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See also: Lynn Thomson's Attorneys' Introduction to this document

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Docket No. 97-9085

LYNN M. THOMSON,
Plaintiff-Appellant,

- against -

ALLAN S. LARSON, NANETTE LARSON, and
JULIE LARSON McCOLLUM,
Defendants-Appellees.

TRANSCRIPT OF ORAL ARGUMENTS
March 26, 1998
11:45 a.m.

Before:
HON. MYRON BRIGHT
HON. GUIDO CALABRESI
HON. WILFRED FEINBERG
Circuit Judges

APPEARANCES:

THE LAW OFFICES OF
RUSSELL ALEXANDER SMITH, P.C.
Attorneys for Plaintiff-Appellant
BY: RUSSELL A. SMITH

PARCHER HAYES & LIEBMAN, P.C.
Attorneys for Defendants-Appellees
BY: L. PETER PARCHER

 

MR. SMITH: Good morning Your Honors. May it please the Court. Your Honors, Lynn Thomson was asked to write. She wrote a substantial amount, a substantial portion, a significant portion, of one of the biggest hits that Broadway has seen in decades. The District Court says that unfortunately, under the law, none of that matters. Unfortunately, under the law. Our position is that under the Copyright Act, it does matter. Before getting to a recapping of all of the essential points and the essential facts and the condensation of that, I would like to raise three new points which did not make it into the briefs. First of all, I would like to urge you with every fiber of my being to look at the legislative history behind the joint work definition, because there are twenty years of it. There are twenty years of debates, and it is recorded -- there is a lot written down that you can look at to see exactly where the word "intention" came in and why. Because the definition....

JUDGE CALABRESI: Counsel, in that respect, are you asking us to seek to overturn Childress, or are you saying that Childress can be interpreted to go along with that definition?

MR. SMITH: The latter, Your Honor. I agree with Professor Goldstein's criticism of Childress, and I won't lie to the Court. I wish that the Childress Court had not said some of the things that the Childress Court did say, but we can live with it -- we will have to live with it before Your Honors. And absolutely, you do not need to overrule Childress. Childress has simply added an extra hurdle. I don't think that the Court should have, but it did add an extra hurdle -- that you must show some distinguishing characteristic that goes to an intention to be a joint author. But the big mistake that the District Court made was in confusing this added hurdle, that you have to focus on the intent of joint authorship, and the District Court said no, you focus on joint ownership. In fact, the District Court said that this is the issue: "whether each of the putative joint authors must intend that he or she be a co-owner of the work." Childress never said that. Co-ownership implies legal rights, and in fact the Judge said that that is exactly what....

JUDGE CALABRESI: If they are coauthors, don't they have joint ownership rights automatically?

MR. SMITH: Yes, Your Honor, absolutely.

JUDGE CALABRESI: Then what's the difference?

MR. SMITH: Because with authorship in a layman's sense, we are talking about artists. We are defining the intentions of artists, not the intentions of copyright lawyers. Statutory authorship, joint authorship, is a different thing than the layperson's understanding of authorship. For example, you have Robert Brustein, an expert witness for the defense, testifying that the designation, "dramaturg," could mean "partial authorship." He is testifying for them, and he is talking as a layperson, not a lawyer, saying yes, you could consider a dramaturg to be a partial author. Well, that is exactly what Jonathan Larson intended.

JUDGE CALABRESI: But a partial author is not the same thing as joint authorship, is it?

MR. SMITH: No, it isn't Your Honor. It isn't necessarily....

JUDGE BRIGHT: Well, I understand your position from your brief, which is that subjective intention does not really count, that is, what's in their mind on whether they're going to be joint authors, as much as the objective thing of what they did. But it seemed to me in reading the briefs, which I did, and the District Court opinion, that you almost have to come to a conclusion that whatever contributions your client made which still exist in the work, Rent, were passed on and approved, and wouldn't get in there, unless the original author, Larson, agreed to it. In other words, he was the person to say this goes or doesn't go. What do you say to that argument?

MR. SMITH: Well, I say two things to that. First of all, as the other side will point out to you, and I'll point out to you before they do, he rejected the whole idea of having a book writer, and so what happened was they basically insisted that he have Lynn Thomson help, and they called her a dramaturg to make it go down easier, but the fact is, he thought the play was ready to go in 1992....

JUDGE CALABRESI: I don't think that is an answer to Judge Bright's question. I thought Judge Bright's question was, even though he might not have wanted somebody to be a writer, did he still retain the power to say this goes in, what that writer has given, or this doesn't go in?

