Thursday, August 11, 2011

What Edward Einhorn did to my play TAM LIN and why all American authors should be concerned - part 6

My former partner Jonathan and I had an idea that we could do TAM LIN every Halloween. First so that we could learn more about producing and second because we wanted to build a loyal following and make seeing the play a Halloween tradition.

And so we did the play in 2003, 2004 and by 2005 the folk music community had found out about us and were starting to get the word out. We were on our way. We assumed that Edward Einhorn had given up on the 2004 disagreement entirely. As I said, I wanted to give him the entire $1000 originally agreed on, but I was overruled. That we didn't hear from Einhorn further wasn't all that surprising. I had been to his place, and he didn't look like he was hurting for money.

But soon after we began the 2005 rehearsal for TAM LIN there was a knock on the door first thing in the morning. Now I worry about my daughter all the time, and so whenever there's a late night phone call, early morning knock, etc. the first thing I think of is that something happened to my daughter. I opened the door and saw a woman dressed in a police-like uniform and feared the worse. So when she served me the court papers indicating I was being sued by Edward Einhorn, I was so happy I could have hugged her. It always helps to have a little perspective.

We couldn't believe that Einhorn was suing us for producing TAM LIN 2005 and we immediately contacted the Dramatists Guild who hooked us up with a lawyer. It all seems like a blur now, but we ended up going back and forth with the Einhorns over the next five months over the issue of my right to have my play TAM LIN produced without having to pay Edward Einhorn. There was another issue involved, over Einhorn's payment and whether or not he had a contract. The contract issue was a complete waste of time from my point of view - I only cared about whether or not my play would be freed from Edward Einhorn's legal machinations.

So we went back and forth until it finally became clear that the Einhorns were refusing to give up on the copyright issue and so we went to court in April 2006.

I wrote about the case for the Dramatists Guild in September 2006, and posted the article with links under The Strange Case of Edward Einhorn v. Mergatroyd Productions.

The Guild pointed out in its Amicus brief:
Directors are employees hired to help turn a dramatist's script into an ephemeral experience for an audience. To accomplish this, a director gives ideas to the designers, to the actors, to the choreographer, and to the writers as well. Directors do not actually write the play, or design the sets, costumes or lighting, or act the roles, or choreograph the dance. In this sense, directors are interpretive, rather than creative, artists, and their role in the collaborative process is not unlike that of an orchestra conductor. A conductor interprets a musical composition by working with an orchestra to achieve a particular rendition of the work. Unlike Plaintiff, who has claimed ownership of his interpretation of the playwright's work, no conductor, to our knowledge, has had the temerity to claim ownership in his or her version of a Mozart symphony.

Pamela Berlin of the Stage Directors and Choreographers Society took the stand for the Einhorns. She said:
It is my view and the view of the SSDC (the acronym is now just SDC) that choreography and often stage directions amount to intellectual property of the creator.
Notice her emphasis on choreography, which had already been established as a copyrightable form. We were not arguing about choreography and as I mentioned earlier in this series, although Einhorn claimed that his script was for "blocking and choreography" there was no choreography created for the TAM LIN production of 2004.

The Einhorn legal team tried to compare our case to the case of Mantello v. Hall but the Dramatists Guild countered:
Plaintiff's reliance in this case on Mantello v. Hall... is wholly misplaced. The Court in Mantello held only that the director's copyright registration created a presumption of validity; the Court, however, had no occasion to determine whether, on the facts of that case, the presumption should hold, or whether the stage directions at issue were entitled to copyright protection.

Recently I discovered the Summer 1996 issue of the Columbia Law & the Arts with an article by David Leichtman that discusses the Mantello case, among others, called "Most Unhappy Collaborators: An Argument Against the Recognition of Property Ownership in Stage Directions.:

Some very important points made here:
...directors have sought further power through the courts by alleging intellectual property rights in their work.

