Russell Smith, attorney for dramaturg Lynn Thomson, told Playbill On-Line (May 7) it will be another month or two before the appeals court announces its decision regarding her lawsuit against the family of Jonathan Larson over royalties from the musical Rent.
Oral arguments began in late March in the Federal appeal, which claims that Thomson was a co-author of the show, even if she doesn't have an official contract saying so.
The Larson family has asserted from the start that Thomson is getting the fee and credit to which she agreed, and deserves no extra.
Smith said he is heartened, however, by "the language and the tenor of the judges' comments" during the appeal. He notes that presiding appellate Judge Guido Calabresi has said it can be "taken for granted" that the lower court ruled that Lynn "wrote" portions of Rent which are "independently copyrightable" and "non-de minimis" (substantial).
The way Smith sees it, the main question now is whether Thomson will be ruled a co-author (entitling her to 16 percent of the royalties), or a sole author of her own material, which would allow her to ask for a licensing fee -- and withdraw permission to use her work if the Larson Estate doesn't compensate her properly. According to Smith, grosses for Rent have already topped $150 million, yet Thomson gets just $50 a week for her dramaturgic contributions. Still, all Thomson really wants, says Smith, is "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 she intends to publish on the subject."
Asked to give his thoughts about the trial so far (May 7), Larson attorney Orin Snyder (of Parcher, Hayes & Liebman) preferred not to comment on the proceedings.
Here's the back-story on the Rent trial:
"We will appeal immediately." Those were Smith's words when Thomson lost her suit seeking co authorship and financial recompense, July 23, 1997, after a three-day trial in New York District Court. On Wednesday, Aug. 27, Smith officially filed his appeal. On Oct. 10, Smith filed his appeal brief. The appeal is being heard by a trio of judges, rather than the "en banc," whole court Thomson's camp would have preferred.
On Jan. 2, the Federal Appeals Court accepted a brief from the National Writers Union in Thomson's behalf. According to attorney Smith, "The Writers Union bases its argument on the trial judge's findings that Jonathan Larson expressly asked Lynn Thomson `to write,' in a conversation during which, according to testimony credited by the Court, he asked her in essence to serve as playwright, and that Thomson not only wrote `copyrightable' material, but `was a significant force in turning the studio production script into the hit that Rent became.'"
In researching the appeal brief, Smith also discovered another point he'll raise for the Court: "One reason the court has found works to be `joint works' is that the alternative can be unthinkable. Imagine if Lynn Thomson would be able to claim rights only to what she added to Rent -- and could, in fact, be allowed to pull that work from the play. An author is allowed to stop anyone from using his or her work! The court is playing with fire, because you can see a future situation where, say, the guts of "One Song Glory" would have to be taken out, CDs would have to be stopped, etc. It's a right she's loathe to enforce and has absolutely no intention of doing. Especially because a co author doesn't have that right."
"We're confident the Court will realize how crazy it is to make the word "joint" be dependent on the legal intentions one of the contributors," said Smith. "Larson left no will, so the heirs get all of his copyrights. That's the law, and we have no problem with that. But it's an example of where the law doesn't look at intentions that weren't put down in writing."
On Aug. 20, playwrights Craig Lucas and Tony Kushner, dramaturg Morgan Jenness, and Yale Drama School's Mark Bly all signed a statement directed towards the media, supporting Thomson: "We appeared as witnesses in the Lynn Thomson Rent case. You may not be aware that the judge completely accepted Lynn Thomson's claim to have written significant and copyrightable portions of Rent -- since the New York Times and several other major periodicals did not report the fact... This is an important decision which impacts directly on the lives of many of us; the central ethical issue is that of collaborators in the theatre being equitably remunerated for labor contributed."
"It's a decision tailor-made for the Supreme Court," Smith told Playbill On-Line in July. "They've never debated the nature of joint works and who should be rewarded for their contributions. The judge found she was telling the truth. He found the Larsons were minimizing her contributions and lying about her."
Continued Smith, "We lost, but the judge found in favor of Thomson on every factual point. Her memory might have failed her, and he couldn't be sure her total contribution to Rent was 9 percent, but he said it was close to that. He found it was a copyrightable contribution and that Thomson was a significant force in making Rent a hit."
Smith elaborated further, Aug. 22, saying, "The judge said Lynn created property, but the Larson heirs argue that he's essentially taken that property away from her and given it to the Larson estate. We have this sort of vacuum where her rights went into; there's nothing in the law that provides for that. The Childress decision, on which this decision was based, says you have to apply the definition of two people getting together to merge compositions as `co authors,' and that requires a manifestation of the concept of joint authorship. But the court doesn't say what the criteria are to prove it, which is interpreting Childress as being more strict than it is."
