Friday, August 26, 2011

What Edward Einhorn did to my play TAM LIN and why all American authors should be concerned - part 7

We last left this series at part 6, where I had found a copy of a back issue of Volunteer Lawyers for the Arts that contained an article that not only argued against a director's copyright but suggested that Edward Einhorn may well have violated MY copyright by taking a copy of my script, putting his words on it and submitting the results to the US Copyright Office.

Unfortunately I can't afford to start a lawsuit just now - unlike Edward Einhorn I don't come from a wealthy background and didn't inherit money - but then we all know the legal system favors the wealthy.

But Edward Einhorn may rest assured (and I know he reads this blog regularly, including now while he's in Israel) - one way or another his unauthorized, unethical, shameless "blocking and choreography" script will be removed from the US Copyright Office database. If it takes me the rest of my life, I will see to it. And the Dramatists Guild is dedicated to the same goal - and really, all American authors should want to see justice done - we are all threatened by the ability of wealthy people like Einhorn to use the legal system to throw an elaborate hissy-fit.

So one result of the trial of April 2006 was this: Mergatroyd Productions was ordered to pay Edward Einhorn $800 plus interest for his work-for-hire as a director. This was much less than the $2000 the Einhorns tried to scare out of us with the cease and desist letter of October 2004 and less than I had been willing to pay him. And it was only $300 more than what Jonathan was willing to pay him. So Judge Kaplan agreed with Jonathan that Einhorn didn't deserve $1000, much less $2000 - he only disagreed about how much less than $1000 - their difference came down to $300.

But the rich are different from you and me.

So Mergatroyd was ordered to pay Einhorn the money, which we did. But the Einhorns were ordered to do something too - de-register Edward Einhorn's "blocking and choreography" script.

Now Jonathan and I had believed that if a federal court judge ordered something, it would be done without delay. Certainly Judge Kaplan's ruling made it crystal clear that the Einhorn copyright failed every single criterion of copyrightability. To quote from Kaplan's decision:
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....

...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.

In other words:
  1. I had no intention that Einhorn should create his "blocking and choreography" script - so it failed as an authorized derivative work.

  2. Although Einhorn's copyright registration claims that Einhorn's work was created October 21, 2004, Judge Kaplan finds this is false.

  3. The Einhorns registered the copyright for the purpose of instigating a lawsuit.

  4. The Einhorn "deposit copy" was too insubstantial to be copyrightable.

  5. Now according to Chapter 37 of the Code of Federal Regulation:
    General policy. The Copyright Office will cancel a completed registration only in those cases where:

    (1) It is clear that no registration should have been made because the work does not constitute copyrightable subject matter or fails to satisfy the other legal and formal requirements for obtaining copyright;

    A federal court judge said exactly that - the work fails to satisfy legal and formal requirements for obtaining copyright.

    Months after the trial ended, the Einhorns still had not deregistered the copyright, and on a theater blog in October 2006 Edward Einhorn actually stated that "...the copyright was never found invalid in any way. This was not ruled on."

    Only the deliberately obtuse could fail to understand that Judge Kaplan did indeed find the copyright invalid. The only thing he did not rule on was the issue of whether a director's copyright is valid or invalid - but that has no bearing on the fact that Einhorn's copyright was declared invalid. Period.