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PRELIMINARY STATEMENT PURSUANT
TO F.R.A.P. 28(2) AND LOCAL RULE 28(2)
This appeal is taken from a final order and judgment of the United States District Court for the Southern District of New York (Hon. Lewis A. Kaplan, U.S.D.J.), entered on August 1, 1997. The District Court had subject matter jurisdiction of this copyright action pursuant to 28 U.S.C. §§ 1138(a) and 1331. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1292. The Notice of Appeal was filed on August 27, 1997.
STATEMENT OF THE ISSUE
In a situation where (a) both a principal writer and a secondary writer expressly agreed to, and engaged in, the co-writing of a new version of a play previously drafted by the principal writer, (b) it is undisputed that their new version meets the definition of a "joint work" as expressly and plainly stated in Section 101 of the Copyright Act, (c) both writers contributed major and copyrightable elements to the work, (d) all of this occurred in the context of a not-for-profit theater project which the participants did not expect to earn money, (e) the principal writer designated the secondary writer on a copyright page at the end of all of the drafts of the new version and otherwise credited the secondary writer as a co-writer, (f) the previous version of the work was unproduceable and the secondary writer was a significant force in its radical transformation into one of the most financially and critically successful plays ever staged on Broadway, and (g) the secondary writer never signed or agreed to any transfer of copyrights with respect to her contributions, can the secondary writer nevertheless be denied all rights as a statutory co-author of the work, simply on the grounds that she is unable to prove that the principal writer, now deceased, understood that both of them would own legal rights in the work, namely, a right to share in future proceeds, a right to control the work, and a right to be recognized as the author?
STATEMENT OF THE CASE
This is an action for an accounting and declaratory relief under the Copyright Act, on the grounds that the plaintiff-appellant, Lynn M. Thomson ("Thomson"), is a statutory co-author of the hit musical play known as Rent, a work described by the District Court as "an astounding critical, artistic, and commercial success." Based on a one-half interest in the new material co-written by Thomson and the principal writer, the late Jonathan Larson ("Larson"), Thomson seeks an accounting from Larson's heirs (the "Larson Heirs") for 16 per cent of the authors' share of royalties.
At a bench trial, the District Court found that Thomson wrote a substantial amount of lyrics for the play. The Court also apparently credited Thomson's testimony that she contributed plot developments, thematic elements, structure, character details, and other forms of expression. Moreover, the District Court found (a) that Larson had an explicit discussion with Thomson regarding her co-writing, in which Larson expressly stated that he wanted her to "write," and in essence, to serve as a playwright, (b) that Larson promised Thomson "that he would never say that he wrote what [Thomson] did," (c) that Thomson and Larson "worked extremely intensively together" on a "radical transformation" of the play's script, (d) that "on any standard of what sort of contribution is copyrightable," Thomson made a "non-de minimus copyrightable contribution" to this "new version" of the play, (e) that Thomson's contribution was "major," (f) that the previous studio production script of the play "was not a produceable work," and (g) that Thomson "was a significant force in turning the studio production script into the hit that Rent became."
The District Court also concluded that Thomson's claim of co-authorship "is made in good faith," and that it is "clear" that Larson, had he lived, would have arranged for Thomson to receive compensation and credit for her contribution. (T700)(1)
The legal question presented below (and presented now on appeal), is whether by virtue of the above-listed facts, Rent is a statutory "joint work," defined in the Copyright Act as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. Despite the many factual findings in favor of Thomson, the District Court, believing that it was constrained to do so by the holding in Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991), issued a declaration that Thomson was not a joint author. The District Court did so entirely because it concluded (a) that Larson did not understand that Thomson would have three legal rights with respect to the play, namely, "a right to share in the proceeds, a right to control the work, [and] a right to be recognized as the author," and (b) that such an understanding is required on the part of all joint authors under Childress. (emphasis added).
As a result of the District Court's declaration, combined with the refusal of the Larson Heirs to participate in any discussion of a negotiated settlement, Thomson has received no royalties whatsoever for her many months of otherwise successful labor with Larson in the co-creation of Rent.
The Facts
Because most of the District Court's findings of fact are essentially accurate, and because this appeal turns almost entirely upon issues of law, we will not burden this Court with a repetition of all of the relevant facts. Instead we will concentrate on those which are most relevant, as well as those which the District Court may have overlooked.
Rent Begins as a Collaboration
The first version of Rent, begun in 1989, was a work of two authors. (E1801-02)(2) It was Billy Aronson ("Aronson") who had conceived the idea of writing a modern musical play based on Puccini's opera, La Boheme, to be set in present-day New York City. Id. Aronson was a playwright, however, not a composer. Id. Through an intermediary, Aronson sought out a composer with whom he could collaborate on the project. Id. He ultimately chose Larson to be that composer. Id. Together they created the first version of the work. Id.
Aronson and Larson officially parted company in 1991, when Larson obtained Aronson's permission to develop the play without him. (E1803) Larson and Aronson subsequently signed a written agreement, dated November 23, 1993 (the "11/23/93 Larson/Aronson Agreement"), confirming a "private arrangement" between the two of them, in which Larson promised, with respect to the play, that "the title will always be RENT, a rock opera by Jonathan Larson. Original concept and additional lyrics by Billy Aronson." (E441) In the 11/23/93 Larson/Aronson Agreement, Aronson also relinquished any claims of "active" coauthorship. Id. He later transferred his copyrights to the Larson Heirs in exchange for four per cent of the authors' share of royalties. (E976-80)
New York Theater Workshop
Agrees to Develop the Play
In the Summer of 1992, Larson presented the then-current version of Rent to James Nicola ("Nicola"), the Artistic Director of New York Theater Workshop ("NYTW"), a non-profit theater company. (T563, A285)
Nicola was favorably impressed with Larson's talents as a songwriter. (T569-70) He did not consider Larson to be a playwright, however. Id. His view apparently was shared by subsequent Rent producer Jeffrey Seller ("Seller"), a friend of Larson's, who believed that the play "made no narrative sense whatsoever." (T72) Nicola accordingly urged Larson to consider allowing NYTW to hire a playwright or bookwriter for the project, but Larson refused. (T592)
During an intensive period of more than two years, from the Summer of 1992 through November of 1994, NYTW and its staff, including a dramaturg, did all that they reasonably could to assist Larson in rewriting the script, in preparation for a workshop production of the play. (T563-67, T632-33) These efforts and expenditures resulted in a revised script, dated November 1994 (the "Workshop Version"), which was presented to the public in a series of staged workshop performances produced by NYTW and directed by Michael Greif (the "Workshop Production"). (T72) During all of the above efforts, until November of 1995, NYTW had no contract with Larson, and had obtained no production rights or any other rights in connection with Rent. (E776)
In the Workshop Version of the script, Larson credited only himself and Billy Aronson, in the manner prescribed by the 11/23/93 Larson/Aronson Agreement. (E473-576) He did not credit Nicola, Greif, NYTW's Rent dramaturg Greg Gunther (T632-33) or anyone else at any place in the script. (E473-576) By the time the Workshop Version had been written, Larson and his various collaborators had been working on Rent for approximately six years. Id. (E1801)
Reaction to the Workshop Version
At the time of the Workshop Production, Nicola still believed that Larson was "not a playwright." (T570) According to producer Seller, the play was "still a mess." (T72-24) Morgan Jenness, formerly Associate Artistic Director of NYTW and a longtime colleague and supporter of Larson's who had helped him arrange a reading of one of his previous works at the Public Theater, where she was Director of Play Development, attended the Workshop Production at Nicola's request and gave Nicola the following response:
Based upon what I saw of this version, I could tell that it had major problems. Its "book," or storyline, to put it bluntly, was a mess. The scenes did not flow naturally from one to another. The script had no narrative drive or engine. There were serious structural defects.
(E208-09)
Jenness further testified that Nicola told her, following the Workshop Production, that he had serious doubts as to whether Larson, without a bookwriter or co-writer, would ever be able to remedy the defects in the script. (E210)
The negative reaction was seconded by two other experts whom the District Court credited, namely Dr. Susan Jonas ("Jonas"), another NYTW member who is a state official in charge of reviewing theater projects for grants at the New York State Council for the Arts, and Anne Cattaneo, Dramaturg of Lincoln Center Theater and a 20-year theater veteran who has assisted in the development of over 60 plays. (E273-91)
NYTW and Larson
Decide to Retain Thomson
Subsequent to the Workshop Production, Nicola continued to believe that there had to be, in his words, "someone who could shepherd Jonathan along through this next period." (E567-69) He decided to hire a new dramaturg, rather than a professional book writer, because he believed that Larson needed to work with someone "who was not an acknowledged co-author." (T594) In May of 1995, after interviewing several dramaturgs, Larson chose Thomson. (E633) In the words of director Greif, he and Nicola felt that Larson would benefit from a "close collaboration," and Larson "chose Lynn Thomson to be someone whom he could create a new draft with." Id. In the words of Nicola, Thomson was the person "who was going to be guiding this next draft." (E567-69) He admittedly "assumed" that her role would include writing. (E586-87)
At the time of contracting with NYTW, Thomson did not share that intent. (E307) Although she is a professor of advanced playwriting at New York University and had taught theater courses at many other institutions, and although she had assisted with the development of hundreds of plays as a professional dramaturg and director, she did not consider herself to be a writer at the time when she was retained to collaborate with Larson. Id. Her own practice as a dramaturg and director throughout her career of more than 20 years had involved asking questions and coaxing solutions out of playwrights, but not writing. Id.
In the one and only contract Thomson ever signed regarding her work with Larson, an agreement between her and NYTW, dated June 1995 (the "Thomson/NYTW Agreement"), there was no mention of, or allusion to, any copyrights or any issue of ownership with respect to the work which might result from Thomson's efforts. (E626) In any event, the agreement pertained only to the "production of RENT to be performed at New York Theater Workshop, 79 East 4th Street," and contained no mention of any other use of the play or its contents. Id.
