Rent Lawsuit Transcripts Main Page / Store / Links / dramaturgy.net
DISTRICT JUDGE, HON. LEWIS A. KAPLAN'S DECISION ON 96.CIV.8876, NEW YORK, NEW YORK, JULY 23, 1997
AFTERNOON SESSION
2:30 P.M.
DECISION
THE COURT: Good afternoon, everyone. I take it that the fact that no one is jumping up to tell me that I can go back upstairs means that you didn't get anywhere over lunch.
MR. SMITH: That is correct, your Honor.
MR PARCHER: That's right, your Honor.
THE COURT: Before I begin, let me make one or two preliminary comments that are not strictly speaking, or not at all, pertinent to the decision.
This has been a matter that has been handled with a great deal of passion and a great deal of ability by counsel on all sides, which, despite any appearances to the contrary that my getting actively involved from time to time may have created, was extremely helpful to the Court and very much appreciated by the Court. I mean that as to all five of you within the bar who participated -- Mr. Murray, Mr. Smith, Mr. Hayes, Mr. Parcher, and Mr. Snyder. It is a lot easier to pick on good lawyers and to test the limits of arguments that they make and propositions that they assert than it is with someone who doesn't know that you are talking about. I felt that I had in front of me in this case five lawyers who knew far more than what they were talking about, and I am grateful to each and every one of them.
I also want to make clear that I do certainly understand the difference between tax evasion and tax avoidance. I don't want Mr. Harris to go away thinking that I was implying by my questions this morning any misconduct on his part. My point was really quite short of that. And given the amount of attention the case has generated, I don't want anybody to go away with an inference that I did not intend to create.
That having been said, I think that it is critically important, and if I didn't think so before this morning I certainly do now, to focus very precisely on what the issue is in this case. The plaintiff, Ms. Thomson, claims to have contributed to a joint work, as the term "joint work" is used in the Copyright Act of 1976.
The legal significance of the term "joint work," or to put it in terms that might make it a little bit easier, simply in terms of expression, the legal significance of one's being a joint author, if one establishes that one is a joint author, is that each of two or more joint authors of a work is the owner of an undivided interest in the copyright on the work. That means that each joint author has the right to use or to license the work subject only to the obligation of the joint owner who exercises that right to account to the other joint owner or joint owners for any profits that are made. It is, in a sense, not too dissimilar from the situation that obtains when two people have a joint bank account.
There is no question that the concept of joint authorship under the Copyright Act may well include what many probably imagine when the term "joint" authors is mentioned. In most circumstances it will include, for example, two people who plan to and then do sit down and write a book in which each contributes different chapters to an integrated whole or a book in which there are no separately assignable chapters but in which each contributes language to the overall work in roughly equal proportions, I think as one uses the term "joint work" or "joint authors," that is the first thing that springs to mind. But the term "joint authors" and the term "joint work" are not necessarily so limited.
I focus on that because the issue that is before me in this case is not whether Lynn Thomson made a great contribution to the show. It is not whether she has been or ought to be compensated differently than she has been compensated. It is about whether what happened between Lynn Thomson and Jon Larson met the statutory definition as it has been construed by the higher courts of a joint work.
The broad outlines of the facts are clear enough. I know that I will not begin to do justice to the incredible job of historiography that counsel on both sides have done in teaching me every twist and turn of everything that happened from the moment the idea for the show Rent popped into Billy Aronson's mind years ago. But the broad strokes in most respects are entirely sufficient to decide this case.
The idea, it appears, was Billy Aronson's, and he and Jonathan Larson began working on Rent, as I understand it, early in the 1990's though it may have been slightly before. Mr. Aronson wrote all or part of three songs. In 1991, he and Jonathan Larson agreed to part company on this project, and Mr. Larson continued alone. I fully understand and fully credit the assertion that it was a passion or an obsession of his, there is no doubt about it.
In the summer of 1992, Jonathan Larson came into contact with the New York Theatre Workshop and continued his work on the show with support of various kinds from that organization. In the late fall of 1994 the New York Theatre Workshop put on a studio production of Rent in the form that it then took. There has been a great deal of energy devoted to elicit the response or the characterization of virtually every theatre professional who saw it at that time, and they cover some range.
Two things are clear. I think no one really seriously disputes, and in any case I find, that the professional consensus concerning the show, after the studio production, was that it was, at a minimum, very promising and that it needed a great deal of work. I won't attempt to compete with all of the experts in describing exactly what kind of work they thought it needed, but they certainly thought it needed work.
