that there’s much less money to be made writing plays than writing screenplays. But what the screenwriters gain in money, they lose in artistic control. If the SSDC had its way, directors would reign supreme in the theatre the way they do in movies. And that would be a very bad situation for playwrights – the worst of both worlds – little money and little power. The Guild is fighting to prevent that. The Guild's web site is here.


I’m serious. Thanks to my experience with the director of TAM LIN 2004, I directed the play myself for the 2005 production. It was so much simpler. Instead of fighting with the director over completely wrong-headed interpretations of the script and bad casting decisions, I was able to get my vision of the play much closer to what I wanted, with much less stress. Directing is not brain surgery, in spite of the academic/theatre system that tries to mystify the process and promotes directors as gods. Good directors cast good actors, and then mostly stay out of their way and let them act. Good directors serve the play, not twist it and turn it and then claim authorship rights. Good directors know there is only so many ways to direct a play, and that you can’t copyright “stage left” and “stage right.” Good directors make sure the audience understands what is happening on stage, not play pretentious mind games in the mistaken belief that it’s cool and avant-garde. You could be a good director. Even a very good director. Especially for your own plays. You should consider doing it at least once. If only to get a sense of what directing a play entails. If you decide later you don't like to direct, at least you'll have an idea of what directors need from a playwright - and that will make you a better playwright.