RENT Trial -- Excerpts from the Judge's Decision

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EXCERPTS FROM DISTRICT JUDGE, HON. LEWIS A. KAPLAN'S DECISION ON 96. CIV. 8876, NEW YORK, NEW YORK, JULY 23, 1997

. . . In the summer and fall of 1995, I find that Ms. Thomson and Jonathan Larson worked extremely intensively together on the show. A great deal, probably the vast majority, of the work took place in Jonathan Larson's apartment with no one present but Mr. Larson and Ms. Thomson.

Out of the apartment, to speak colloquially, there came in October of 1995 a new version. That new version has been characterized by experts, whose testimony I accept on this point, as a radical transformation of the show. Anne Cattaneo, whose testimony I credit on this point, testified that the workshop draft, which was the basis of the studio production in 1994, was not a producible work but that the October 1995 version allowed a theater to go forward with production.

Ms. Jonas, whose testimony I also credit on this point, said that the October 1995 version amounted to an essentially new and for the first time viable work. Without meaning to put undue emphasis on what at best are seat-of-the pants guesses by the witnesses who voiced them, there seemed to be a general acceptance that something on the order of approximately a third to a half of the script for the show in the October 1995 version was different from the preceding version.

Obviously, one of the major issues over which the parties contend is who was responsible for those changes and in what degree. But just to finish the historical part of this discussion, rehearsals began in December of 1995. Mr. Larson unfortunately passed away on January 24, 1996. There were some post-death changes made by Ms. Thomson and others associated with the show, which by all accounts and I find were minor. The world premiere took place on February 13, 1996. On February 23, it was announced that the show would move to Broadway. And the rest, as it were, is history. The show has been an astounding critical, artistic, and commercial success.

That said, we come to the analysis under the Copyright Act. The relevant part of the Section 101 of the Copyright Act defines a joint work as, and I quote, a "a work prepared by two or more authors with the intention that their contributions be merged into an inseparable or interdependent parts of a unity whole."

The words of the statute raise at least two significant issues. First, must the contributions of two or more putative joint authors each be copyrightable standing alone, or is it enough that only the final product is copyrightable? That issue is not at the heart of this dispute, because Ms. Thomson certainly claims that she made independently copyrightable contributions.

The second and the issue that is at the heart of this case, is whether each of the putative joint authors must intend that he or she be a co-owner of the work or whether instead it is sufficient that each intends that his or her respective contribution be merged into the work. . . .

There was a fair amount of emphasis on the part of the defendants during the argument on the issue of whether Ms. Thomson made a copyrightable contribution, which is certainly one of the two elements that must be established. Ms. Thomson claims that she contributed themes and plot elements and structure and specific language, perhaps among other things. Exactly what her claims are is detailed in Defendants' exhibits VVVV and WWWW.

In contending that she made no copyrightable contribution, the defendants question both the veracity of Ms. Thomson's account of what she did and, even assuming that I believe Ms. Thomson, whether as a matter of law most of the claimed contributions are copyrightable.

I have no doubt that Ms. Thomson made a major contribution to the show we now know as Rent. She was a significant force in turning the studio production script into the hit that Rent became. Although I don't necessarily agree that each and every specific bit of wording on Defendants' Exhibit WWWW was in fact created by her, which is not a comment on her veracity but rather on the failings of human memory, I am inclined to the belief that some are. In other words, there are lines in Rent that originated verbatim with Ms. Thomson. I don't think they amount to 9 percent, and certainly not zero. There is probably enough there so that it is not de minimis. And on any standard of what sort of contribution is copyrightable, whatever specific words she contributed meet that standard.

It may very well be that there are other aspects of her contributions that are copyrightable as well. Those issues raise some very difficult questions under the Copyright Act. In the last analysis, given my view of the case, I don't have to decide them.

I do want to emphasize, that, in concluding that Ms. Thomson played a very important role here and made at least some non-de minimis copyrightable contribution, I take nothing away from what Mr. Larson accomplished. Indeed I really pause on the point because, as I understand Ms. Thomson, she isn't either. I understand her to be saying that Jonathan Larson was the dominant creator of Rent. I understand her to be saying that the overwhelming share of the credit for the success and acclaim that Rent has won belongs to Jonathan Larson, and that the show is a tribute to his talent and his perseverance. I certainly agree with that. I view her claim as a much narrower assertion, and I believe it is made in good faith.

In the last analysis, though, as I say, I don't have to decide what was copyrightable in what she did and what wasn't because the case does turn on the issue of the intent of Mr. Larson and Ms. Thomson. . . .

THE FOLLOWING PASSAGES ARE FROM LATER IN THE DECISION AND REGARD JUDGE KAPLAN'S REASONS FOR DECIDING AGAINST MS. THOMSON:

. . . As I understand the Childress decision, it makes clear that each of two or more putative joint authors must entertain in their mind the concept of joint authorship. The court said that much. It said also that they don't have to understand with precision exactly what that means in terms of legal consequences. The language was a mite Delphic on what it means beyond legal consequences, but, again, they weren't Delphic in context.

Reading Childress as a whole, the only view of this problem that makes any sense to me is that the Court of Appeals was telling us that the parties each must understand that each one of them has an interest in the joint product, that is to say, a right to share in the proceeds, a right to control the work, a right to be recognized as the author. In other words, there must be an intent that there be a sharing of the indicia of ownership and authorship.

I find here that the plaintiff has failed to prove that Jonathan Larson entertained the necessary intent, whatever permutation of the list that I just read off might be adopted. There simply is no proof persuasive to me that Jonathan Larson ever intended, despite all his warm feelings and high regard for Lynn Thomson, that she have the sort of interest in the product that is necessary in my view to have made her a joint author.

I know the plaintiff makes a number of contentions that are designed to -- and I don't mean the word "designed" in a calculating sense, I mean it only in the sense of intended -- that are intended to be persuasive in the other direction on the issue of Mr. Larson's intent. They rely especially on the conversation with Mr. Larson to which I have already referred, which Ms. Thomson recounted at the time to Mr. Lucas. That is the conversation in which Mr. Larson said that, of course he wanted her to write, that he would always acknowledge her contribution, and that he would never say that he wrote what Ms. Thomson did.

I have no reason to conclude that that statement did not occur just exactly as Ms. Thomson said it did. I credit her and I credit Mr. Lucas on that point. But I do not find it persuasive on this issue. I find the statement entirely consistent with Mr. Larson's view that he was the sole author and that Ms. Thomson, whatever her precise contribution was -- and it was a substantial one -- was the dramaturg, which he conceived to be a different role.