A short time thereafter, the New York Theatre Workshop either committed or agreed seriously to consider, it is not really material, an Off Broadway production of Rent in the 1995-1996 season, recognizing that a lot had to happen in order for that to occur or to occur successfully. Somewhere in the period between the studio production in late 1994 and the beginning of May, there was some effort made to persuade Jonathan Larson that the services of a book writer would be of advantage in making the show better than it was. Mr. Larson strenuously rejected that idea and the idea was dropped.
At the beginning of May, plus or minus a couple of weeks, Ms. Thomson, after meeting Mr. Larson and others at the New York Theatre Workshop, was hired by the New York Theatre Workshop as dramaturg to work with Jonathan Larson on the show. She agreed to provide her services in connection with the New York Theatre Workshop production for $2000.
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 theatre 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 work prepared by two or more authors with the intention that their contributions be merged into an inseparable or interdependent parts of a unitary whole."
The words of the statute raises 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.
In the papers that were submitted before trial, as I understood them, it was Ms. Thomson's contention that all that was required was an intention on the part of herself and Mr. Larson that their respective contributions be merged into an inseparable whole. I take it from the closing arguments this morning that Ms. Thomson now goes beyond that. Whether she now contends that is alone sufficient in law or not, she certainly does now argue that both she and Mr. Larson intended that each of them be a co-owner of the work within the meaning of the Copyright Act.
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 of 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 no-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.
There was a lot of mention, and quite appropriately so, in the argument of the Second Circuit's decision in Childress v. Taylor, which is reported at 945 F. 2d 500. The emphasis was important because in Childress the Court of Appeals told district judges in this circuit what it takes, beyond a copyrightable contribution to be a joint author. While I could probably read many pages, I am going to confine myself to two paragraphs that I think are in fact at the heart of it and which I think are really essential to understanding what I am going to say in the ensuing few minutes.
The court said, beginning at page 507, and I quote, "There remains for consideration the crucial aspect of joint authorship, the nature of the intent that must be entertained by each putative joint author at the time the contribution of each was created. The wording of the statutory definition appears to make relevant only the state of mind regarding the unitary nature of the finished work and intention that their contributions be merged into inseparable or interdependent parts of the unitary whole. However, an inquiry so limited would extend joint author status to any persons who are not likely to have been within the contemplation of Congress.
"For example, a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contribution to be merged into inseparable parts of a unitary whole. Yet very few editors, and even fewer writers, would expect the editor to be accorded the status of joint author and enjoying an undivided half interest in the copyright in the published work. Similarly, research assistant may on occasion contribute to an author some protectable expression or merely a sufficiently original selection of the factual material as would be entitled to a copyright, yet not be entitled to be regarded as a joint author of the work in which the contributed material appears. What distinguishes the writer/editor relationship and the writer/researcher relationship from the true joint author relationship is the lack of intent of both participants in the venture to regard themselves as joint authors."
The court then went on a short time later to tell us all, as best it could in those circumstances, what exactly the intent is supposed to be, to the extent not already articulated, and where to find it. I must say I do share a little bit of Mr. Smith's frustration, because there is to some degree, and I think you will hear, at least when the language is considered in isolation, some circularity. But I think in the context of the overall opinion it is quite clear.
The other paragraph that I think most relevant begins at the bottom of page 508, where the court, in speaking of the District Court's ruling in that case, that is, a previous decision in that case, said, "But he," referring to the district judge, "properly insisted that they entertain in their minds the concept of joint authorship, whether or not they understood precisely the legal consequences of that relationship. Though joint authorship does not require an understanding by the co-authors of the legal consequences of their relationship, obviously some distinguishing characteristic of the relationship must understood in order for it to be the subject of their intent." It then goes on to talk about billing being one relevant criterion.
The Second Circuit's decision in Childress, I should note, has subsequently been adopted by the Court of Appeals for the Seventh circuit in Chicago in a case called Erickson v. Trinity Theatre, reported at 13 F. 3d 1061. It has also been followed by other district courts.
How then to apply that standard of intent in this case? I pressed Mr. Smith on this morning. As I understand him, he argues that Childress requires only that there be some characteristic distinguishing a putative joint author, such as Ms. Thomson, from the editors and researchers that were referred to by the Court of Appeals in the Childress decision.
When pressed as to the respect in which the characteristic relied upon must distinguish the putative joint author from other collaborators, however, the plaintiff was very imprecise. As best I understand it, I take the plaintiff to be arguing that a recognition by Jonathan Larson that Lynn Thomson was an important collaborator who made an exceptional contribution is enough. But I don't agree with that, and indeed, if I have the argument wrong, it wouldn't matter.