By the terms of the Thomson/NYTW Agreement, Thomson agreed only to provide services, not copyrights. Id. The services were to "include, but not be limited to" services as a dramaturg. Id. For its part, NYTW agreed to pay Thomson "a fee" of $2000, "in full consideration of the services," and to provide billing credit to Thomson as "Dramaturg." Id.
At the time of contracting, Thomson had a rudimentary understanding of copyright law. Although she had no attorney, she was aware that copyright ownership occurs upon creation of a work and vests automatically in the creator(s). (E308) She believed (mistakenly) that ideas were subject to copyright. Id. She therefore intended that she would automatically have and retain copyright ownership of her dramaturgical ideas in connection with Rent. Id.
The Role of a Dramaturg
The term, "dramaturg," is defined (imprecisely) in major dictionaries as "a playwright."(3) Experts for both sides in this case agree that the dramaturg's role is wide-ranging and can include the role of co-writer or playwright. (E12, E29, E276, E278, E284-85, E210, E269-70, E140) Experts for Thomson, including Mark Bly, the Chairman of the Playwriting Department of the Yale School of Drama, confirm that the function of co-writer is one which dramaturgs perform often. (E29)
Experts for both sides agree that "it would be totally inaccurate to say that the term, 'dramaturg,' is synonymous with the term, 'editor.'" (E29, E229-30) Moreover, as confirmed by director Greif, producer Nicola, and others involved with Rent, Thomson was not just another of Larson's many collaborators. According to these witnesses, with respect to Rent, she was a "close collaborator" and an "important collaborator." (T576, T644-45)
Thomson's Working Relationship with Larson
Between early May and the end of October of 1995, Larson as principal author, and Thomson as secondary author, co-wrote what they designated as the October 1995 "new version" of Rent (the "New Version"). (E310) Virtually all of the re-writing was done by Larson and Thomson alone, in Larson's apartment. (E311)
In the collaborative relationship between Larson and Thomson, all decisions with regard to the contents of the script were made by consensus. (E319-20) Neither Larson nor Thomson gave any indication of regarding either of the two to them as having "the final say." Id. On the very rare occasions on which there were creative disagreements between them, sometimes Thomson deferred to Larson's wishes. Other times, Larson deferred to her. Id.
As Thomson contemporaneously reported to Craig Lucas (playwright, Larson collaborator, and witness), Larson and Thomson had an explicit discussion on the topic of co-authorship. (E321-22, E334, E213-14) Thomson told Lucas on at least three occasions, months before Larson died, and long before Rent had opened on any stage, that Larson was asking her to serve as playwright. Id. As Thomson recounted to Lucas, Thomson told Larson she was flattered that he was asking her to contribute actual language to the text, and Larson responded by saying: "Of course I want you to do that!" Id. Larson also told Thomson, "I'll always acknowledge your contribution," and "I would never say that I wrote what you did." Id. The District Court credited all of the testimony concerning these conversations and statements. (A25-26)
Larson took the unprecedented step of crediting Thomson in all the materials which they co-wrote. (E323) In particular, he credited Thomson on the copyright page at the end of each script, immediately below the previously agreed-upon credit for the play's originator, first script writer, and royalty co-participant Aronson. Id.
After Larson began working with Thomson, he never wrote or signed any document referring to himself as sole author. He also never stated, in any context, whether in words or substance, that he was the sole author of Rent, or that he had written all of Rent. Likewise, after his death, he was never credited with sole authorship in any of the programs of Rent.
Larson also never asked for, and apparently never contemplated, any agreement from Thomson stating that her contribution would be a "work made for hire," or that she would otherwise own no copyrights or transfer them to anyone. (E335) On each occasion when NYTW and the Larson Heirs attempted to obtain such an agreement, Thomson steadfastly refused to sign, standing by her rights as a co-creator of Rent, even before it opened. (E1102-03, E956, E330-31)
For the following reasons, Thomson saw no need for a contract with Larson:
(a) In the not-for-profit context of NYTW, neither Larson nor Thomson ever contemplated that Rent would ever earn money, much less move to Broadway.
(b) Thomson felt assured that in the seemingly unlikely event that Rent were to become a financial success, Larson would share a portion of the proceeds and credit with her. Larson openly and frequently acknowledged her contribution to Rent. This further assured Thomson that she would not be forgotten.
(c) Thomson knew that she had never signed away any of her rights to the copyrightable expressions which she was creating.
(d) Lastly, it never occurred to Thomson that Larson would suddenly die, without any opportunity to leave instructions concerning the play. (E322-23, T366-67, T180-81)
Thomson's Contribution to Rent
It is not disputed that Thomson's contribution to Rent was enormous. Larson himself told one of his collaborators, playwright Craig Lucas, with reference to Thomson, that "she's transformed the show." (T232, E213) In a further reference to Thomson, Larson told Barbara Pitts, who was dating Larson at the time of his collaboration with Thomson, that he was "amazed at the large amount of material she was contributing to Rent," that he was "beholden to her for those contributions," and that with respect to her involvement, Rent was "in good hands." (E300-02)
Larson told his personal assistant, George Rios, that he had been "working intensely" with Thomson, and that she had been "enormously" helpful. (E1158) NYTW's Nicola wrote in a letter to Thomson that he was "so grateful" for her contribution, and that "it's up there [on the stage] every night." (E19)
Director Greif, who, in lauding Thomson's contributions, was moved to tears, agreed that she had an "enormous impact on the script," and that "she contributed significantly to the text." (T641-42, T654) During one of the Broadway rehearsals of the play, at the moment when it was announced that Rent had won the 1996 Pulitzer Prize for Drama, Greif took a microphone and immediately stated, to the cheers and applause of those present, that "now is a good time for all of us to thank Lynn Thomson, who helped make this possible." (E332-33)
Producer Seller told Thomson, in a statement which he conceded he could not deny making, that "without her help, the prize would not have been awarded to Rent." (T75-79, E333)
Evelyn McDonnell, a professional journalist who interviewed approximately 70 persons associated with Rent (with the exception of Thomson) in connection with the preparation of a Larson family-authorized book on the creation of the play, concluded in her draft for the book that Thomson and Larson were engaged in "writing and rewriting RENT." (T491-94) In the published version of the book, which was controlled by the Larson family, this reference was deleted. Id.
(After McDonnell contradicted her declaration presented by the Larson Heirs, admitting under questioning by the Court that the deletion "might have something to do with the lawsuit," the Court noted the failure to produce a credible witness to explain the deletion, stating as follows: "it is reasonably clear that she was told to take it out, that [publisher] Weisbach is the author of the instruction to take it out, that he is doing the book for the Larson family, and nobody is here to explain how the instruction got given." T498-502, T709-10)
Thomson's contributions were specific, and they were many. Of the 2,542 lines in the final script of Rent, 1,212 were entirely rewritten or substantially altered by Larson and Thomson together. (E317) Approximately 48 per cent of the final script is either totally new or substantially different, in comparison with the Workshop Version with which Thomson was presented at the beginning of their collaboration. Id. Of the 10,890 actual words in the final script, 1011, or approximately 9 per cent, were contributed exclusively by Thomson. (T473-74, E185-204, E1452-1555) Numerous examples of Thomson's contributions of language, plot, theme, character details, structure and other elements of Rent are set forth in Thomson's direct testimony, none of which was disputed by the District Court, as well as in the Exhibits to her Amended Complaint. (E310-17, E346-57, E184-204)
The New Version Is Completed
The culmination of the rewriting done by Thomson and Larson from May through October 1995 was the New Version. (E310) As confirmed by Greif, both Larson and Thomson conveyed a sense that they regarded it as "their" draft. (T640-41)
According to the only two experts who have addressed the subject, Anne Cattaneo of Lincoln Center and Susan Jonas of the New York State Council on the Arts, the New Version amounted to a radical transformation of the play, such that an unproduceable draft effectively was turned into a major hit. (E273-91)
In late September, before seeing the new draft, Nicola and Greif had met and discussed putting an end to the project altogether. (T571) Nicola had told Greif, "I'm not sure we can go ahead with this.... I need to feel more confidence in where the text is." Id. In a memorandum to Greif on the same subject, Nicola stressed that "we won't go ahead with a production without some sort of viewing of this draft well before the first rehearsal." (E16) Nicola testified that at the start of the sing-through of the New Version, he felt "that it was a moment to decide whether we were going to go forward or not...." (T573-74) As a result of hearing the New Version, Nicola concluded that the production could go forward. Id.
The vast majority of the lines of the New Version remain in the final script as it is performed on Broadway. (E324) As director Greif stated, referring to the New Version, although he and Nicola "fiddled" with it, "that draft is very close to what we have now...." (T635) As stated by expert Cattaneo, the changes to the New Version were "in the realm of fine-tuning, rather than reconceiving or reshaping." (E280)
In any event, no changes to the New Version occurred without Thomson's participation. (E325) Nicola testified that Thomson had "lost her objectivity," and that in addition to his task of persuading Larson to make changes, he now was required to persuade Thomson. (T575-76)
Events After
Larson's Death
On January 25, 1996, without warning, Larson died. (E326) Two weeks later, Rent opened Off-Broadway, to much critical acclaim. Id. Many favorable reviews highlighted aspects of the show that reflected Thomson's contributions. Id. The New York Times noted, for example, that "Mr. Larson has proved that rock-era song styles can be integrated into a character-driven story....," and that, in comparison with the musical, Hair, "Mr. Larson has provided a story line and ambitious breadth of technique miles away from Hair, with its funky, loosely plotted patchwork of countercultural ditties and ballads." (E326-27)
In a later article, The Washington Post, quoting Thomson's lyrics verbatim, emphasized "the musical's central question: 'How can you connect in an age / where strangers, landlords, lovers / your own blood cells betray? / What binds the fabric together / when the raging, shifting winds of change / keep ripping away?'" Id. Several other major media reviews also attributed Rent's commercial and artistic success to elements created by Thomson. (E327-28)
In early March of that year (1996), after a period of grieving the loss of Larson, and of allowing others to grieve, Thomson began what ultimately became a nine-month effort to seek compensation and title page dramaturgical credit for her own contributions to Rent, without resorting to litigation. (E329) Broadway producer Seller advised Thomson that while he agreed that she should receive royalties, this was a matter which she would have to take up with the Larson Heirs, since any share owed to her would have to come from the share belonging to the writers. (E329, T75)
During the period after Thomson first began to seek a percentage of royalties, Rent opened on Broadway and won numerous awards, including the Pulitzer Prize for Drama, Tony Awards for Best Book and Best Musical, and many others. (E332) After Thomson first asserted her claim, the play started to become one of the most financially successful shows ever staged. (E1087) For her dramaturgical services, Thomson received $2000 from NYTW. (E303) For all of her tangible contributions to Rent as described above, she has received nothing. Id.