MR. SMITH: Well, the power is a dynamic between two people in a room, and the evidence tells you, when you look at Lynn Thomson's testimony -- and unfortunately for us, she is the only one here to talk about it -- that....

JUDGE CALABRESI: You are talking about objective tests. See, if you're now moving to the question of subjective intent, that's another matter. You said that Childress leaves open the question, and indeed leans towards, objective intent. Fine. Let's look at objective intent then, and among the indicia of objective intent is the question that Judge Bright put to you, that is, when something comes in, did the primary author, or the original author, retain the power to say yes or no?

MR. SMITH: Well, Your Honor, I would say again that that it is a dynamic, and what I was going to say is that the testimony of what happened in that room was that many times, Lynn Thomson, at least four times, Lynn Thomson said, "I want this to go in," and he said, "no way, that's crazy," and she, by force of just keeping going at it, prevailed....

JUDGE CALABRESI: Convinces him to put it in.

MR. SMITH: By the same token, he had to convince her, and you have testimony....

JUDGE CALABRESI: He had to convince her of what?

MR. SMITH: To put things in! She would say, "no, I don't want this in," and....

JUDGE CALABRESI: Of hers?

MR. SMITH: No, of his, sometimes. You'll see that the Artistic Director testified that he had to convince Lynn Thomson, as well as Jonathan Larson -- that the dynamic....

JUDGE CALABRESI: That's something I'd like to see more of. That I haven't seen any indications of -- that she had a veto -- anything on the record that she had a veto on things that he put in.

MR. SMITH: We'll never know whether anyone had a veto, because there was never that kind of disagreement, where someone just says, "absolutely I am not going with this." There was a consensus that was reached about every single line. I want to also say though, however, that if you say that the person who has the ultimate control -- there's always going to be a dominant author and a secondary author in this sort of situation, when someone has written a work, and another person is brought in after the work is written to help write, or rewrite. So you are always going to have that situation, and to just say that the dominant author by definition wins, if there's a dispute, is just not the law. If you look at the Reid case, for example....

JUDGE CALABRESI: Well, you can have a solution which says that co-authorship requires a situation where there isn't that sort of dominant author who has the veto, which is sort of the thrust of Childress, and then say 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 copyright rights over, which is a question not before us. That is, it is not before us whether there was a work for hire or she was an independent contractor to the theater, and therefore whether she has a right to some payment, or for copyright infringement as to things that she put in. You can have two authors in a work without having them be joint authors.

MR. SMITH: You can have that, Your Honor, especially in a situation like that of the Twelfth Street Rag case, and that's the whole reason why the word, "intention," was put into the Copyright Act -- no other reason -- into the definition of joint works. Because in Twelfth Street Rag, you had an author who wrote something, and then you had a third party taking his work, and bringing it to someone else's work, and the Second Circuit said that is a joint work. Congress overruled the Second Circuit and said: no it's not, because there must be an intention by the first author at least that something's going to be added to the work. In fact, let me quote from Barbara Ringer. Let's listen to what she says. This is the Copyright Register at the time, who, for about a decade was supervising the revision of the Copyright Act. She said the word "intention" was added to make sure that joint authorship is not found "simply from the accident of bringing two authors' works together." And I'm going to hand up, if I have the Court's permission, a list of the legislative cites -- cites only -- because they're very cumbersome, and I don't think you want to hear me read them.

JUDGE CALABRESI: Did your client, at any time before this play, this thing -- I don't know what it is, I know La Boheme, but I don't know Rent -- became a success, do anything which suggested that she was a joint author?

MR. SMITH: Absolutely. First of all, you probably don't want to hear it, but she wrote, and she had an explicit discussion....

JUDGE CALABRESI: That she wrote, and that she contributed something which the District Court said was more than zero and less than nine per cent, not de minimis, I think, while it was disputed by the heirs in the District Court, is something which is pretty well taken for granted. That much, okay. But other than that....

MR. SMITH: In addition to that, there is the explicit discussion of that, of the new role that she has, when Jonathan Larson says....

JUDGE CALABRESI: There is that conversation, the alleged conversation, which can be read to be "don't worry, I will be generous to you, even though it is my work." That is, you could read it both, you could read it, perhaps, as some assertion on her part, and you can read his answer as saying, "don't worry, I'll be generous."

