Trick or Treat,
“Money or Eats” â„¢
At Dramaturgy.net there is a link to the RENT Lawsuit Transcripts and to an article on August 26, 1998 in Talkin’ Broadway about the case being closed. I am not sure about “the industry” but most people I know working in theatre would find this statement in the article more than mere hyperbole. Not only was Lynn Thomson never called “the Rosa Parks of the theatre industry”, most would find the analogy itself offensive.
The heirs of Jonathan Larson finally have addressed the claims of Lynn Thomson regarding credit, royalties, and other issues concerning her participation in the writing and rewriting of Rent’s script. … This marks the successful end of a heroic battle by a dramaturg who rightfully has been called the “Rosa Parks” of the theatre industry. Like Parks, Lynn Thomson refused to give up her place, either on the title page or in the royalty pool.
Rosa Parks and her act of civil disobedience became the icon of the Civil Rights Movement. To suggest that Lynn Thomson and her legal team were engaged in a comparable heroic battle is as disrespectful to theatre as it is all those who fought segregation.
The truth is that Lynn Thomson’s legal attempt to be awarded co-author status in the successful musical Rent was a point of contention within the theater industry. Joan Channick, as Managing Director of Theatre Communications Group (TCG), said:
This case generated huge controversy in the field, and caused tension between playwrights and dramaturgs. Playwrights feared encroachment on their authorship of their plays, while dramaturgs saw Thompson’s claim as recognition of the importance of their often-misunderstood role.
Joan Cannick’s essay Author! Author? in April’s American Theatre was spurred by the recent attempts by some directors to copyright stage directions and cites a New York Times article on January 29, 2006 on the same subject Exit, Pursued by a Lawyer. This article highlights the director Edward Einhorn’s argument over being fired from an Off Off Broadway production after two months of unpaid work.
Edward Einhorn is the artistic director of the Havel Festival which is playing right now in various venues around the city. His brother David Einhorn is the producing director of the festival. Brother David is also an intellectual property lawyer and so the ideal mercenary to ride shotgun in what is obviously becoming an increasingly cutthroat downtown theatre scene.
If you google for the theatre production TAM LIN the link you find has the subtitle “A Halloween Tale of Magic & Seduction.” But in following the link to the actual web site the subtitle for Tam Lin transforms into the odd “a full length play free of legal encumbrances.” Obviously a certain vindictiveness still runs hot in playwright Nancy McClernan. On the web site, instead of describing her “Halloween tale of magic and destruction”, she chronicles her legal woes with the Einhorn brothers.
A couple days ago Nancy McClernan posted a comment here at Rat Sass on a blog entry where I had referenced Edward Einhorn’s Open Letter to President Bush.
I find it incredibly amusing that Edward Einhorn would compose a pious, pompous letter to President Bush, quoting Havel on “the seemingly powerless in society.
This is someone who runs a theatre production company specializing in off-off Broadway productions who feels no sting of conscience whatsoever about exploiting non-Equity actors. This is someone who believes that actors get the glory of being onstage and so “they are usually happy to work for free.”
This is an utterly, transparently self-serving belief for someone who engages actors to perform in his shows. Apparently Einhorn believes that by simply staging the works of Havel, it somehow gives him the right to take on the mantle of the champion of human rights.
The playwright’s article on the debacle with the director titled The Strange Case of Einhorn v. Mergatroyd is in the current issue of The Dramatist. This is the magazine of the Dramatists Guild where to no surprise she found ready but mostly ineffective allies in her costly need to free her play of “encumbrances.”
To dramaturg Lynn Thomson’s dismay, the Dramatists Guild had also sided with the Larson estate over the copyright of Rent. She rebuked them on their prejudice.
There’s a huge bigotry revealed against dramaturgs by the Guild. They attack me because I’m called a “dramaturg” rather than “co-author.” And yet, this union claims to represent people who write, and they’re saying it doesn’t matter that I wrote. That’s a deeply disturbing prejudice. Essentially, I can’t drink at the same water fountain as authors because because I’m credited as a dramaturg.
Of course Edward Einhorn and other directors could conceivably criticize the Dramatists Guild in a similar fashion for their prejudice against copyright and/or co-author status for their “blocking and choreography.”
Theatre is being less and less thought of as artists in collaboration, more and more thought of as investors in product development. The various artist associations, guilds, and unions are all building fences and establishing their percentages of “the product” evolving through its developmental process.  This “showcase” mentality, once something scorned by the serious artist, has now become the collaborative paradigm for all. Everyone with something to sell, a career or play to develop, schemes within schemes. Theatre stillborn within its Pyrrhic victories in capitalism.
In spite of our victory over Einhorn’s director’s copyright scheme, the case was extremely expensive for us, costing over a hundred thousand dollars. And because of this, we cannot afford to do a full production of TAM LIN in 2006, and instead will be doing a reading. At least the brothers Einhorn, for all their wealth and privilege, sense of entitlement, and absolute lack of any sense of proportion, cannot kill this play. —N. G. McClernan
There are no heroes in any of these battles over “property rights.” Whether the amount is a couple hundred dollars or thousands upon thousands of dollars, none of the players in this “industry” should claim that they are in service of the art form of theatre. And they especially should not in their financial scuffles for “dramaturg” “director” “playwright” rights allow themselves to be compared to Václav Havel or Rosa Parks and the struggle for human rights they each championed.
One thought on “Trick or Treat,”
The Strange Case of Edward Einhorn v. Mergatroyd Productions just got stranger – the Einhorns are doing everything they can to avoid admitting to the Copyright Office that the “blocking and choreography” script that they registered without my authorization (they were supposed to have my authorization, since the script is a derivative work based on my play TAM LIN.) As a result, our attorneys asked Judge Kaplan to have a word with David Einhorn, Edward Einhorn’s brother/attorney. He did so yesterday (Friday) and gave him two weeks to de-register the copyright.
Judge Kaplan was not pleased. He said to David Einhorn: “I’ve put people in jail for this kind of shenanigans.”
One of the most appalling parts of the hearing is that at one point Einhorn seemed to be trying to convince the judge that since the Einhorns promised they wouldn’t take action against us in the future for violating an unauthorized derivative copyright, we should all just forget about cancelling it. As if the entire trial, and their agreement to de-register the copyright, and the $100K+ we spent never happened. The reason we had a trial is because that is exactly what they kept offering us during settlement hearings – a promise not to sue us in the future for violating Edward’s unauthorized derivative copyright.
If it wasn’t for this ill-gotten copyright, they never would have been able to drag a dispute over a small amount of money through federal court.
But this is really the crux of why there can never be a director’s copyright. Because the blocking of a play is a derivative work. As long as it is classified as a derivative work, it cannot be registered (legally) without the authorization of the playwright. And no playwright is going to be stupid enough to give authorization, especially since directors like Edward Einhorn interpret “using their work” in the most favorable terms for themselves. As when Einhorn sued me for producing/directing my own play in 2005, using a new concept, set and revised script, claiming that that was just as much an example of violating his “copyright” as the 2004 production. If the 2005 production didn’t pass the “not violating Einhorn’s (unauthorized) copyright” test, then virtually no production of TAM LIN would. Especially since some of what Einhorn considered copyrightable was “stage right” and “stage left.”
I think the Dramatists Guild made the best case for why a director’s copyright is unworkable:
“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.”
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