Further relevant facts are set forth in the direct testimony of Thomson (E303-62) and a number of her witnesses (which the District Court directed to be in the form of affidavits), listed as follows:
(a) Mark John Bly, Chairman of the Playwriting Department at the Yale School of Drama, this country's most preeminent educational institution in the field of theater arts, (E27-33)
(b) Tony Kushner, the Pulitzer Prize-winning playwright who wrote Angels in America, and who serves on the Executive Council of the Dramatists Guild, (E217-19, T373)
(c) Craig Lucas, a collaborator with Larson and one of this country's most accomplished playwrights, (E212-16)
(d) Barbara Pitts, who dated Larson during the time when he and Thomson worked on Rent, (E300-02)
(e) George Rios, Larson's personal assistant, (E1157-60, E841-42)
(f) Edward Rosenstein, Larson's best friend, (E126-29)
(g) Morgan Jenness, an NYTW member and one of Larson's longtime supporters and colleagues, (E208-211)
(h) Susan Jonas, Arts Program Analyst at the New York State Council on the Arts, Co-Editor of Dramaturgy in American Theater, NYTW member and witness to aspects of Rent's development, (E283-91) and
(i) Anne Cattaneo, chief dramaturg at Lincoln Center and professor of theater history at the Juilliard School. (E273-82)
Rather than repeat all of the relevant facts here, we respectfully refer the Court to the affidavits.
ARGUMENT
Summary
As Professor Goldstein stated in his recent analysis of the Childress decision, "[t]he plain language of section 101's definition of a joint work -- uncontradicted by its legislative history -- leaves little room for the argument that the authors' requisite intention bears not on the fact that their contributions will merge into a unitary whole, but rather on the legal conclusion that they will be joint authors." P. Goldstein, Copyright, § 4.2.1 at 4:11-12 (1997). Assuming that Childress is interpreted to support such an argument, Professor Goldstein prophesied that the decision "ultimately promises greater disorder than it would replace." Id. at 4:12.
In Thomson v. Larson, the prophecy has been tragically fulfilled. The District Court's holding that the requisite authorial intention not only bears upon, but consists entirely of, legal conclusions about "a right to share in the proceeds, a right to control the work, [and] a right to be recognized as the author," would undo nearly a century of case law and two decades of statutory law on definition of joint works. Indeed, in the judicial history of the United States, this apparently is the first case in which a contributor of non-de minimus copyrightable material has co-created a joint work within the statutory definition, yet has been denied the rights of joint authorship.
By contrast, it has been held on multiple occasions, in decisions of District Courts, Circuit Courts, and the Supreme Court, that legal co-authorship can and should be found where two artists intentionally have merged their contributions into a unitary whole and have not stipulated to some other relationship, regardless of whether they intended to share rights in the work. These courts, including the Supreme Court and this Court, have so held, even in situations where at least one of the contributors subjectively considered himself to be the sole author and the sole owner of all rights.
Under the long-established and still-controlling case law, the plain language of the copyright statute itself, and the unambiguous legislative history, an artist is not stripped of her co-authorship rights, simply because her collaborator did not know, or intend, that she would have them. In Childress, this Court stated that a finding of co-authorship "does not require an understanding by the co-authors of the legal consequences of that relationship." 945 F.2d at 508-09.
Perhaps the ultimate irony of the District Court's formulation, and the ultimate disorder which would result if it were to be upheld, lies in the fact that while depriving co-creators of the non-exclusive rights to which they are entitled under the law of joint works, it would transform what otherwise would be regarded as a single joint work into a grouping of separately identified segments, to which the respective contributors would have exclusive rights under Section 106. Each contributor of non-de minimus copyrightable material therefore would have the statutory right, for example, to enjoin the use of his or her own contribution. Such a result would give new meaning to the term, "Solomonic." In the case here, it would grant to Thomson rights which she has never sought, and which she, like any other co-creator who cares about the integrity of the greater whole, would be loathe to enforce.
If the District Court's decision were to be upheld, the result would be not only extreme but inevitable. No legal scientist has ever discovered a "black hole" in the Copyright Act, into which a creator's rights to his or her creation are vacuumed and obliterated. There is no place where copyrightable subject matter meets anti-matter and disappears. Because it is undisputed that the fair use and work-for-hire provisions do not apply here, if Thomson has no rights as a joint author, then she must have all of the rights of a sole author with respect to her own contribution.
Although an affirmance could cause great disorder, conversely, a reversal would result in no disorder. Expert and fact witnesses alike, even witnesses for the defendants, have testified that the vast majority of dramaturgs are employees. Their contributions therefore are automatically works-made-for-hire. Judge Kaplan himself stated, "I do not view this case as a test case on the role and rights of dramaturgs...." Moreover, even witnesses for the Larson Heirs have conceded that all or virtually all theatrical collaborators work under contracts -- contracts which either already do contain, or easily can be modified to contain, work-for-hire or copyright assignment provisions.
As Professor Goldstein noted, the best solution to any perceived problem of artistic contributors obtaining unintended legal rights "is for all of the work's contributors to enter into an express agreement allocating full ownership rights to the intended recipient." Goldstein, supra, at 4:12. Another possible solution, not applicable here (since Thomson received no payment from Larson and repeatedly refused to sign copyright assignments presented to her by others), is to find an implied "transfer of ownership from one to the other based on the nature of their relationship." Id.
Where there is no contract and no express or implied assignment or license, however, a deprivation of a co-creator's rights as a joint author is simply not a "solution" which the law allows. As stated by Judge Learned Hand in the still-followed case of Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 267 (2d Cir. 1944), probably the most cited decision in the law of joint works, a decision which was adopted expressly by Congress, "unless [co-contributing parties] stipulate otherwise in advance, their separate interests will be as inextricably involved, as are the threads out of which they have woven the seamless fabric of the work." (Emphasis added.) To attempt to unweave and extricate those "separate interests," replacing non-exclusive joint authorship rights with the exclusive rights of those who create their own copyrightable material, leaving each such contributor with the right to rip the fabric into shreds, is no solution at all.
This Court went out of its way in Childress to warn that "care must be taken to ensure that true collaborators in the creative process are accorded the perquisites of co-authorship." 945 F.2d at 504. Lynn Thomson was a "true collaborator." At the specific request of Larson, during a nine-month period of very intensive work, she developed a new theme, contributed extensively to a new plot, created many new character elements, and wrote a significant portion of new dialogue and new song lyrics, co-creating what she and Larson expressly designated, on its title page, as a "new version" of Rent. In the words of Larson himself, "she transformed the show."
At trial, Thomson proved not only that she and Larson collaborated with the statutory intent that "their contributions be merged into... a unitary whole," but also that they expressly and openly referred to themselves as doing so. As no editor, advisor, director, producer, actor, researcher, or any other assistant could ever do, Thomson proved (a) that Larson expressly asked her "to write," (b) that she and Larson put the previous draft aside and "began at the beginning," (c) that they together engaged in a "radical transformation" of the play, (d) that they regarded the new version of the script as "theirs," (e) that they acted "as a creative unit" in relation to the other persons involved with the play, and (f) that Larson credited Thomson, in a copyright notice and elsewhere, in a manner which both legally and practically signified at least partial authorship.
Thus Thomson has proved, not only that she and Larson have met the statutory definition of co-authors, but also that they have more than met the Childress requirement that they must "entertain in their minds the concept of joint authorship" (which "does not require an understanding by the co-authors of the legal consequences of that relationship"). 945 F.2d at 508-09. Given the above-listed facts, none of which were disputed by the District Court, there can be no doubt that Jonathan Larson had to have regarded Lynn Thomson as a co-author, putting aside, as we must, the legally irrelevant question of whether he expected or intended that any legal consequences would flow from her activities in that role. How can a writer expressly ask another person to co-write, and then sit in a room, co-writing with that person over a period of more than seven months, and not at least "entertain in his mind the concept of joint authorship"?
The District Court itself conceded that "there has been plenty said on both sides to make a horse race out of this," and that Thomson "might very well have a very appealing argument for the Second Circuit or the Supreme Court." (T5, T726) For all of the reasons stated above, and for the additional reasons set forth in the remainder of this brief, the District Court's final judgment must be reversed.
POINT ITHE DISTRICT COURT'S DENIAL OF
STATUTORY CO-AUTHOR STATUS TO A
CO-CREATOR OF RENT IS CONTRARY TO
THE COPYRIGHT ACT, THE LEGISLATIVE
HISTORY, AND THE CONTROLLING CASE LAW
As a preliminary matter, it should be noted that under the Copyright Act, and given the District Court's factual findings, it is plain that the New Version of Rent is a derivative work, derived from the previous Workshop Version. See, Weissmann v. Freeman, 868 F.2d 1313, 1317 (2d Cir.), cert. denied, 110 S. Ct. 219 (1989). This has never been disputed. Id. The "critical" issue in deciding whether Larson and Thomson were joint authors is their intention, "at the time the writing [was] done...," and because Rent is a derivative work, "the intent regarding... contributions to the underlying preexisting work is not relevant...." Id. at 1320, 1318.
It is with regard to the requisite nature of this intent that the District Court erred. The District Court's holding that Thomson was required to prove that Larson intended for her share rights in the play is unprecedented in, and flatly contrary to, a consistent body of law on the subject of joint works from 1915 to the present, both judicial and statutory. The standard of review with respect to this purely legal issue is de novo. Ezekwo v. New York City Health and Hosp. Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 502 U.S. 1013 (1991). The judgment below therefore must be reversed.