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.
To be sure, in a different case on different facts one might imagine a very tough problem. There might be circumstance in which there was a recognition or a manifest intention of joint rights of control but no joint rights in the proceeds or other combinations. But that simply isn't this case..
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.
Counsel have marshaled a great deal of evidence that bears on this question. I won't refer to each and every piece that underlies my conclusion, but there are a few pieces of evidence that I find especially persuasive, so I will mention them.
First of all, as the Court of Appeals said in Childress, billing or credit is at least a window on the mind of the party who is responsible for giving the billing or the credit. In this case that surely was Jonathan Larson because he typed all the scripts. Every script brought to my attention, says, "Rent, by Jonathan Larson." I find no ambiguity in that, notwithstanding the extraordinary credit he gave, apparently quite appropriately, to Ms. Thomson as dramaturg. To the extend this expression is before us, he never confused authorship with Ms. Thomson's role.
He also described himself in the biography he submitted for the playbill in January 1996, nine days before he died, as the author/composer, and listed Ms. Thomson in the same document as the dramaturg.
Second, Mr. Larson listed himself or treated himself as the author in the November 1995 revisions contract that he entered into with the New York Theatre Workshop, which in turn incorporated the earlier draft author's agreement that had not been signed. The fact that he felt free to enter into the November 1995 contract on his own, without the consent of and without any reference to Ms. Thomson, quite part from whatever the terms of the agreements are, indicates that his intention was to be the sole author.
Moreover, although I don't put nearly so much weight on it as the very fact of entering into the agreements, I do note that paragraph 9 of the September 1995 draft agreement, which was incorporated by reference in the November agreement, gave Mr. Larson sole approval over changes in the text and provided that any changes in the text would become his property. That September 1995 draft provides also that he would receive billing as sole author. I see no conclusion to be drawn from that other than that his intention was to be the sole author.
Third. Although the question factually is slightly closer, I conclude that Mr. Larson retained and intended to retain at all times sole decision-making authority as to what went into the play. I have no doubt that, in the close collaborative relationship that Mr. Larson and Ms. Thomson had, each consulted the other about proposed changes. I have no doubt that there were many cases in which one or the other came up with what he or she thought a good idea and ultimately did not include it because the other, in one way or another, expressed reservations about the idea. But I don't find that inconsistent with my ultimate finding on this point.
Furthermore, I take note of Ms. Thomson's testimony concerning the conversation with Mr. Larson in which she told us that she told him that she was flattered that he expected her to write. That statement by her indicates to me that, at least at the time that statement was made, it was Ms. Thomson's understanding that the question whether any contribution she might make would go into the script was within Mr. Larson's sole and complete discretion.
Fourth. In October of 1995, Mr. Larson gave a tape-recorded interview to a young student in which he said, in substance, that he wrote everything in Rent and distinguished writers in the theatre from writers in the other media by saying that in the theatre the writer is the king. Now, I quite understand that that statement cannot be literally accurate, putting aside in all respects the controversy involving Ms. Thomson's contribution, because clearly there is some content in the show which admittedly is Billy Aronson's. The importance of the statement is not in its literal accuracy or inaccuracy. The importance of the statement is that it evidences Mr. Larson's view that Rent in all respects was his, he was the king. So the statement, though figurative, is I think quite revealing.
Fifth. I take as significant Mr. Larson's refusal to accept a book writer. Once again, it is the same point: It evidences his determination to do it himself, in colloquial terms. We all know that Ms. Thomson came later. There may be respects, indeed I think in some elements there are respects, in which she did things that a book writer, had one been hired, would have done. But it is the rejection of a book writer that speaks to Mr. Larson's intent.
Of course, I recognize that, temporally, that came well before Ms Thomson's contribution, and people's views do change. The fact, however, is part of a broader pattern that persuades me that Mr. Larson never intended the joint authorship relationship.
The final point of evidence that I will mention on this dimension is the testimony of Mr. Rosenstein. There was evidence submitted here that Mr. Larson and Mr. Rosenstein collaborated to one degree or another on a work which at one time was called The Resurrectionand at another time was called something else. The name has skipped my memory. But on two instances, one in 1991 and one in 1992, applications for registration of copyright were made on that work on behalf of Mr. Rosenstein and Mr. Larson. Each described his role on both applications as co-author.