MR. SMITH: Absolutely, Your Honor. I am arguing that it doesn't matter whether he thought it was noblesse oblige or not. It doesn't matter what the subjective intentions were about whether she had any rights or not. So I'm not going to talk to you about how generous he was, because I don't really care whether he was generous. But in answer to your question,

they had not only the explicit conversation, not only about how she's going to get credit, but about what she's doing. And he said, "of course I want you to do that," in other words, to write, and "I'll never say....

JUDGE CALABRESI: There's no question that he wanted her to write some part, to edit. At that point, he had agreed to having her write/edit. Any author who has any editor -- to go to the other extreme; I'm not saying that that's what it was -- at that point, while they begrudged having an editor in the first place, then is willing to have the editor come in and do something.

MR. SMITH: Okay, Your Honor, if you want to talk about her subjective state of mind, or his, unfortunately he was dead the first time the legal issue came up, and that was when they asked her, they handed her the document which they should have handed to her on day one....

JUDGE CALABRESI: In all the contracts, and in all the billings, he always described himself as author, "by" himself, didn't he?

MR. SMITH: That's correct, Your Honor. He was an author, no doubt about it, and an "author" under the Copyright Act is someone who comes up with original expression that's fixed in a tangible medium, either by....

JUDGE CALABRESI: Is there any evidence in any of those documents that she was a co-author? Is there anything that she did at the time, any documents that she put out at the time, in which she described herself in the way that he described himself in these?

MR. SMITH: Yes, in the documents? Well, there's the document that they handed her, and it said it would have transferred all copyrights to the New York Theater Workshop or to the Larson Heirs, and she refused to sign it -- this is before opening night! So if you're trying to get at whether she had some sense that she had rights as a statutory coauthor, I think she did....

JUDGE CALABRESI: But she had copyright rights. That's a different question. That she had copyright, that's the first point in Childress, and I take it that the trial court found that there was independently copyrightable material that she made, that she had, and there is no indication that she turned that over.

MR. SMITH: That she turned over her copyrights?

JUDGE CALABRESI: Her own, yeah.

MR. SMITH: That's correct, Your Honor. There is no doubt about whether she is an author. The question is whether she is a joint author or a sole author, and I think that is what you're alluding to. But I'm saying that joint authorship doesn't require any words, for example. It's not like statutory marriage, where you say "I do." It's more like....

JUDGE BRIGHT: Well, if you're a joint author, you're entitled to fifty per cent of the royalties, aren't you?

MR. SMITH: In this case, fifty per cent of the new material, which works out to sixteen per cent.

JUDGE BRIGHT: So you're just asking on new material. But that isn't what the copyright law says, as I understand it, or am I wrong?

MR. SMITH: I think you are, Your Honor....

JUDGE BRIGHT: Okay, that's good enough. You know more about it than I do. You don't need to explain.

JUDGE FEINBERG: Mr. Smith, you said there were three things you wanted to bring to our attention that weren't in the briefs. I would like to hear what those three things are.

MR. SMITH: Thank you very much Your Honor. The first one was the legislative history, and if I am allowed, I'd like to hand up one sheet of paper to the Court at the end of my argument. The second item, well, I started to talk about it, that is, that Congress has set up a whole system of copyright that allows collaborators to have rights, and including ownership rights, in a whole variety of situations where it may be that they and the other collaborators have no idea that this is happening. In the joint work context, that's exactly what you had in Maurel and Marks, where, in the Second Circuit, the battling parties, none of them wanted the others to have any rights or thought that the others had any rights, except for persons claiming joint authorship, of course. But you can also see how this works in other areas of the Copyright Act. That's why I was talking about works for hire, because Reid is a work for hire case, but at the same time it's a joint work case, because the Court said, flat out, that it is possibly, and looks like, a joint work. In Reid, you had a dominant party, a controlling party. That was the entire argument that CCNV, the controlling party, was making to the Supreme Court, and with all of the employer groups, saying the controlling party had the power to determine everything going into this work, and therefore it's a work for hire. The Supreme Court said no -- no, it's not enough that you're the controlling party. The question is, are you the employer, or did you get in writing? You have to get it in writing if you want to have an independent contractor deprived of joint authorship rights or sole author rights.

JUDGE BRIGHT: That's in your brief.