A. The Still-Controlling Pre-1976 Case
Law Holds that Co-Contributors Need Not
Demonstrate Any Intention on the Part of
Any of Them to Share Rights, in Order To
Be Co-Authors Under the Law of Joint Works
The first American definition of the intent necessary for joint authorship was adopted by Judge Learned Hand in the still-followed decision of Maurel v. Smith, 220 F. 195 (D.N.Y. 1915), aff'd, 271 F. 211 (2d Cir. 1921): "if two persons agree to write a piece, there being an original joint design and the co-operation of the two in carrying out [a] joint design, there can be no difficulty in saying they are joint authors of the work, though one may do a larger share than the other." Id. at 199 (citation omitted).
In Maurel, Judge Hand found joint authorship without regard for whether the authors ever intended that they would share rights in the work, and indeed, in the face of evidence that they had no such intent. 220 F. at 198 and 201. The Court held that because the three contributors had "the understanding that all three were contributing to a single joint operatic performance," they "accepted whatever the law implied as to the rights and obligations which arise from such an undertaking." Id. The Court held that "[w]hen several collaborators knowingly engage in the production of a piece which is to be presented originally as a whole only, they adopt [the requisite] common design..., and unless they undertake expressly to apportion their contributions, they must share alike." 271 F. at 200.
The Court in Maurel disregarded the fact that the defendant contributors "took out the statutory copyrights" for themselves, to the exclusion of the plaintiff contributor. Id. at 201.
Three decades after Judge Hand wrote the first definition of joint works in Maurel, as an appellate judge he replicated his reasoning for this Circuit in Marks, supra, which is probably the most cited decision in the law of joint works. See, e.g., Weissmann, supra, 868 F.2d at 1319 ("the law on this point is set forth in [Marks]"); Childress, supra, 945 F.2d at 504 (Marks contains the "formulation for this Circuit").
In Marks, this Court found a song to be a joint work of authorship co-owned by the lyricist and the assignee of the composer, even though the lyricist, far from intending that the composer or the composer's assignee would have any legal rights in the song, applied for all of the renewal copyrights in his own name alone, and actually sued the composer's assignee for infringement. Id. at 266-67.
Reiterating the holding of Maurel, this Circuit in Marks disregarded the lyricist's intention to be regarded as sole owner of all legal rights and held that "if one of several authors took out the copyright in his own name upon a joint work, the copyright was valid, but the copyright owner held it upon a constructive trust for the other authors." Id. The Court further held that for a finding of joint authorship, "it makes no difference whether the authors work in concert, or even whether they know each other; it is enough that they mean their contributions to be complementary in the sense that they are to be embodied in a single work to be performed as such." Id.
This Court in Marks again held that in such a situation, if contributors wish to avoid being deemed joint authors, they must define an alternative relationship by contract. Id. In the often-quoted words of Judge Hand, "unless they stipulate otherwise in advance, their separate interests will be as inextricably involved, as are the threads out of which they have woven the seamless fabric of the work." Id.
B. The Maurel and Marks Holdings Were
Adopted by Congress and Embodied in the
First Statutory Definition of Joint Works
The Maurel and Marks decisions were adopted by Congress when it established the first statutory definition of joint works, requiring that the contributors need only have "the intention that their contributions be merged...." 17 U.S.C. § 101. The drafters' intention to adopt the holdings in Maurel and Marks is plainly stated:
We would not go as far as the theory of the Twelfth Street Rag decision [where the Court found a song to be a joint work despite no intention to merge contributions], but would adopt the test laid down in the earlier line of cases -- that a joint work is one created by two or more authors who intend to have their contributions joined together as a single work.
Copyright Law Revision, Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess. 90 (Comm. Print 1961).
In adopting the Maurel and Marks decisions, and in formulating the corresponding definitional language of Section 101, Congress thereby rejected any notion that co-contributors must intend to share their rights in order to be designated as statutory co-authors. As further explained in the House and Senate Reports, cited in both Weissmann and Childress, supra, the "touchstone" of the statutory definition "is the intention at the time the writing is done that the parts be absorbed or combined into an integrated unit." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5736; S.Rep. No. 473, 94th Cong., 2d Sess. 103-04 (1975) (emphasis added).
The statutory language ultimately chosen by Congress was the product of a careful compromise. Some drafters argued that "whether a work is a 'joint work' or not should have nothing to do with the intentions or mental state of the authors who worked on it." Preliminary Draft for Revised U.S. Copyright Law, Copyright Law Revision, Pt. 3 (1964). Others, such as the Register of Copyrights, argued that to define a work as joint "without regard to the authors' intention that they be merged or anything else, doesn't appear to me to make any practical or theoretical sense." Copyright Law Revision, Pt. 5, 1964 Revision Bill With Discussions and Comments, 89th Cong., 1st Sess. 144 (Comm. Print 1965). Apparently no one argued, as the Larson Heirs and the District Court argue now, that the requisite intention should pertain in any sense to rights in the work.
Although Congress expressly provided in the 1976 Act that in the case of specially ordered or commissioned works, the parties must "expressly agree in a written instrument" in order for the work to be considered a work for hire, (17 U.S.C. § 101), absolutely no such requirement was ever imposed for the establishment of joint works. To the contrary, two later proposed Senate Bills which would have contained such a requirement, S. 1223, 100th Cong., 1st Sess. (1987), and S. 1253, 101st Cong., 1st Sess. (1989), were opposed by the Register of Copyrights,(4) and obviously never became law.
Instead, the law remains the exact opposite. The absence of a contract can require a finding of joint authorship. As stated in the leading and still-followed case of Marks, "unless [co-contributing parties] stipulate otherwise in advance, their separate interests will be as inextricably involved, as are the threads out of which they have woven the seamless fabric of the work." 140 F. at 267 (emphasis added).
C. The Post-1976 Decisions of the Supreme Court,
the Fifth Circuit Court, and the Southern
District Court Continue to Make it Clear
that Joint Authorship Exists Regardless
of Legal Intentions, and Can Be Found Even
Where One of the Contributors Intends To
Be the Sole Owner of All Rights to the Work
There is not even the slightest hint, whether in the Congressionally-approved decisions, in the legislative history, or in the Copyright Act itself, that joint authors must intend to share rights to their work. If there could be any thought that such a requirement could be imposed, it would have to be dispelled by a series of cases decided after passage of the 1976 Act, including decisions of the Supreme Court, the Fifth Circuit Court and the Southern District Court.
In Community for Creative Non-Violence v. Reid, 846 F.2d 1485 (D.C. Cir. 1988), aff'd, 490 U.S. 730 (1989), both parties maintained that they were the sole authors and exclusive owners of a modern nativity scene, in which homeless persons were depicted in place of the Holy Family. Reid, a sculptor, created the life-sized figures, and CCNV, a homeless advocacy group, created a steam grate and platform pedestal with special effects. CCNV made specifications, had control over details of the work, and directed Reid's efforts. Both Reid and CCNV's representative filed their own copyright registrations for the work, each claiming sole authorship. In addition, at the base of the work, Reid placed a copyright notice: "copyright James Earl Reid, Sculptor '85." 846 F.2d at 1488, 1495-97; 490 U.S. at 734, 752-53.
CCNV alleged that the work was a work for hire, because Reid was allegedly its employee. (The Larson Heirs initially made the same allegation in this case, arguing that Thomson was an employee of NYTW, but they later retreated from that untenable position. It is now undisputed that Thomson worked solely as an independent contractor.) The Court of Appeals for the District of Columbia Circuit ruled that the work in question was not a work made for hire, because there was no express agreement to that effect, but found that because the work "appears to have been treated by those who labored to create it as a unitary whole," it could be "a textbook example of a jointly-authored work," (846 F.2d at 1496-97), despite the fact that neither party regarded it as such. Because the number and role of contributors other than the parties was not clear, the Court remanded the case to the district court "to determine if there are any other parties who might qualify as... authors...." Id. at 1498.
In affirming the decision of the Court of Appeals, the Supreme Court discussed the issue of joint works for the first and only time in its history. The Court stated unanimously, in what it referred to as a holding, that the two self-alleged sole authors could be held to be legal joint authors, and they "would be co-owners of the copyright in the work," if it were to be determined that they "prepared the work 'with the intention that their contributions be merged into inseparable
or interdependent parts of a unitary whole.'" 490 U.S. at 752, quoting, 17 U.S.C. § 101.
Because the ultimate determination of whether the parties were co-authors had been remanded to the District Court, and because no appeal had been taken from the remand order, there was no occasion for the Supreme Court to "pass judgment" on the issue. 490 U.S. at 753 n32. Nevertheless, the Court received at least nine briefs from parties and amici curiae in which the issue was raised with much fervor, and the Court most certainly did address the issue. (PX GGGG)(5)
CCNV, together with hundreds of manufacturers and other employers, including AT&T, IBM, Xerox, Bell Atlantic, Citicorp, and Exxon, argued strenuously against the allowing of a finding of co-authorship, making arguments remarkably similar to those raised by the Larson Heirs. Id.
CCNV, backed by its allies, argued that "only one party -- the one who exercises creative control and supervision -- is the copyright owner of the resulting work." Id. It argued that if subordinate collaborators could be found to be co-authors, a "fractionalization of copyright" would result, in that many "'assistants' and others" could come forward to claim co-authorship. Id. It argued that "by permitting multiple parties to claim copyright in a single work, without regard to whether their efforts were controlled by another, the Court of Appeals has adopted an approach which will cause significant uncertainty as to the identity of the copyright owners of a work." Id.
Using arguments nearly identical to those of the Larson Heirs, CCNV's corporate amici urged that if the Supreme Court were to affirm the Court of Appeals decision in favor of the joint authorship theory, there would be "a proliferation of joint authorship claims," and that as a result, the collaboration necessary for creativity would be crippled. Id.
On the other side of the joint work argument was sculptor Reid, who in the alternative had sought a finding of co-authorship, backed by an amici curiae coalition of over 50 authors' and artists' organizations, including the Authors Guild, PEN American Center, and the Songwriters Guild of America. Id.