That proof satisfies me that, although Mr. Larson undoubtedly was in no position to compete with skilled copyright lawyers on the dimensions and requisites of joint authorship of copyright, he understood at least that such a thing existed. He understood there were certain legal formalities that were not necessarily, but on occasion could be, associated with it. He understood that the phrase "co-author" was one freighted with legal significance. And there is absolutely no evidence whatever, I think literally none but certainly none that is persuasive to me, that he ever regarded himself as a co-author with Ms. Thomson of Rent.
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 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.
There has been a lot of debate in this case about the word "dramaturg" and the role of dramaturgs in the theatre. I think it is very important to emphasize that I have really ultimately not found that to be terribly profitable in resolving the case. I don't view this case as a test case on the role and the rights of dramaturgs in the theatre, though others may so view it. I view this case as involving an issue about what went through the minds of these two people on the unique facts of this case. That is a bit of digression but in view of the amount of ink and passion expended on the dramaturg point, I thought it noteworthy.
Another point that the plaintiff made a great deal out of, more in opening argument than in closing, because I think Mr. Smith, quite appropriately, recognized that it wasn't making much headway right at the beginning, was the fact that Mr. Larson put the words "Copyright 1995" or whatever the year happened to be, on every version of the script, and in most versions he had it on two separate places. It was on the title page at the front in every script and in most of them there was a page at the back in which that appeared at the bottom. On none of the title pages did Ms. Thomson's name appear, but on quite a number of those back pages it appeared near the top of the page several inches away from the copyright line as a simple credit line, "Lynn M. Thomson, dramaturg."
What the plaintiff would take from this is that it was really quite extraordinary for a dramaturg's name to go on a page in a script at all, much less a page on which there appeared a copyright notice or the word "copyright." I assume for the sake of argument that that is all entirely right, that it was unusual. But it is crystal clear that Mr. Larson did not put her name in the copyright notice itself. He didn't put it near the copyright notice. He didn't say she wrote anything there. He listed her simply as what he conceived her as having been hired to be, the dramaturg.
I take the reference to her on that page as reflecting his acknowledgment that she had made a quite unusual and exceptionally valuable contribution as the dramaturg, one that he felt warranted recognition at all times. Overall, however, I find, as I indicated earlier that the manner in which he listed credits on the scripts strongly supports the view that he regarded himself as the sole author.
In view of my finding that, by whatever standard, Mr. Larson never regarded himself as a joint author with Ms. Thomson, there is simply no reason for me to address the question of what Ms. Thomson's understanding or intention was. There are, I think, arguments that could be made both ways, but my bottom-line conclusion is that, so far as Ms. Thomson alleges that Rent within the meaning of the Copyright Act, is a joint work by Jonathan Larson and Lynn M. Thomson, it is not so.
Judgment will be for the defendants. The judgment will declare that Ms. Thomson is not a co-author of the show. Insofar as the complain seeks other forms of relief beyond the declaratory judgment, it will be dismissed.
Having said that, I can only express once again the genuine sorrow that I feel that this case ever came into this court and that the parties have been unable to resolve it. It is I think most unfortunate. And as everyone agreed during the course of the argument this morning, it never would have happened if this young man were here today. I hope that some good may yet come out of this.
____________________
1. This statement refers to an earlier discussion by the court, during summations. That discussion was as follows:
THE COURT: (at pg. 702-703, Summations). Mr. Parcher, it sounds like, in some respects, we are dealing with another bunch of straw men that are set up. I have sat here for four days and I have read tons of material, and I don't take out of this any sense that Ms. Thomson is saying, in the colloquial sense of the term, that she is the co-author or the joint writer of this show. She is saying that she made a contribution, she wrote some lines, variously estimated at 3-9 percent, which may be accurate or may not. But at the end of the day, when pushed by the family's position with respect to all the matters in dispute, it is her position as a matter of law that under the Copyright Act she owns an interest in a joint work. That is rather a different scenario, I would suggest to you, than what you are getting so excited about.
MR PARCHER: I am not quite understanding the difference, your Honor. Either she is a co-author or she is not a co-author.
THE COURT: She is saying that "co-author" the way it reads on page 6 of the New York Post and "co-author" the way it reads in Section 101 of the Copyright Act, means rather different things, at least in the colloquial sense. So to get as excited as you do about syndicating Jonathan Larson as this great talent is to my mind very much a straw man, because nobody is suggesting otherwise, least of all Lynn Thomson. I must say that to you.
2. A reference to the following, p. 700:
THE COURT: It seems equally clear that we wouldn't be here today if he were alive because her name might well be credited on the title page and an economic arrangement arguably more equitable would have been reached.
MR. PARCHER: Yes, I think that is possibly right, your Honor . . .