MR. SMITH: You're right. The other thing that I wanted to say that's new, is that there are two cases I didn't put in: a Tenth Circuit case, and a Seventh Circuit decision by Judge Posner. One of these decisions just came out after the briefs; the other one I have no excuse for, Your Honors, it just didn't show up on the radar. The Tenth Circuit case is Goodman v. Lee, 78 F.3rd 1007. This is a case where the Tenth Circuit found statutory joint authorship, even though the principal author registered the copyright in this own name, said he's the sole author, said he has the sole rights; he received billing in some cases as the sole author....

JUDGE FEINBERG: We couldn't follow that case after Childress, could we? We could not follow that case, even if we wanted to, and I'm not suggesting that we do, after Childress....

MR. SMITH: I think you could. Because it's not about legal coauthorship. That's not what you're looking at, whether he had.... This guy, in the Tenth Circuit, who says he wrote "Let the Good Times Roll," a rock'n'roll song, he thought he was the legal owner because he was the head honcho, but that doesn't make him necessarily the statutory sole author, if he has a practical and layperson's understanding that he's writing with this woman, this woman Lee....

JUDGE CALABRESI: I understand that that's what the Tenth Circuit may be holding -- I haven't read the case, so I don't know -- but Childress specifies some criteria for finding that joint authorship, and we are bound by Childress, which I take it is the thrust of Judge Feinberg's question.

MR. SMITH: Okay, well, in Childress the Court says there must be some distinguishing characteristic above the statutory definition....

JUDGE CALABRESI: There is no case in the Tenth Circuit akin to Childress, is there?

MR. SMITH: I don't know Your Honor, I certainly haven't found one.

JUDGE FEINBERG: And what was the Seventh Circuit case? Just give us the cites.

MR. SMITH: It just came out less than a couple months ago. 130 F.3rd 798. I'm not going to tell you that it's right on the facts, but it tells you something. This is where a student researcher and coauthor of a professor's article which was published, claimed coauthorship. There was a factual issue as to whether indeed the professor wrote the whole thing. The professor said he did, but this was incredible -- it just didn't wash. The point I am making, really, is just that the Court never talked about whether these people ever thought of themselves as statutory coauthors or co-owners. The only issue really for the Court was, because they were already collaborators, was whether in fact....

JUDGE CALABRESI: Judge Posner didn't recuse himself in a case of writing with an assistant?

MR. SMITH: In this case, the student wrote the bulk of it, so I think he identified more with the student. (laughter) But in any event, he said that the student "certainly qualifies as a joint author." "His contribution was both copyrightable and significant." Then Judge Posner talked a little bit about the Childress problem of research assistants and what not, not talking about Childress, unfortunately, saying "the assistance that a research assistant or secretary or draftsman or helpfully commenting colleague provides in the preparation of a scholarly paper does not entitle the helper to claim the status of a joint author." And he cites Childress, with no discussion, and goes on, saying "to be a joint author, an assistant or collaborator must contribute significant copyrightable material." And I'm not suggesting that this....

JUDGE CALABRESI: There's no doubt that this is so -- that's the first leg of Childress.

MR. SMITH: That's right, and I find it interesting that he never discusses the other leg, and that the District Court says....

JUDGE FEINBERG: It doesn't really affect the strength of Childress in this Circuit. As I understand it, your real claim is that the District Court used the wrong test, even under Childress....

MR. SMITH: That's correct....

JUDGE FEINBERG: And so the remedy you want is that we send it back for him to apply the right test?

MR. SMITH: No, Your Honor, I think that you can see that the test is whether there is any distinguishing characteristic which Lynn Thomson proved in Court, to show that there was something more than just the fact that she wrote something....

JUDGE FEINBERG: But isn't the question of intention a matter of fact? We don't decide factual issues.

MR. SMITH: But the Judge already has decided all of the factual issues that you need. He has decided that they had an explicit conversation, where they talk about the new role, that she is going to write now, and where he's not going to say -- you don't say to an editor, "I will never say that I wrote what you did." Editors don't even get credit....

JUDGE BRIGHT: Let's get on the point. The point is, is this a question of law, or a question of fact. And if it's a question solely of intention, it's a question of fact. If it's a question of whether the District Court applied the right law -- because two authors contributed; he found there was a more than de minimis contribution -- the question is whether he applied the right law or not. Isn't that what we have to decide? I don't think there are any factual issues we have to resolve, unless intention is a factual issue -- which it ordinarily is -- but as I see it, one side is arguing intention including what was in the people's mind, and you're arguing that that doesn't make a damn bit of difference; it's what they did. That's the difference.