In an argument which has equal force against the position of the Larson Heirs and NYTW, who continue to make the after-the-fact assertion that Thomson's contribution is somehow subject to an implied, blanket license or assignment, Reid pointed out that "it is quite hypocritical for CCNV to come before this Court and argue that for artists to be able to make an after-the-fact claim of joint authorship in a work is disruptive, yet seek to reserve for themselves the after-the-fact right to claim copyright ownership under the work for hire doctrine." Id.
After considering the many briefs, the Supreme Court unanimously rejected the arguments against a finding of joint authorship, and it did not do so lightly. It went out of its way to hold, without equivocation, that if the requisite intent to merge contributions were to be found, CCNV and Reid "would be co-owners of the copyright in the work," even though both parties considered themselves sole authors, and even though Reid, while working on the sculpture, had been under the control of his principal collaborator, CCNV. 490 U.S. at 753.
If Reid and CCNV could be joint authors, there can be no doubt that Larson and Thomson are joint authors. By contrast, if the District Court's formulation in Thomson were an accurate statement of the law, the sculptor in Reid, instead of winning, would have lost. He never could have proven that CCNV, which filed a copyright registration as sole author and insisted on full rights of control over the work, intended to share any rights with him. If the District Court's holding in Thomson were an accurate statement of the law, the Reid decision would have to be regarded as blatantly wrong. The warring contributors in Reid could not possibly be legal co-authors under the District Court's requirement that both contributors must intend for each other to share in rights to the work.
The District Court's formulation is also flatly contrary to the holding in Easter Seal Soc. for Crippled Children & Adults, Inc. v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987), cert. denied, 485 U.S. 981 (1988), another case of co-creation, where the Fifth Circuit Court stated that "[a]lthough the parties have refused to acknowledge it... it seems clear to us that [their contributions] were interdependent joint works of authorship." Id. at 337 (emphasis added). In Easter Seal, where the contributions of one party were merged with those of another in a videotaped parade scene, the Court ignored the parties' lack of intentions to share rights and found it dispositive that they "worked cooperatively... to create the field tapes." Id.
The same rule was followed by the Southern District Court in a decision authored by the Hon. Charles S. Haight, Jr., the same judge whose decision in Childress was affirmed and praised by this Court. In Strauss v. Hearst Corp, 8 U.S.P.Q.2d 1832 (S.D.N.Y. 1988), the District Court held that a magazine article was a joint work, notwithstanding the fact that one of the two contributors emphatically alleged the opposite, testifying that "such joint ownership was never discussed with me, and I would have never consented to it if it had been."
There is no way around it. To uphold the District Court's decision in Thomson is to declare that the decisions of the Supreme Court, this Court, the Fifth Circuit Court, and the Southern District Court, in Reid, Marks, Maurel, Easter Seal, and Strauss, are all clearly wrong. Yet they are all clearly right. Half of them were adopted by Congress, and the other half were rendered in conformance with that adoption. The District Court's decision must be reversed.
D. The District Court's Holding
Is Also Contrary to Childress,
Which Does Not Change the Law
The District Court's holding is also contrary to Childress, in which this Court stated unequivocally that a finding of co-authorship "does not require an understanding by the co-authors of the legal consequences of that relationship." 945 F.2d at 508. The District Court further has ignored the Childress Court's warning that "care must be taken to ensure that true collaborators in the creative process are accorded the perquisites of co-authorship." Id. at 504.
Although the Childress decision does involve the rejection of a claim of co-authorship with respect to a play, the facts are wildly inapposite. In Childress, actress Clarice Taylor apparently wrote a script on the subject of the life of Jackie "Moms" Mabley, and had attempted to market it, but could not get it produced. (E172) Taylor asked the plaintiff, Alice Childress, an experienced playwright, to save the project by writing another script. Id. From that point on, the facts of Childress diverge radically from those in Thomson.
In Childress, (a) actress Taylor, who alleged joint authorship, wrote "only one line of script" with respect to the version of the play at issue, (b) she admitted that her contribution essentially was "researching while [the playwright] is writing," (b) playwright Childress, by contrast, had "always insisted upon her [Childress's] status as the sole author" and accordingly had refused to sign an agreement proposed by Taylor which would have provided that the play would have been jointly owned, (c) Childress had registered the copyrights in her own name, (d) there was "no evidence that [Taylor's contribution] ever evolved into more than the helpful advice that might come from the cast, the directors, or the producers of any play," and (e) despite all of the above, the actress took "a transparent copy of [the playwright's] copyrighted play" and produced it at another theater without permission, and without any credit to the playwright. 945 F.2d at 509; 20 U.S.P.Q.2d 1181 (S.D.N.Y. 1990).
Ironically, even in the infringing script which Taylor used, she gave authorship credit only to Ben Caldwell, another playwright whom she had retained. 945 F.2d at 503. Taylor credited herself only with the words, "Concept by Clarice Taylor." (E173)
This Court upheld a grant of summary judgment for Childress, holding that for legal joint authorship to exist, not only must the work in question be created by two or more persons, but also "some distinguishing characteristic of the relationship must be understood" by the creators, and apparent at least by "inference," in order to show that they "entertain[ed] in their minds the concept of joint authorship" (even though it "does not require an understanding by the co-authors of the legal consequences of that relationship"). 945 F.2d at 508-09.
The Court in Childress neither stated nor implied that co-authors must refer to each other as such, or for that matter, that they even need discuss the concept of joint authorship at all. The Court stated specifically that "joint authorship can exist without any explicit discussion of this topic by the parties." Id. The Court did not overrule its distinguished holdings in the Marks and Maurel cases, nor did it purport to rewrite the definition of joint works in the Copyright Act. The Court certainly did not presume to reject the Supreme Court's holding in Reid, supra, that co-authorship can be found among contributors who each intend to be the sole authors under the copyright statute and the sole owners of rights to the work in question.
Rather, the decision in Childress expressly reflected a concern that if less-than-compelling claimants such as Taylor could prevail, then anyone who makes even a minimal contribution to the writing of a work could be deemed a co-author:
[Taylor's assistance] consisted largely of furnishing the results of research.... Taylor also made some incidental suggestions... and possibly some minor bits of expression. But there is no evidence that these aspects of Taylor's role ever evolved into more than the helpful advice that might come from the cast, the directors, or the producers of any play. A playwright does not so easily acquire a co-author.
Id. at 509, 504 (The Court must "guard against the risk that a sole author is denied exclusive authorship status simply because another person rendered some form of assistance.")
In the same vein, the Court cited the example of book editors, noting that although they may make "some" additions of copyrightable expression, "few editors and even fewer writers would expect the editor to be accorded the status of joint author...." Id. at 507.
Dramaturgs, as noted by experts for both sides, and contrary to the position espoused by the Larson Heirs, are not synonymous with editors. (E29, E229-30) Thomson's role in relationship to Rent was not even analogous to that of an editor. Her role bears even less resemblance to that of Taylor, the actress and researcher.
Although the Court in Childress imposed only a requirement that there be "some distinguishing characteristic" to reflect an intention which would distinguish co-authors from editors, research assistants, and the like, at least five sets of such characteristics were proven by Thomson. Because they all involve the question of whether Larson and Thomson possessed the requisite intention for statutory joint authorship, a mixed question of law and fact, the standard of review in relation to the District Court's findings on the subject is de novo. New Era Publications Int'l, ApS, v. Carol Pub. Group, 904 F.2d 152, 155 (2d Cir. 1990). The distinguishing characteristics are as follows:
1. A Major Copyrightable Contribution. Thomson made a non-de minimus contribution to Rent, greater than the "minor bits of expression" found in Childress, and great enough that it was found by the District Court to be not only copyrightable, but "major."
When two artists each have contributed major amounts of copyrightable expression to a work, we submit that this is an objective indication which, together with others, could support a finding that the artists regarded themselves as co-authors, or at least "entertained the concept of joint authorship." Thomson, unlike most if not all editors, contributed a very substantial amount of language, thematic elements, plot developments, character details, and other concrete expressions to the work in question -- an amount so substantial, both quantitatively and qualitatively, that as Larson put it, "she transformed the show."
2. Self-Conscious Co-Creating. In the course of Thomson's contributions, Larson and Thomson had conversations and otherwise made statements proving that they each were conscious that both of them were serving in the role of co-creator.
Thomson and Larson, as found by the District Court, had a conversation in which Thomson's new role as a co-writer was discussed explicitly, and in which Larson expressly stated that he wanted her "to write." (A25-26, E321-22, E334, E213-14) Larson also discussed his co-writing relationship with third parties, telling them that Thomson "transformed the show," that "she served by providing structure... [and] solutions," that he was "amazed at the amount of material she was contributing," that he was "beholden" to Thomson for her contribution, that with Thomson, Rent was "in good hands," and that "I have to give credit for [lyrics to one of Rent's most important songs, 'One Song: Glory'] to Lynn Thomson." (E212-16, E126-29, E300-02, E1157-60)
Similarly, Thomson contemporaneously told Lucas that at Larson's request, she was joining him in the role of "playwright." (E213-14) (This is a characterization more generous to Larson than that of NYTW producer Nicola, who testified that in his professional opinion, Larson was "not a playwright." T570)
Lincoln Center Executive Producer Bernard Gersten, who ostensibly testified as an expert for the Larson Heirs, made it clear that the "custom and practice" of the theater industry is that a co-author relationship is deemed to exist whenever an author intends to (and presumably does) share "the task" of authorship, regardless of whether the word "co-author" is used:
[T]here must be mutual intent to share a certain task, to share the task of authorship. Unless both agree, unless two persons, if we are talking about two, agree that they intend to be collaborators, intend to be co-authors, then there is only one author in the room.
* * *
I don't think that word ["co-author"] in itself is the key. I think what's key.... is that the author remains the author until the author says, "I really need somebody to collaborate on this work, and I invite you or I value you or I embrace you and I name you the co-author or something like the co-author."
