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INTRODUCTORY NOTE BY ATTORNEYS FOR LYNN THOMSON:
The following transcript is of the oral arguments regarding Lynn Thomson's appeal to a three-judge panel of the U.S. Court of Appeals for the Second Circuit, which is the second highest court in the country. Because each of the three judges has read the various legal briefs in the case, the discussion presumes a thorough knowledge of the facts, and much of the law, in the case. In other words, the arguments and judge's comments can be better understood by reading at least some or all Lynn's appeal brief and the friend-of-the-court brief filed in support of Lynn by the National Writers Union and LMDA, both of which can be accessed on this web page.
You will see from the transcript that there is no longer any issue as to whether Lynn is one of the authors of RENT. In the words of Presiding Judge Calabresi, the lower court's finding that Lynn "wrote" portions of RENT which are "independently copyrightable" and "non-de minimis" (i.e., substantial) is one which now can be "taken for granted." In other words, Lynn already has won on that critical issue.
The principal remaining issue, and one of the running threads of the oral arguments and judges' comments, is the question of whether Lynn is a legal "co-author," which allows her a 16 per cent share of the authors' royalties but no right to enjoin the use of her material, or whether she is instead a separate "sole author" of her own material, which would allow her to (a) require users of it to pay a license fee, and (b) to pull her material from the play if no agreement is reached on a license. Our position is that she must be one or the other, since she certainly is one of the authors of RENT, but that the "co-author" theory makes more legal and practical sense. We take that position even though the "sole author" theory would give Lynn far more rights, including the right to shut down RENT, if the persons profiting from her work continue to refuse to compensate her. Lynn never has sought to have that power, and would be happy to receive a modest author's royalty, title-page dramaturgical credit, and the right to quote from the scripts which she co-wrote, in a scholarly book which she intends to publish on the subject.
The Second Circuit decision probably will not be announced for another month or two. If the language and tenor of the judges' comments are any indication, it seems more likely than not that the Court will lean in favor of the "sole author" theory, whether or not the Court definitively rules on it at this time. As we mentioned, this would be a bigger victory for Lynn than we ever asked for, because Lynn would hold independent copyrights in RENT -- rights which could form the basis for an action against the Broadway producers and others for copyright infringement.
Presiding Judge Calabresi noted that even where an "other author" such as Lynn might not fit the definition of a statutory "co-author" under the controversial leading case of Childress v. Taylor,(1) "this doesn't mean that the other author doesn't have copyright rights in whatever portion he or she has put into the work, unless she has, or he has, turned those copyrights over." Judge Calabresi, referring to Lynn's "non-de minimis" (substantial) authorship in particular, acknowledged that "there was independently copyrightable material that she made..., and there's no indication that she turned that over." He expressly noted the possibility that Lynn may have "a right to some payment, or [to sue] for copyright infringement, as to the things that she put in." When the attorney for the Larson Heirs attempted to argue that Lynn impliedly licensed the use of such material, Judge Calabresi reiterated, to the contrary, that "it is very hard to say that Ms. Thomson intended to turn over her copyrightable material, because there is objective evidence that she did not do so."
Judge Bright was equally straightforward. In response to the Larson Heirs' argument that Lynn intentionally was left out of the authorship contracts and therefore does not have authorship rights of any kind, Judge Bright noted that this is "180 degrees" contrary to the law:
"To tell you the truth..., your argument... is about 180 degrees away from the language of the Copyright Act, when you're saying that the dramaturg or whoever contributes has to have a contract in doing business with the primary author. I don't read the cases that way, and I don't read the copyright law that way."
The third judge on the panel, Judge Feinberg, said nothing contradictory to the above-quoted views of Judges Calabresi and Bright. None of the judges offered any comments which would be in any way unfavorable to a claim by Lynn against the Broadway producers and others for infringement of her registered and judicially-recognized copyrights.
Although the RENT producers have been paying $50 per week to Lynn for dramaturgical services performed after the play was written, none of them ever has paid (or ever has offered to pay) her any portion at all from the many millions of dollars in profit which they have reaped from the commercial exploitation of the script which she co-wrote. (Gross receipts are already in excess of $150 million.) None of the persons and entities profiting from Lynn's work have offered even to enter into negotiations on the subject, despite numerous good faith efforts on her part to reach a reasonable accommodation.
If the producers and others continue to stonewall, Lynn intends to bring a lawsuit for an injunction against the use of her material, and for compensation for the tremendously profitable use of her work thus far. Further information will be available on this site as the situation develops.
Footnotes:1. The Childress case has been much-criticized because it seems to impose an extra hurdle, which Congress never intended to impose, upon persons seeking to establish co-authorship rights. Although the Copyright Act says co-authors include any group of two or more authors who prepare a work "with the intention that their contributions be merged," Childress requires that they also must "entertain in their minds the concept of co-authorship." A "sole author," by contrast, need only prove that he or she has created "original" material which is "fixed in a tangible medium."
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