MR. SMITH: It's what they did, and what they said, and how they characterized each other, and the credit that she got, and the fact that they faced an empty page, as Jonathan Larson's friend testified....

JUDGE BRIGHT: Well, okay.

MR. SMITH: There's a whole series of factors -- we spent 11 pages on them....

JUDGE CALABRESI: Your red light has now been on a good while. Have you made the three points that you....

MR. SMITH: Actually I think that I have made the three points. I would like to elaborate on them more, but....

JUDGE CALABRESI: Well, you'll have two minutes in rebuttal. Thank you. We'll hear from opposing counsel.

MR. PARCHER: Your Honor, if it pleases, my name is Peter Parcher. I represent the appellee. Before I begin my argument, I just want to address one or two points that were raised by the Court. The first is, Your Honor raised the question of sole decision-making with respect to the play. I respectfully refer Your Honors to page 722 of Judge Kaplan's decision where he specifically says "I conclude that Mr. Larson retained, and intended to retain at all times, sole decision-making authority as to what went into the play." And he goes on to say that he had no doubt that it was a close collaborative relationship, and that they consulted each other about proposed changes, that there were -- he had no doubt that there were many cases in which one or the other came up with what he or she thought a good idea, but did not include it because the other in one way or another expressed reservations, but that's not....

JUDGE CALABRESI: "I find that Mr. Larson retained and intended to retain..." What were the next words?

MR. PARCHER: "Sole decision-making authority as to what went...."

JUDGE CALABRESI: "Sole decision-making." So you are saying that he did not make an erroneous determination based on sole ownership, but that this referred to sole authorship.

MR. PARCHER: Sole decision-making. Yes, sole authorship. What I want to say Your Honor is this. That either someone is contemplating overruling Childress, or beyond all doubt -- not a fair preponderance of the credible evidence -- beyond all doubt, there is no evidence of an intention on the part of Jonathan Larson, who worked on this play for six or seven years obsessively and compulsively -- yes, La Boheme what we know; Rent is what the next generation knows -- and I assure this Court, that this young man followed in the best traditions of the theater, working at the Moondance Diner at night at three, four o'clock in the morning to write this play, and the question then becomes, what was his intention when he allowed a dramaturg to come in.

JUDGE CALABRESI: Objective intention or subjective intention?

MR. PARCHER: Any intention that Your Honor wants to raise, I'm prepared to address. So I'll say all, without any reservation, qualification, or hesitation. No matter how you look at it, what this young man did was he took all of his scripts and said "Rent by Jonathan Larson."

JUDGE BRIGHT: I want to ask one question that bugs me, and maybe you can help me on the copyright law. As I understand the Copyright Act, there may be an inferior author who contributes something specific and material and not de minimis, but who could be controlled by written contract, and under those circumstances, that person gets no authorship rights. Isn't that right?

MR. PARCHER: That person would get no rights whatsoever, except if it was in the contract.

JUDGE BRIGHT: Right. Just contract rights as an employee.

MR. PARCHER: Well, it doesn't have to be an employee. This is important Judge.

JUDGE BRIGHT: I know, it could be an independent contractor too.

MR. PARCHER: Judge Newman -- you see there is a possibility of a misconception here....

JUDGE BRIGHT: What I really want to know is, isn't the burden on the person, the primary author, who uses another person's ability, to have something in writing saying "that contribution you make does not make you a joint author"?

MR. PARCHER: Well, that's for Your Honor to decide, but I can tell you how Childress decided it.

JUDGE BRIGHT: No, I want to know what the Copyright language is.

MR. PARCHER: Well, Childress decides the copyright law, at least for the Southern District of New York, and I believe for the United States of America. And what Childress says, is -- look, look, let me explain this to you....

JUDGE BRIGHT: I know what Childress says. But the facts in Childress are, to me, quite a bit different than the facts here.

MR. PARCHER: The facts in Childress are not relevant to this Court.

JUDGE BRIGHT: Well they are relevant to a decision, you know.

MR. PARCHER: Well, not on a question of joint authorship they're not. Judge Newman specifically said that the intention, two people -- look, in the theater, what this case is about, it happens all the time. There's a director. In this case, in the record, Jim Nicola, he made copyrightable contributions to the play, worked on them for years. There's a director. Michael Greif. He made copyrightable contributions to the play -- specific language we're talking about. I have no doubt that there were others. I have no doubt that....

JUDGE FEINBERG: Finish up your point.