(T151, T154-55)
It is uncontroverted that Larson expressly invited Thomson "to write." (A25-26, E321-22, E334, E213-14) It is uncontroverted that he valued her; that he embraced her talents; that she was his "close collaborator" and an "important collaborator." (T576, T644-45) It is uncontroverted that in the theater industry, whenever the material of a "collaborator" is used in a play, the term "co-author" is not only "like" the term "collaborator" -- it is synonymous with it. (T134) Accordingly, given the testimony of the Larson Heirs' own expert, there can be no doubting that the above-referenced statements and actions of Larson prove an intention of co-authorship.
This is further confirmed by the testimony of playwright and Larson collaborator Craig Lucas, to whom Larson announced, with reference to Thomson and Rent, that "she's transformed the show." Lucas further described Larson's credit of Thomson as follows:
I could glean from the tone of his voice, from his expression, from the way he looked at me, and the sobriety with which he said that sentence, that he was crediting Lynn with more than just helping him. He didn't say "she and I have transformed the show." He didn't say, "she helped me transform the show." He didn't say "she helped me better the show." "Transform" is a word that does not take a modifier. You can't partially transform something any more than you can be a little bit pregnant. "Transform" means that you change something into something new.
(T231)
The above testimony regarding Larson's unequivocal statements to Thomson and Lucas must be either true or false. If the testimony were false, it would be of no importance, other than as a possible basis for a charge of perjury. If the testimony is true, it is of infinite importance. The one thing that it cannot be is moderately important.(6) As found by the District Court, the testimony is true. Accordingly, there can be no doubt that Jonathan Larson not only "entertained in his mind the concept of joint authorship," but self-consciously and openly regarded Lynn Thomson as a co-author.
The above-cited, explicit conversations about co-writing, as well as the statements about "transforming" the work, would be extremely unusual, if not impossible, in an author-editor relationship. It is common knowledge that as a rule, neither editors nor authors have a self-conscious understanding that the editor is serving as a writer.
3. The "Their" There. The director of Rent testified that Thomson and Larson, in the course of interacting with the rest of the artistic team, acted "as a creative unit," and behaved as though they regarded the New Version of the script as "theirs." (T638, T640-41) He testified, for example, that after an argument among the team regarding an important scene change, the result was "mostly what Jonathan and Lynn wanted." (T638-39) Similarly, Jim Nicola, NYTW's artistic director, testified that during the collaborative process, Thomson (a) had lost her objectivity, (b) had become allied with Larson in defending their draft against the criticisms made by the other members of the team, and (c) had become another person whom, like Larson, Nicola was required to persuade in order for changes to be made. (T575-76)
It is also noteworthy that Larson never asked for, and apparently never contemplated, any agreement from Thomson stating that her contribution would be a "work-made-for-hire," or that she would otherwise own no copyrights or transfer them to anyone. On each occasion when NYTW and the Larson Heirs attempted to obtain such an agreement, Thomson steadfastly refused to sign, standing by her rights as a co-owner of Rent. (E1102-03, E956, E330-31)
By contrast, a book editor, at least as the role is commonly understood, provides objectivity in his or her dealings with the author and the book, does not regard the book as the editor's book, or as "their" book, and presumably would never object to a work-for-hire arrangement, in the unlikely event that it did not already exist by virtue of the editor's employment at a publishing house.
4. Billing or Credit. Thomson proved that Larson credited her in a manner which demonstrated that she had served as a co-creator.
In Childress, billing and credit were found to be "not decisive in all cases." 945 F.2d at 508. The Court recognized that in some situations, a contributor may receive unequal (or even non-existent) billing and still be a statutory co-author. Id. at 508 and n.7.
The case of Rent is clearly such a situation. Thomson, who quantitatively contributed approximately nine per cent of the play's language,(7) and who worked on it for nine months, as opposed to Larson's seven years, has never sought equal billing, or billing as anything other than a dramaturg, and she need not do so in order to be a statutory co-author. One of the Larson Heirs' own experts, Robert Brustein, admits that a credit as "dramaturg" can subsume that of "partial" author. (E262) Given that authorship of as little as five per cent of a work can qualify under the law as a contribution of a statutory co-author, any blanket requirement of equal billing or credit in order to qualify for joint authorship would defy common sense, as well as the law. Fishing Concepts, Inc. v. Ross, 226 U.S.P.Q. 692 (D. Minn. 1985); Fisher v. Klein, 16 U.S.P.Q.2d 1795, 1799 (S.D.N.Y. 1990) (joint work found where artist "contributed in small but distinct ways" to work of other artist who was "far and away the dominant one").
Experts for both sides in Thomson testified that title-page theatrical credits in particular can be misleading, and that they are used to hide collaborators as well as to identify them. (E29, E289-91, T223-25, T244-49, T135-40, E238-39, T59-60) Nevertheless, we agree with the District Court that billing is a factor which sometimes can provide a window from which to view indications of the presence or absence of co-authorship intentions.
In the Thomson case, Larson took the unprecedented step of crediting Thomson in all of the materials which they co-wrote together, and in particular, he credited her on a copyright page at the end of each script, adjacent to the credit for the play's originator, first co-author, and authors' royalty co-participant Billy Aronson. (E323) By doing so, he elevated Thomson and set her apart as a co-writer, distinguishing her role from that of every other collaborator and assistant involved with the theater workshop.
Despite considerable amounts of dramaturgical input from NYTW's Nicola, director Greif, previous dramaturg Greg Gunther, producers Seller and McCollum, NYTW Literary Manager Mandy Michelle, and Larson's parents and friends, much of which Larson allegedly followed to a large extent, in the dozens of scripts of Rent over the years he credited only himself, Aronson, and Thomson. (T74, T84-85, T88, T632-33, T565-67, T185, E735-65) NYTW's Nicola testified that among Larson's team of "close collaborators," Larson credited only Thomson. (T576-77)
Thomson proved with the testimony of seven of the most prominent theater experts in the United States, including both of the experts retained by the Larson Heirs, that the manner of Larson's unprecedented credit of her signified co-authorship.
Playwright, Larson collaborator, and expert witness Craig Lucas, who for six years served on the Executive Council of the Dramatists Guild, testified that he has been reading play scripts for approximately 20 years, including "probably every Tony Award-winning and Pulitzer Prize-winning play and manuscript," and that with the exception of Thomson, he has "never seen a dramaturg on a copyright page." (T241, T242, T244) He testified that scripts are the place where authors can freely credit those who "write or co-write" on a play. ("When it comes out of the writer's typewriter or computer, it is sort of their last say, because then it is going to fall into the hands of lawyers and publishers and theaters and managers....") (T252)
Lucas testified unequivocally that in his expert opinion, the manner of Thomson's credit meant that Larson "intended to credit her as a co-author along with Billy Aronson." (T242) He further testified that title page credits, by contrast, frequently do not include co-authors. (T225-26) As one his examples, he cited the following:
I once wrote a play called Blue Window. On all the playbills and in all the programs and in all the published scripts it says "Blue Window by Craig Lucas." But the play, a substantial portion of the play, is by a man named William Bolcom, who wrote a song, both words and lyrics. That material, which substantiates maybe 10 per cent of the play, earns him the right to be on the copyright page for the play, and he earns a percentage of my royalties....
* * *
In my experience, authors, writers, artists like to take credit for everything. I don't go around advertising the fact if an actor makes a suggestion and gives me a line that I put in a play, I don't say, oh, well, I didn't write that, you know, they wrote it. I want my name on it. So if I were to actually put on my own copyright page someone's name, be they dramaturg or usher, it would be an expression of my desire to credit that person for authorship.
(T223-24, T244)
Lucas further testified that Larson's desire regarding "author/composer" credit for himself "does not impact on whether or not [Thomson] was a co-author." (T248-49) Lucas testified that it is "standard practice" for writers to maintain a "public persona" which is different from "understandings between artists," and that this is another reason why title-page credits do not prove intentions regarding co-authorship. (T249) Lucas's expert opinion was corroborated by NYTW's Nicola, who testified, very tellingly, that the reason why NYTW retained Thomson, rather than a professional book writer, was that Larson "felt comfortable working with a dramaturg who [at that time] was not an acknowledged co-author." (T594)
Expert Witness Anne Cattaneo of Lincoln Center Theater, who teaches Theater History at The Juilliard School and has studied "thousands and thousands" of scripts as part of her professional duties for over two decades, offered the same expert opinion as that of Lucas:
I have never seen an author credit a dramaturg on the copyright page. It seems very significant to me, and I would wonder why Mr. Larson felt so strongly that Lynn Thomson's name needed to be there. There are credits, of course, in a program. Those credits are negotiated with the producers of the play. But the script is the only place that an author has to, in a free way, say what is on their mind.
* * *
The additional fact that Mr. Larson listed only the names of Ms. Thomson and lyricist Billy Aronson at the end of his scripts makes it even more apparent that Mr. Larson considered Ms. Thomson to be some sort of co-creator with respect to Rent. It is highly noteworthy that Mr. Aronson has been granted title page credit with respect to all Rent productions, together with a four per cent share of the playwright's royalties. Mr. Larson's credit of Ms. Thomson is even more notable in view of the fact, as I am told was learned in "discovery," that Larson received extensive dramaturgical and other help from James Nicola, Michael Greif, and Greg Gunther, yet did not ever credit any of them in any of his scripts.
(T215, E273)
Playwright and expert witness Jason Katims also testified, without a doubt, that "the only people who are credited in a script are the writers of a script." (T265)
Mark John Bly, Chairman of the Playwriting Department of the Yale School of Drama, supporting the above points, testified as follows:
I can state unequivocally that the function of the dramaturg can and often does include that of co-writer. As noted by Joel Schecter, the Chairman of the Theater Arts Department of San Francisco State University, for whom I once worked when he was the Editor of Theater magazine, "Collective authorship of plays is not uncommon, but is frequently unacknowledged. Broadway 'play doctors' who receive a salary for writing scenes credited to someone else have their non-commercial counterparts in the profession of dramaturgs."
(E29)
Expert witness Dr. Susan Jonas of the New York State Council on the Arts, an NYTW member who has taught theater-related subjects on the faculties of Princeton and numerous other universities, testified that Thomson's credit as "dramaturg" in no way supports any argument that she was not a co-author:
[T]he fact that Thomson was credited as "dramaturg" and did not receive equal billing with Larson in Rent's programs does not signify at all that she did not co-write the play. First of all... it is known that dramaturgs can and sometimes do co-write plays. Second, credits in the theater are frequently misleading or inaccurate.