Thomson also discussed her suit with Playbill On-Line, July 25, noting the wavy boundary between authorship and dramaturgy: "The case has always been based in the fact that I did actual writing. Many dramaturgs do that. I've never asked for credit other than as a dramaturg. I did not contribute half the play; if I had contributed half, I would have taken the term `co-author.' Also, under the Copyright Act, someone who writes something with somebody else OR creates something with someone else -- and it doesn't have to be 50 percent -- is still co-author."
"It's been disturbing how my claim has been misrepresented. I think the case does say there are dramaturgs making massive contributions but not receiving due credit. I hope it will continue to be important that I, as a dramaturg, stood up and said you can't just take my work and use it and give me zero dollars."
Asked if she saw a correlation between her suit and that of Joe Mantello, who wishes copyrightable director's credit for his work on Love! Valour! Compassion!, Thomson said, "I'm for his suit, but my belief on the Mantello case...it's never been established that his directorial work is copyrightable. I'm NOT trying to prove that all dramaturgy is copyrightable. It's just that in this case, I wrote about nine percent of the words. Plus I provided solutions that are verbatim in the text -- rather than just the standard dramaturgical work of asking questions and getting responses."
Thomson also chastised the Dramatists Guild for siding with the Larson estate. "There's a huge bigotry revealed against dramaturgs by the Guild. They attack me because I'm called a `dramaturg' rather than `co-author.' And yet, this union claims to represent people who write, and they're saying it doesn't matter that I wrote. That's a deeply disturbing prejudice. Essentially, I can't drink at the same water fountain as authors because because I'm credited as a dramaturg."
Asked if her suit against a major Broadway entity has put a freeze on her career, Thomson, head of the dramaturgy department at Brooklyn College, replied, "I haven't experienced blacklisting yet. Just after the lawsuit was filed I was hired to work on The Batting Cage by Joan Ackerman, set to go Off-Broadway this fall. I don't know what the future will bring."
Continued Thomson, "Every profession in the theatre has had to fight this fight. I went back to a great book, "The Revolt Of The Actor," about the Actors' Strike of 1919, and you would not believe the rhetoric. This was because actors had the temerity to ask to be paid for rehearsals. Even then they were saying, `If we turn artists into mere laborers, it'll destroy the profession.' Everybody's got their bit of the pie in this business, and they don't want to give it up."
"But here's the broad picture," continued Thomson. "If dramaturgs are not treated fairly, and no one says `yes, you should be paid for the work you did,' it could become a nightmare. The American theatre has become increasingly dependent on these people helping playwrights. When I asked to be put on the title page of the Broadway production, I was told "no." Why? `Because we don't have to.' Just because I didn't have clout behind me."
"I do think this lawsuit will help dramaturgs. We are not second class citizens, we have equal rights under the law and must stand up for that. Under no circumstances would my winning this case mean that all dramaturgs would be considered to create copyrightable material. The media has perpetuated that, but it's just not true. Dramaturgy and writing are not mutually exclusive, even if there are a percentage of dramaturgs who do both. The jobs overlap but are not identical. And copyright is a fundamental right to own what you create. In forming the last copyright act, there was a movement to put in the law the need for a written contract, but that was defeated. Now the law simply says that if two people create something, they both own it. It isn't my responsibility to prove in writing we had a deal; if New York Theatre Workshop didn't want to consider me as a co-writer, it was their responsibility to put in a work-for-hire clause."
Attorney Smith told Playbill On-Line (July 24), "The judge agreed that Larson told Thomson, "Of course I want you to help me write this,' and he found that Larson told her, `I would never claim credit for what you wrote.' All those findings are perfect for going into the appellate court and saying `when someone helps make the play a hit, they don't get zero royalties.'"
According to Smith, the Kaplan decision puts too much burden of proof on collaborators, forcing them to imagine too far ahead the results of their project. "To impose a burden on a couple of artists saying that both of them have to prove they both understood going into the project that they both could do movie deals is just not the burden of the law and of common sense. I can't wait to get to three appellate judges unafraid of being reversed, who can say with confidence that copyright statutes are designed to reward artists for contributing copyrightable material."
Continued Smith, "This judge didn't even address the other copyrightable contributions Thomson made. His reason for ruling against us was the Childress Case , which requires there be an intention of joint authorship. But most artists don't have lawyers. This is too much to require people to prove. The judge made it obvious he wanted to rule for Thomson but could not because of this narrow decision. We were hoping to win but we got the perfect decision to take up on appeal, because he found with us on the facts and on a crucial legal point: Thomson contributed copyrightable material. I can't believe the appellate court would say she's entitled to zero. The judge said she was a significant force in making this play a hit."