MR. PARCHER: Yes. Then, what happens in the theater, there is an intention to merge the contribution. Here's the way that I think you ought to write it; here's what I think you ought to say; why don't you try this sentence. And that merges into the greater whole. If that happens, and there is no intention for joint authorship, that is, as a result of your giving me that, we're not changing you from director to director/coauthor; we're not changing you from dramaturg to dramaturg/coauthor. So that merges and it belongs to the author, and if you want something for it, and Judge Newman says this, if you want something for it, the burden is on you to come to me, the sole author, and say, if you want to use this, I want the following, and you'll get it or not -- and I must say this, because we're concerned about fairness here, you know the word hasn't been brought up, but were concerned about fairness -- this young man is dead. And for seven years of his life....

JUDGE BRIGHT: We realize all of that. I want to ask you this. You know I don't get quite the answer out of you directly. Let me ask you -- and I'm trying to work this out -- here's what the copyright law says: "a joint work is 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." And what you've just told me, about how the theater works, is that without a contract, the people who work together and contribute something substantial are coauthors under this language!

MR. PARCHER: No sir. What Judge Newman said, if you look at the cases that preceded Judge Newman, what they did, you'll find that it was a given, it's a given, that if I wrote something -- there's no challenge; there does happen to be a challenge here as to what was written and what wasn't; that's a whole other point -- but if I write something with you, and I give it to you, and it's in your play, what counsel wants to say to you is, all you have to find out is whether there was an intention to give it to you. If there was, I don't care what I was thinking at the time -- his client has rights. What Judge Newman says, no, no, no, if you do that, what's gonna happen is you'll get situations like editors, research assistants....

JUDGE CALABRESI: Let me see, counsel, if I understand you. We have somebody who is a primary author. We have other people who are doing things which are independently copyrightable, which they want to put into, merge into, this play.

MR. PARCHER: Yes.

JUDGE CALABRESI: You say that Judge Newman says that creates joint authorship only if there is some objective intent

-- maybe subjective intent, but at least objective intent -- that the incorporation of this into the work is to be treated as a joint work; that you need some objective indicia of that. Point One. If instead, there is not that, the party who is introducing this, if they are employees, have already been paid, and then they have no copyright on it, under the work-for-hire, but if they are independent contractors, they have that copyright in this other part, which may or may not be translated into this work.

MR. PARCHER: The answer is yes, if I understand you correctly. If I collaborate with you -- it's not just the theater; it happens to be the theater we're talking about here -- if I collaborate with you, I come to you, I'm the director, I have a contract -- I'm not an employee, but I have a contract -- I come to you as the theater director -- not an employee, but I have a contract -- I come to you, I'm a dramaturg -- I have an contract; it's not an employee contract -- I come to you, I'm an actor -- I have a contract; it's not an employee contract -- and I make specific suggestions to you; I intend to collaborate with you to the extent I made the suggestion -- that is, I let you into my tent -- I'm writing here alone and I bring you in -- so I get it, you can come in; you're the dramaturg -- you can come in; you're the director -- you can come in; you're the actor -- and you give me this. I will tell you what I'm thinking, which Jonathan Larson did in spades, times ten thousand. I think you're giving it to me, whatever you are giving, as a dramaturg, because I'm telling you, every step of the way, I'm the author, in my bios, in my scripts, in my interviews, in my contracts, he says billing as sole author.

JUDGE CALABRESI: What happens next?

MR. PARCHER: Excuse me, I'm not finished. And, what Judge Newman says -- and it's perfectly sensible; it's sensible in Manhattan, and with all respect, it's more than sensible in Minnesota; I would think that that's the home of common sense....

JUDGE BRIGHT: Well, I come from North Dakota.

MR. PARCHER: Same principle, same principle.

JUDGE CALABRESI: Let's get on with it. Less geography and more copyright.

MR. PARCHER: Okay. What Judge Newman says is if you, the one who gave this to me, in this collaboration -- minor collaboration, I must say -- but if you gave this to me, and you want something for it, beyond what you got already, i.e. your rights as a director, your rights... your money as a dramaturg, your money as an actor, then you have to negotiate a contract with me, because look what happens. Jonathan Larson never got the chance. If Lynn Thomson walks up to him, and says "you know something, Jonathan, I don't like...."

JUDGE CALABRESI: You're making an argument which is broader, which is going beyond this case. You are saying....

MR. PARCHER: No sir, I'm not....