This attempt pits stage directors and dramatists, who must work closely together as artists, directly against one another in the legal arena. For one thing, if stage directors are found to have rights which survive the closing of a production, the publication of dramatic works will be radically affected. The printed version of the work, which normally incorporates most aspects of the premiere will cease to be a complete record, as it is meant to be, of the "defining" production in which the dramatist participated and approved of changes in the staging. Because it is rare that a dramatist will participate in rehearsals beyond the first production, the only insurance the dramatist has that the work will continue to be performed in accordance with her wishes, is to cause the script to be printed as performed. Indeed, it has hertofore been the custom to simply assume the New York production is one and the same with the play. For example, in the Love! Valour! Compassion! case, the playwright Terrence McNally included a preface in the Acting Version of the play, stating that the initial New York Production was "definitive." The author even told one reporter that it was his hope that regional productions would not stray too much from his intent, as reflected by the staging of the New York production.

Thus, the dramatist normally receives a copy of the stage manager's script upon the opening of the show. This is then incorporated in the script given to the publisher, which normally also becomes the licensing agent of the play for subsequent productions (other than first class productions, which only the dramatist can authorize)... Further, the script itself includes the following notice:

All groups receiving permission to produce Love! Valour! Compassion! are required to (1) give credit to the Author as sole and exclusive Author of the Play in all programs distributed in connection with performances of the Play... and (2) to give the following acknowledgement on the title page of all programs distributed in connection with performances of the Play: 'Originally produced by the Manhattan Theatre Club on November 1, 1994.

In the Love! Valour! Compassion! case, one of the Caldwell Theatre's major defenses is going to be that they relied heavily on the Acting Version in preparing their production. The accused theatre's development director, William McCarthy, has stated "[i]n our mind, we didn't do anything out of the ordinary that any regional theatre that's trying to mount a productin in two and a half weeks doesn't: you refer to the script and to other information that you get from the producing entity and you use it. According to the artistic director, the script sent to him by the licensing agency included explicit stage directions which mirrored the Broadway production. McCarthy continued, "[w]e reviewed [SSDC's] list of complaints, and for the most part were able to relate them back to information contained in the script. Thus, Dramatists Play Service will no doubt have to be added as a necessary party to the lawsuit. In turn, Terrence McNally, who authorized the publication, will also be drawn into the suit.

But it's the section in the article called "II. Can Stage Directors Copyright Their Work A. Limited Scope of the Grant" that has some absolutely fascinating footnotes:
Thus stage directors encounter their first difficulty in securing protection. If they fix their work, it is most often without authority to do so.

Footnote #36: Both Mantello and Guitierrez affixed their notations to copies of the script. See "Gutierrez stage production of the Most Happy Fella," PAu 1520015 (June 6, 1996) (copyright registration form); Dolen, supra note 4 (Mantello submitted his own notes and the prompt book for copyright protection).

While some fixations may be authorized, the director's interest in them is not tenable: the stage manager's script, also known as the prompt book, is the culmination of many people's work and does not represent the sole work of the director. Similarly, a videotape of the production also does not justify copyright registration by the director.

Footnote # 37: Initially, a producer has no right to videotape the production, save for short excerpts for the purposes of promotion...

I should note here that since the 2004 production of TAM LIN was not an Actors Equity Showcase production, and the author of TAM LIN was also a producer, we videotaped some of the rehearsals and shows. Einhorn tried to use our rehearsal videotapes against us.

As we have seen, the dramatist's grant of rights to the producer is normally quite limited in scope: the producer is entitled only to present the work on the live stage. Thus any attempt to register the entire performance or to prevent others from performing it is beyond the scope of the producer's grant of rights.

Footnote # 38: See O'Neill v. General Film Co...

Since the director is an employee of the producer

Footnote #39: See SSDC CBA...

it is also beyond the scope of the grant for the director to do anything other than what is required in connection with the live performance.

Footnote #40: Because the dramatist retains the sole right to make copies of the work under 17 U.S.C 106(1), and to distribute it under 17 U.S.C. 103, the director's act of copying the script and sending it to the Copyright Office is itself an act of infringement.

It is footnote #40 of course that I find the most fascinating. The suggestion that Edward Einhorn infringed my copyright by submitting a copy of my script (with his notations affixed) to the Copyright Office. I will have to look into this legal issue further.