Smith added, "The $10,000 Lynn received had nothing to do with her work with Jonathan. That money was for the changes made to bring the show to Broadway from NY Theatre Workshop. For co-writing Rent she received $2,000; for her Broadway polishing, she now gets $50 a week. That's as opposed to hundreds of thousands and millions of dollars other people in the show are getting. It's an outrage, and I think the judge knew that. But I guess he feels it isn't his place to make the sort of decision that would have the commercial theatre establishment feel the case is upsetting the apple cart."
According to Rent spokesperson Jim Byk, of the Richard Kornberg office, Larson's deal with NYTW was not the same as Thomspon's; his payment was $8,000 pus a percentage of the gross of any extension at NY Theatre Workshop. Thomson's attorney Russell Smith said, "Everyone else that was involved at her level is receiving large compensation. Lynn Thomson can't even pay her rent with the amount of money she received."
"Opposing attorney Peter Parcher did a wonderful job," said Smith. "He got Lynn up on the stand and she didn't remember certain lyrics to 'One Song Glory.' But you know what? Jim Nicola, a witness for the other side, said he made as many contributions as Thomson did. I asked him on cross examination to name one -- and he said, `I have to look at the script.' Exactly what Lynn said. As for 'One Song Glory,' her main contribution was in saying 'we need a song here, and she contributed some of the lines.'"
Reached July 23, Orin Snyder, a partner in the firm representing the Larson estate, had an understandably different take on the trial. He told Playbill On-Line, "We won. It was total vindication of our position. The judge agreed Jonathan Larson is the sole author of Rent, and there was no way he intended Thomson as a co-author. She's not entitled to be considered an author. For the family, it was never about money; it was always about the son's legacy. It's not a case about dramaturgs; it's a case about Jonathan Larson and the authorship of Rent. Dramaturgs are dramaturgs and playwrights are playwrights."
After the close of trial business on Tuesday, July 22, Snyder, an attorney with the firm of Parcher, Hayes & Liebman, could hardly contain his (now prophetic) excitement. He had told Playbill On-Line, "Tomorrow it's over. And the court has indicated there could be a ruling from the bench."
Thomson claimed she was underpaid for her work with Larson on the musical that helped turn Rent into not only an Off-Broadway hit but also a long-running Broadway blockbuster and cash cow.
Snyder reported that on the stand Tuesday, July 22, Thomson "could supply no notes of lyrics she contends she wrote and couldn't recite lyrics from the songs."
On Monday, July 21, defense attorney Parcher queried Thomson on the stand, "Have you any written documentation of just how much you contributed to the show?"
Thompson answered, "In exact words, [Larson] never said, `you are co author,' and I never asked him. But we knew what we were doing...Money is not part of what this is about. In terms of storytelling, character development, Jon needed my help." According to reports, Thomson later told the court she collaborated with Larson on 9 percent of the lyrics and 48 percent of the recitative-style libretto.
In her suit, Thomson claimed she wrote more than a third of the musical's book and rewrote many of Larson's lyrics to give the overall show a more uplifting, energetic spirit.
Snyder, speaking for the Larson estate, stated, "There is absolutely no evidence that Jonathan Larson ever intended to treat any human being as his co-author. That includes plantiff Thomson, whom he regarded solely as a dramaturg." Snyder said that in contracts and in computer documents that Larson gave to NYTW "Jonathan is always referred to and refers to himself as sole author."
"At all times," Synder went on, "Jonathan acted as if this was his play. It was his life, his baby. He gave it seven years of his life. The idea that in his final moments he would give it over to someone else is simply impossible."
Asked if there were any surprises in Thomson's testimony and theatre luminaries who came forward to speak on her behalf, Synder said, "Not really. We knew what the evidence was in advance, so we were prepared."
Tony Kushner, who wrote the Tony and Pulitzer-winning Angels In America and Craig Lucas, author of Prelude To A Kiss were among those who tes Fhat Thomson "transformed" Rent. Robert Brustein, head of the American Repertory Theatre, and Bernard Gersten of Lincoln Center Theatre have come forward for the defense (Larson estate).
The New York Post reported earlier that the Larson family offered a sum reported to be $100,000 to settle out of court, but Thomson refused and then made a counter-offer that was turned down by the family. Rent spokesperson Byk told Playbill On-Line (July 25) that no actual sum was ever discussed. "Thomson came to the family with her request and they offered one percent of their royalties, which she rejected. Later on she started making her claim -- she says in late April as the show was opening, but the Larson family claims wasn't until the latter part of August -- and then the family offered her two percent, which she again turned down and started making additional demands." Attorney Parcher had argued that Thomson's contributions were fully covered in her contract with Larson.
The trial has led many in and out of theatre to wonder what exactly does a dramaturg do. Typically, they work with writers, suggesting ideas and solutions to perceived problems, and editing the work. Thomson is referred to in Rent's official billing as dramaturg, not co-author.