The New York theatre season is just getting started and so, it seems, is Alexander H. Cohen's battle with the League of American Theatres and Producers and the American Theatre Wing. He's just been granted a go ahead for arbitration against the League over control of 20 years of footage from Tony Awards broadcasts.
Last seen Off-Broadway in his autobiographical monologue Star Billing, Cohen, the creator and producer of 20 Tony Awards television specials (1967-86), feels he has sole proprietorship of the footage from those broadcasts. However, Tony co-producers TAP Productions (aka a teaming of The American Theater Wing and the League of American Theaters and Producers) feel they are joint owners of the material, and therefore entitled to consent in any deals made, not to mention a share of any proceeds from sale or lease of footage. (After Cohen's 20-year deal with TAP, the League and Wing did not renew their partnership with him.)
Cohen, who believes the 1967-86 Tony footage is his to do with as he pleases, has long battled the Wing and League on this issue and feels they've squelched potential deals by insisting that they, too, be asked for consent to use the footage or even turning buyers away. Since Feb. 13, Cohen (or, more accurately, his Tony production company: Bentwood Television Corporation) has been in arbitration with the League and the Wing on this issue. According to Cohen's legal counsel, Pollack & Greene, LLP, the judge took the Wing out of that case because "they were not a signatory to the agreement with Cohen." As reported by Variety, the League petitioned to block the action, but New York Supreme Court Justice Herman Cahn has now ordered the arbitration to go forward. The League is appealing that decision and seeking to delay arbitration until the appeal is dealt with. According to Pollack & Greene attorney Carol A. Sigmond, the League's request for an interim stay was denied today (Sept. 14), but another stay is pending and will likely be considered next week.
In his decision, the Judge wrote that although the deal between Cohen and TAP appears to have terminated in 1986, the work produced in those twenty years is still very much subject to decisions on licensing or sales.
As for the Wing, since they're no longer part of the arbitration, Cohen filed a July 9 petition to cancel their Tony servicemark, "Tony" Awards. [According to attorney Sigmond, "A service mark is a product symbol (like the Nike swoosh or the double o's in Cheerios)."] According to Cohen's petition, the Wing hasn't lived up to its agreement with the trademark office on use of its servicemark, which puts "Tony" in quotes, uses a Cornet typeface, and is in italics. For example, neither the initial, 1984 Crown Publishing book of Tony Award winners (edited by former Wing president Isabelle Stevenson), nor the updated Heinemann Books trade paperback reprint, utilizes quotes or italics when referring to the Tony Awards. Since the Wing didn't use the service mark, Cohen says, they've effectively abandoned it, and therefore aren't legally entitled to use it anymore.
Also, attorney Sigmond told Playbill On-Line (Aug. 16) the Wing has had problems with "naked licensing" of its servicemark. That includes not exerting enough control on how and where the Tony trademark is utilized.
Why file a lawsuit over typeface and punctuation? Because, according to Cohen, the Wing and/or League has no contractual right to the Tony footage, and their only possible claim to it would be if the Wing's servicemark were shown on the broadcasts. Cohen claims that it's not, and that the League's defense (and claim to the footage) would be legitimate only if it were.
League representatives referred calls to Wing representative Shirley Herz, who called the lawsuit "frivolous." The Wing has retained the legal firm of Shenier & O'Connor.
"It's Alex being Alex again," said Herz. "We aren't taking it seriously because we don't think it has any legitimacy. Maybe he wants publicity because he has a production [Waiting in the Wings] coming up."
Cohen's attorneys, however, feel the suits are already helping to keep the Wing and League at bay. "Every time someone wanted Alex's [Cohen's] film, the Wing and League destroyed the market value of his product," said attorney Sigmond. "They have stopped doing that since February's litigation." As part of his initial arbitration, and an example of his dealings with TAP, Cohen attached a 1998 letter from the Proskauer Rose law firm (representing TAP) to Joseph Feury Entertainment, Inc. The letter objects to Feury Entertainment's use of an excerpt of Lauren Bacall on the 1970 Tony telecast to be shown in a documentary broadcast on the Lifetime cable network. Cohen gave consent for the footage; TAP, which sought "identical terms to those consented to by Cohen" and informed Feury of those terms, did not.
The servicemark trial isn't scheduled to get underway until spring 2000, with discovery running Aug. 22-Feb. 18, 2000, Testimony starting April 18, 2000, and the proposed trial due to end Aug. 31, 2000.
-- By David Lefkowitz