One prominent historical example of how credits often do not convey the truth about the creation of a work is West Side Story. In Sondheim & Company, a book which I understand that Larson himself urged others to read, there is a detailed narrative of the story about Leonard Bernstein and Stephen Sondheim....
According to the historical account, Sondheim had been hired to "co-write" lyrics with composer Bernstein, who had been working on the project for some time, but had come to realize he could not do all that the show required. The collaboration apparently was very successful. As the musical was about to open on Broadway, however, according to the reported account, Bernstein observed that Sondheim was unhappy. He realized that the source of Sondheim's displeasure concerned billing. Although Sondheim had ended up writing the majority of the lyrics, he and Bernstein received equal credits for lyrics in the program. In what apparently was an act of great magnanimity, Bernstein arranged for later versions of the program credits to read: "lyrics by Stephen Sondheim," notwithstanding the fact that Bernstein was in fact the co-writer of the lyrics.
The scholarly work on the subject of the actual authorship of a number of plays credited to Bertolt Brecht provides yet another example of how... program credits can be misleading. John Fuegi, in his respected and exhaustive study, Brecht and Company, details the evidence that several women with whom Brecht worked (and sometimes lived) actually wrote significant portions of his plays. One of these, Elisabeth Hauptmann, reportedly authored at least 80 per cent of The Threepenny Opera, as well as other plays. For Threepenny she received a percentage of the authors' share of royalties, yet in many programs for the play, it has been billed simply as "by Bertolt Brecht and Kurt Weill," with no attribution at all to principal writer Hauptmann.
In short... credits are by no means decisive in determining authorship. They certainly do not indicate to what extent any given dramaturg has contributed to the writing of a play.
(E283, E289-91) (citations omitted)
The above-quoted testimony of experts Lucas, Cattaneo, Katims, Bly, and Jonas was uncontroverted. Indeed, it was supported by the testimony of both of the expert witnesses for the Larson Heirs.
As testified to by expert Robert Brustein, Artistic Director of the American Repertory Theater, and former Dean of the Yale School of Drama, (a) dramaturgs sometimes perform the role of playwrights and write scenes credited to others, (b) a credit as "dramaturg" can include the possibility of "partial authorship," (c) dramaturgs are not synonymous with editors, (d) contribution of language is "obviously part of the dramaturg's duties," (e) dramaturgs generally work under contract, and (f) in the theater industry, "people who contribute contractually to a given work of theater can be considered coauthors." (E225, E229-30, E239, E246, E262, E269-70)
Bernard Gersten, Executive Producer of Lincoln Center Theater, the only other expert retained by the Larson Heirs, testified (a) that the program credit, "book, music and lyrics by Jonathan Larson," says nothing about whether Thomson contributed substantial portions of the actual material in the script of Rent, (b) that in the case of A Chorus Line, for which Gersten was associate producer, the book and the lyrics came from tape-recorded statements of dancers who received authors' royalties but no credit whatsoever, (c) that in the theater, there is no need for the term "co-author" to be used in order for a co-author relationship to exist, (d) that the accepted industry definition of "author" includes "each dramatist, collaborator, adapter, book writer, composer, lyricist, [and] novelist" whose material is used in a play, (e) that "[d]ramaturgy combines a number of aspects of the construction [of plays]: the character[s], the story line, and even occasionally the language of a play," and (f) that dictionaries define a "dramaturg" as a "playwright." T134-40, T156-57.
Given the above-cited testimony of experts Lucas, Cattaneo, Katims, Bly, Jonas, Brustein, and Gersten, the District Court was plainly in error when it concluded that "the manner in which [Larson] listed credits on the scripts strongly supports the view that he regarded himself as the sole author." (A28)
The District Court was similarly wrong when it relied upon the inaccurate supposition that Thomson's name appeared "several inches away from the copyright line...." (A27) The District Court completely overlooked the fact that Larson placed his own name four and a half inches from the copyright line, as well as the fact that Thomson's name appeared less than two inches from the copyright line. (E205-207, E635, E746) Having made those errors, the District Court disregarded the clear statutory law on the subject, which states that a copyright notice includes (a) the copyright symbol or the word, "copyright," (b) the year of creation, and (c) most importantly for this case, given the District Court's view of the proof required for Thomson's claims, the names of any owners of copyright in the work. 17 U.S.C. § 401(b).
The District Court also overlooked the fact that in press statements distributed by NYTW, concerning the development of Rent, NYTW reported to the public that in 1995 "Jonathan and Lynn began reworking the book." (E10-12, T540-41, T601-02) NYTW's Managing Director, Nancy Diekmann, who personally edited these materials, testified without contradiction that in this context, "reworking" meant "rewriting," "restructuring," "clarifying the story line," "replac[ing] some songs," and "add[ing] songs." (T537) According to Diekmann, all of this NYTW "accurately" credited to "Jonathan and Lynn." (T540-41, T601-02)
In stark contrast to the above evidence, it is common knowledge, as a brief visit to any bookstore would confirm, that editors, unlike Thomson, usually receive no credit at all, much less credit in a manuscript, on a copyright page, and in a press release.
5. Facing the Empty Page. As confirmed by the testimony of Larson's best friend, Thomson and Larson put the previous draft of Rent aside and "began at the beginning." (E128) They co-created what they together called a "new version" of the play, which the District Court found to be a "radical transformation." (E310, A12) It is common knowledge that book editors are presented with manuscripts and edit manuscripts. They do not "begin at the beginning," and they do not co-create manuscripts.
Because the uncontroverted facts, recounted above, amount to a veritable wall of evidence separating Thomson's role from those of editors, researchers, and all other assistants, because the evidence proves that both Larson and Thomson, at the very least, "entertained in their minds the concept of joint authorship," and because Thomson was a "true collaborator" by any definition of that term, even the Childress holding requires that the District Court's decision be reversed.
POINT II
THE DISTRICT COURT'S
FORMULATION, IF UPHELD,
WOULD CAUSE LEGAL
AND PRACTICAL DISORDER
No other court besides the District Court in Thomson, whether pre-Childress or post-Childress, has ever held that an intention to share rights in a work must be proven in order to establish joint authorship. No court, not even those citing Childress with favor, has ever denied co-authorship status to someone who has contributed non-de minimus copyrightable subject matter to a work which meets the statutory definition of a joint work. Given the body of law cited in Point I, supra, if the District Court's decision were to be upheld, this Court would be setting a controversial precedent -- a precedent at odds with the Supreme Court decision in Reid and the Fifth Circuit decision in Easter Seal. Beyond that, it would amount to an overruling of this Court's own decisions in Maurel and Marks.
On a practical level, an affirmance of Thomson would abrogate not only the rights of Thomson, but also those of any collaborating artist who meets the definition of a co-author under current law, yet does not have a lawyer or a contract, has not been compensated for his or her copyrightable contributions, and is unable to prove that his or her collaborator intended for him or her to share in the rights to the work. We already have shown how such a decision would represent a legal assault on the rights of artist/contractors established in Reid, and how, if the District Court's interpretation were to become law, an artist such as the sculptor in Reid, instead of winning, would lose.
To cite a more topical example, under the District Court's formulation, Billy Aronson, the originator and first book writer and lyricist of Rent, would have been entitled to nothing. Aronson, whose lyrics for two songs still survive in the current version of the play, narrowly escaped Thomson's fate only because he obtained a letter from Larson after he and Larson parted ways, containing a vague but written promise that he would be paid "what ever the standard going rate is...." (E440) As a result, but only after threats of litigation (E14), he was able to obtain a settlement of four per cent of the authors' share of royalties from the Larson Heirs, transferring his copyrights in a work-for-hire agreement. (E976-80) Under the District Court's formulation, he would not have been entitled to anything. He could never prove that his deceased collaborator intended for him to own a "right to control the work," or a "right to be recognized as the author." Larson's promise of payment of course would have been unenforceable, since there was no "meeting of the minds" on any "price" term.
The most disruptive result of an affirmance, however, arguably would be as a consequence of rights created, rather than rights taken away. As Judge Hand stated for this Court in the leading case of Marks, the alternative to a finding of joint authorship is to split a co-created work into sometimes valueless components, allowing each contributor "to forbid publication" of the work as a whole, and thus to "take away the kernel, and leave... only the husk":
Whatever popularity the second author's contribution may have added to the first's, which will survive their divorce, he must be content to release to the first author; whatever popularity his own contribution has gained from the association, he must be content to lose.
140 F.2d at 267.
The Copyright Act provides, in pertinent part, that "[c]opyright in a work protected under this title vests initially in the author or authors of the work." 17 U.S.C. § 201(a). Where the work is joint, each author's rights are non-exclusive. Id.; 1 M. & D. Nimmer, Nimmer on Copyright §§ 6.01-02, 6.10 (1997). Where it is not, the rights are exclusive. 17 U.S.C. § 106. In the case of Lynn Thomson, if it were to be affirmed that Rent is not a statutory joint work, she then would be awarded rights which she never imagined, much less sought, and which she would be loathe to enforce. Under Section 106, she would have the right to enjoin any use of her contributions in any stage production, book, cast album, or motion picture. Geshwind v. Garrick, 734 F. Supp. 644, 645, 647, 651 (S.D.N.Y. 1990) (employer of creator of 15-second segment and "piece of computer graphics animation," both used in a film, had exclusive rights to the two portions under § 106, or alternatively, rights of a joint author); see also, Sanga Music, Inc. v. EMI Blackwood Music, Inc., 55 F.3rd 756, 757, 761 (2d Cir. 1995) (creator of one verse of a song initially owned copyrights to that verse).
Thus the Larson Heirs unwittingly are arguing for a result which could cause serious disorder and harm to their own interests. As Professor Goldstein warned, the interpretation of Childress which the Larson Heirs espouse "promises greater disorder than it would replace." P. Goldstein, supra, at 4:12. Thomson, by contrast, argues for a position which is not only consonant with the law, but also the most reasonable, and in the best interests of all concerned.