JUDGE CALABRESI: Let me finish. You are saying that not only does not the fact that the primary author accepts these things -- makes the other person a collaborator -- that does not make that person a joint author, but you are saying that that other person has given up any copyrightable interest, in that collaboration, when it is put in. Now that is not before us.

MR. PARCHER: I think it is. I think it is.

JUDGE FEINBERG: But we don't have to decide that, do we? We don't have to decide that.

MR. PARCHER: If I may, most respectfully, at least give you the perspective here, not the argument, the perspective. Now Mr. Smith would have you believe, is that from the beginning of time, the earliest cases -- which I think were 1915 -- on this subject, when a decision was made that there was no joint authorship, that didn't mean that the person who gave something gave up their rights vis-a-vis the author. In fact, you should read his brief, because it's right in his brief, he calls it a "black hole" -- which is just wild! And he says what this means is, his client gets greater rights.

JUDGE FEINBERG: But we don't have to decide that. That may be the next case.

JUDGE CALABRESI: The District Court didn't rule on that.

MR. PARCHER: The District Court....

JUDGE CALABRESI: The District Court simply said there is not enough in this to create joint authorship. It did not -- because it was not asked to -- rule on what would happen

-- and I'm not saying it would rule for Ms. Thomson or rule the other way -- but it was not asked to rule what would happen in that. So why should we?

JUDGE FEINBERG: Mr. Parcher, it's clear you would like us to decide that....

JUDGE CALABRESI: If we decided it your way.

JUDGE FEINBERG: Yes, it's clear you would like that question decided, but is it necessary for us to decide it, under Childress?

MR. PARCHER: I believe to -- in terms of this play, it is necessary for you to decide -- in terms of Childress....

JUDGE FEINBERG: In this appeal?

MR. PARCHER: In this appeal, I believe it is too. Because to honor Childress, to honor Judge Newman's decision, if that's what the collective wisdom is here by the time we're done, you have to honor that part of Childress that says the person who is not a coauthor, who has contributed copyrightable material with the intention to merge, to collaborate, if that person wants any rights, short of joint authorship rights which they can't have, they have to negotiate a contract. Now I just want to say this....

JUDGE FEINBERG: Did the District Court decide this?

MR. PARCHER: It was... it was in the case.

JUDGE FEINBERG: Yes, I know. I'm asking you a different question. There are a lot of things that are in cases which don't get decided. Did the District Court decide this? Suppose we just affirm the District Court?

MR. PARCHER: You would be leaving....

JUDGE CALABRESI: A black hole?

MR. PARCHER: No, not a black hole.

JUDGE CALABRESI: Counsel, be careful in the argument you are making, because if you say that in order to find that there is no joint authorship, we have to find that any copyrightable interest that Ms. Thomson had, had been turned over, without pay, to Mr. Larson, then you're asking us to make a decision about what is entailed in terms of objective intent, which is quite complicated. Because 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. So be careful what you ask. You might get it.

MR. PARCHER: I understand that, and I have no problem with that. I have no problems with that. I have to be intellectually honest as an officer of the Court. I respectfully have to acknowledge that it is not 110 per cent necessary....

JUDGE FEINBERG: How about a hundred per cent?

MR. PARCHER: It's not a hundred per cent necessary. You can say, the record is clear, Lynn Thomson is not a coauthor, very comfortably....

JUDGE FEINBERG: Under Childress.

MR. PARCHER: Under Childress, and end it. I think that, most respectfully -- and I know it doesn't feel like I'm getting anywhere -- I think most respectfully, there's no reason to do that!

JUDGE BRIGHT: To tell you the truth on your argument, I mean your argument -- on my reading of the express language of the copyright law -- 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. Now maybe you're right -- maybe that's what Childress intended -- but I don't read it that way. I have to tell you that.

MR. PARCHER: I'll address myself respectfully to Your Honor....

JUDGE BRIGHT: You can disagree with me -- it's okay.

MR. PARCHER: Not only do I disagree, but on a scale of 110, it's 110. What Childress says, is of course when you get two people, coming into a room, and one gives the other, says why don't you try this suggestion, let's say it's copyrightable, whatever it is, why don't you say "the sky is blue today" instead of "the sky is green today," that's de minimis, copyrightable. That's all it takes to be copyrightable. What if you say that, Your Honor, in your opinion? Now, at that point, the question, the first question of Childress is, is that enough to make me a coauthor of your play, of your opinion, and, because of the language of the statute, and Judge Newman says, of course not. If that were the case, I can't tell you how many dozens and dozens and dozens of categories of people....

JUDGE BRIGHT: Well, what you're saying is Judge Newman's opinion is contrary to the wording of the statute. Is that what you're saying.

MR. PARCHER: No. What I'm saying is Judge Newman's opinion, like, in the time-honored tradition of our jurisprudence, explains to us what that statute must mean, and if Your Honor cares to look at the other cases, pre-Childress....

JUDGE BRIGHT: I've read those cases.

MR. PARCHER: I'm sure you have. What you're gonna find, is they all do the same thing. They took a look and said, without using this language, well let's see -- this is Maurel -- let's look at what the contract says, let's look at what the billing says, let's look at what the copyright registration says. Why are you looking at this? You're looking at that because you know there's an intention to merge....

JUDGE CALABRESI: Counsel, I think your red light has been on a long time, so unless the Court has further questions, we should hear a rebuttal from Mr. Smith.

MR. PARCHER: Can I say one... The statute says two or more authors, it doesn't say two or more persons. The question is, are you an author or a coauthor simply because you've contributed a copyright.

JUDGE CALABRESI: Thank you.

MR. SMITH: Your Honors, there was a very interesting point raised, and that is, is this a question of law, or a question of fact. I just want to reemphasize, it is a question of law. I don't have any problem with the facts. I love the facts in this case, as found by the District Court. We need those facts, and we have those facts. The law, under Childress, again, is that you must show some distinguishing characteristic to show that there's an intent of coauthorship. Now, let's examine what you don't have to show. Because Childress said that coauthors don't have to have any understanding of the legal consequences of their relationship. Also, they don't have to have any explicit conversation about it. Let's take sculptors, because I think it's easier to look at sculptors, because sculptors don't call themselves coauthors. The word, "coauthor," is alien to a sculptor. But if two sculptors -- as in the Fisher v. Klein case by Judge Leval, which is in our brief -- if two sculptors are sitting there, or one standing over the other, helping, suggesting, both adding things to the work, they don't have to call themselves coauthors. They don't have to say that they're joint authors. They would never say such a word. "Authorship," in the layperson's mind....

JUDGE BRIGHT: Let me ask you a question. One sculptor does the feet, and the other sculptor does the rest of the body. Now under your theory, since it's one unit of work, the guy who does the feet gets fifty per cent of the royalties, isn't that true?

MR. SMITH: Absolutely, Your Honor, no doubt about it. That is the teaching of Reid, and the employers of the world were up in arms about Reid, the Supreme Court case that said, here's a guy who....

JUDGE BRIGHT: You've answered my question. You don't have to go into detail.

JUDGE CALABRESI: And you don't think that members of Leonardo's workshop worked on "The Last Supper"?

MR. SMITH: I don't know Your Honor, but if they did...

JUDGE CALABRESI: I do. I was there. (laughter)

MR. SMITH: Were you Christ? (laughter) I don't know, Your Honor, but we have a statutory scheme here, and some people may think it's harsh. It's not just copyright. Look at common law marriage -- same thing. People live together -- it doesn't matter whether they go around calling themselves husband and wife; it doesn't matter whether the husband doesn't know that the wife has any rights; he can't throw her on the street, or vice-versa. The wife can't throw the husband out, if she's the breadwinner....

JUDGE CALABRESI: Let me ask you what may be a totally irrelevant question, but I'm just interested. Is the two per cent offer still on the table, or has it abated?

MR. SMITH: Your Honor, there's no settlement discussion at all. The other side refuses to discuss it. You're right, that it's not relevant, but it's an interesting point. I would like to make one last point if could, Your Honor.

JUDGE CALABRESI: Please.

MR. SMITH: Judge Newman talked about joint authorship intentions when he quoted the Maurel case as an example of coauthorship intent, and this is what he quoted, quoting Judge Hand: that the authors "agreed to joint authorship in the piece, and they accepted whatever the law implied with respect to the rights and obligations which arose from such an undertaking." Now this is so telling, because in Maurel, each of the authors disagreed, and the defendant authors saw themselves as the sole authors; they saw themselves as the sole owners. To quote Judge Hand, they had "a misunderstanding of the plaintiff's rights," and they "denied that the plaintiff had any rights whatever in the play"! And yet, the Maurel decision said: joint authorship. And I hope that you will say the same.

JUDGE CALABRESI: Thank you very much. We will reserve decision. We stand adjourned.