POINT III
A REVERSAL OF THE
DISTRICT COURT'S DECISION
WOULD CAUSE NO DISORDER
Like the employers' and manufacturers' associations which argued unsuccessfully before the Supreme Court in Reid (See, Point I-C, supra), the Larson Heirs argue that if Thomson is granted rights and compensation for her work, co-authorship claims will proliferate, and creative collaboration will be chilled.The Supreme Court of course rejected that argument, and at least one prominent legal expert has noted that the "principal effect" of Reid "is to bring home the necessity of written agreements with independent contractors, whether they are works for hire under §101(2) or works that cannot be acquired except by a transfer of rights." F. Kent, "New Rules on Rights to Commissioned Works," New York Law Journal, October 27, 1989 at 3 ("Written agreements, at least in theory, require some negotiation and lead to the development of a 'copyright marketplace,' which was one of the goals of the Copyright Act of 1976.")
Despite the grave predictions of a threat to collaboration which were articulated by the employers in Reid, hiring parties thus have been able, through copyright assignments and work-for-hire contracts, to obtain ownership of copyrights to the extent of their power over the parties whom they have hired. NYTW and the Larson Heirs themselves, by their multiple attempts to persuade Thomson to sign such documents, obviously have recognized the applicability of such documents to the material which Thomson contributed, but they made their attempts only after-the-fact, too late to eviscerate her rights.
Moreover, given the concession by the Larson Heirs' expert, Bernard Gersten, that most dramaturgs are employees of theater companies, (T131-32), together with the concession by their other expert, Robert Brustein, that virtually all artists connected with the development of plays, including dramaturgs, are under contract, (E246), as well as the testimony of Rent producer Jeffrey Seller that a written contract is "always" necessary "with anybody who is going to work on a Broadway show," (T94), it becomes obvious that the self-serving warnings in opposition to Thomson's claims have no credibility. Judge Kaplan perhaps recognized this when he stated that "I don't view this case as a test case on the role and rights of dramaturgs in the theater." (A26)
According to the above admissions, the vast majority of dramaturgs would gain no additional rights whatsoever from a decision in favor of Thomson. They either are employees covered automatically by the work for hire provisions of the Copyright Act (17 U.S.C. § 101), or they are governed by contracts which contain the necessary "work for hire" or copyright assignment language, or by contracts which easily could be modified to do so. The same holds true for all other collaborators. As expert Brustein testified, "[g]enerally speaking, all members of the collaborative process are contracted employees [sic]." (E246)
In addition, Thomson introduced expert testimony from two of the most prominent playwrights in the country, as well as from the Chairman of the Playwriting Department of the Yale School of Drama and three other theater experts, and all six took positions directly contrary to the prophesies of theatrical "panic" made by the Larson Heirs. (E208-16, E273-291, E27-33)
Pulitzer Prize-winning playwright Tony Kushner, whom Jonathan Larson regarded as "the number one name in America" (E1, T179), and who currently sits on the Executive Council of the Dramatist Guild (T373), testified that "the awarding of compensation and credit to dramaturgs, far from disrupting the collaborative process, enhances and honors it." (E217-18)
Similarly, Craig Lucas, another of America's most distinguished playwrights, who served on the Executive Council of the Dramatists Guild for six years, testified that a decision against Thomson, "far from protecting collaboration, would strike a blow against exactly that spirit of community which Rent celebrates":
If any playwright is concerned about whether a dramaturg will become a "co-author," that playwright need only clarify the relationship at the outset. If his or her worries persist, he/she can obtain a work-for-hire agreement. If this lawsuit results in additional communication between playwrights and dramaturgs (as I believe it will), that is a good thing, not a bad thing....
In my opinion, if there is any threat to collaboration which comes from this case, it arises from the danger that a dramaturg who gave her all to a play, and who "transformed" it into a Pulitzer Prize-winning, multiple Tony Award-winning, mega-hit, would be left with nothing for her many months of labors but $2000, legal bills, and her name buried in the staff credits after "Electrician," "Dance Captain," and "Assistant House Carpenter." In my opinion, Lynn Thomson has been subjected to a gross indecency. To uphold that, far from protecting collaboration, would strike a blow against exactly that spirit of community which Rent celebrates.
(E215-16)
In any event, we respectfully submit that the Larson Heirs' predictions of "fear, paranoia and suspicion" (E1854) should be disregarded in their entirety. Such alleged concerns have no place in the recognition and enforcement of rights guaranteed to any plaintiff as a matter of statutory law.
POINT IV
THOMSON GRANTED NO COPYRIGHT
LICENSE OR ASSIGNMENT TO ANYONE
Contrary to the alternative argument of the Larson Heirs, which the District Court apparently did not accept, Thomson neither licensed nor assigned her copyrights to anyone.
In the one and only contract Thomson ever signed regarding her work with Larson, the Thomson/NYTW Agreement, there was no mention of, or allusion to, any issue of copyrights. (E626) Moreover, the contract pertained specifically and only to the "production of RENT to be performed at New York Theatre Workshop, 79 East 4th Street." Id.
Every time that NYTW or the Larson Heirs attempted to obtain a license from her, she refused to grant it. (E1102-03, E956, E330-31) Thomson, the Larson Heirs, and NYTW all made it clear from their conduct that Thomson had copyrights and had not licensed them.
With regard to the argument that Thomson additionally, or alternatively, gave a license to Larson, it must be remembered that in the case of joint works, any license on the part of one co-author to another would have to be a total transfer of copyright ownership. A non-exclusive license of only some portion of the copyrights from one co-author to another would be non-sensical, because each co-author already has non-exclusive rights in the entire work by virtue of his or her co-ownership. 1 Nimmer, supra, §§ 6.01, 6.02, 6.10 (1997).
In the case here, however, it is impossible to find a transfer of copyright ownership from Thomson to Larson (or to anyone), because such a transfer must be in writing and clearly stated. In a similar situation, the District Court refused to find a transfer of copyright ownership between co-authors because there was no written evidence of the transfer as required by 17 U.S.C. § 204(a):
Section 204(a) of the Copyright Act provides that a "transfer of copyright ownership . . . is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. 17 U.S.C. § 204(a).... Section 204(a) does not contain language exempting copyright transfers between joint authors.
Papa's-June Music, Inc. v. McLean, 921 F. Supp. 1154, 1158 (S.D.N.Y. 1996)
Even if it were true that Thomson gave Larson an implied license of non-exclusive rights, such a license would be revocable at will for lack of consideration, since Larson never made any payments to Thomson. 3 Nimmer, supra, § 10.02[B][5] (1997).
Lastly, any license granted by Thomson would in no way eliminate her right as a co-author to an accounting from Larson or his heirs with respect to his/their licensing of rights to third parties. 1 Nimmer, supra, § 6.12.
The fact remains, however, that no license occurred here, and neither did the District Court find one. For the above reasons, this Court should similarly reject the license argument.
POINT V
JUDGMENT SHOULD BE
ENTERED AWARDING THOMSON
AN ACCOUNTING FOR 16 PER CENT
OF THE AUTHORS' SHARE OF RENT
The New Version of Rent was derived from a previous and substantially different version which was staged in the Workshop Production. With respect to the current work, it is undisputed that 48 per cent of the script (or "book" and "lyrics") is new in relation to the 1994 Workshop Version with which Thomson was presented. (E317) Given the District Court's findings of fact, there can be no disputing that this 48 per cent was contributed by Larson and Thomson together. Accordingly, as a statutory co-owner of the new material co-written by them both, Thomson is entitled to authors' royalties corresponding to one-half of that material, or in other words, 24 per cent of the full script. Silverman v. CBS Inc., 870 F.2d 40, 49-50 (2d Cir.), cert. denied, 492 U.S. 907 (1989) (derivative rights pertain only to new increments of expression).
Because Rent is a "dramatic work" under the Copyright Act, 17 U.S.C. § 102(a)(3), comprised of three components, namely, its book, lyrics and music, and because Thomson contributed no music, she therefore seeks 24 per cent of two-thirds of the authors' share attributable to the work as a whole, or in other words, 16 per cent. She therefore should be awarded a retroactive and ongoing accounting from the Larson Heirs in that amount, together with a declaration that she is a statutory co-author of the work.
Conclusion
For all of the reasons stated above, the District Court's final order and judgment must be reversed, and a judgment should be entered (1) declaring Thomson a statutory co-author of Rent, (2) awarding her an accounting for 16 per cent of the authors' share of royalties, (3) awarding her attorneys' fees and costs, and (4) granting her such other and further relief as this Court deems proper.
Dated: New York, New York
October 10, 1997
Respectfully submitted,
THE LAW OFFICES OF
RUSSELL ALEXANDER SMITH, P.C.
By:_______________________
Russell Alexander Smith
(RAS #8873)
Counsel of Record for
Plaintiff Lynn M. Thomson
488 Madison Avenue, 9th Floor
New York, New York 10022
(212) 460-5518
Footnotes:
1. "T" refers to the trial transcript, which is part of the record on appeal on file in the District Court Clerk's Office, and which the parties agreed not to reproduce in the Joint Appendix.
2. "E" refers to the Exhibit Volumes incorporated in the Joint Appendix.
3. See, e.g., The American Heritage Dictionary, Webster's New World College Dictionary, and Webster's II New Riverside University Dictionary. In The Random House Webster College Dictionary, "Dramaturgy" is defined as "the art, craft or techniques of dramatic composition."
4. Hearings on S. 1253 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Comm. on the Judiciary, 101st Cong., 1st Sess. (1989); Plaintiff's Trial Exhibit GGGG (Appendix to Reid Respondent's Brief in Opposition)
5. "PX" refers to the Plaintiff's Trial Exhibits.
6. To paraphrase C.S. Lewis.
7. The District Court inaccurately stated that the amount of language written by Thomson was "variously estimated at 3-9 per cent." (T702-03) In fact, there are only two estimates: an 8.5 per cent estimate by Thomson attorney Thomas D. Selz (E1661), and an actual line count by Thomson herself, showing approximately 9 per cent. (T473-74, E185-204, E1452-1555)