We will appeal immediately."
Thomson lost her suit seeking co-authorship and financial recompense, July 23, after a three-day trial in New York District Court.
"The judge [Lewis A. Kaplan] hasn't yet released his formal decision in writing," said Smith, "but we are, of course, deeply disappointed in his decision and will appeal immediately."
"I expect the arguments within six months, and a decision within nine months," said Smith. "It's a decision tailor-made for the Supreme Court. 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."
Those hoping to hear Thomson in her own words can catch her on a panel at the first annual NY International Fringe Festival, Aug. 19, 2-4 PM. With Village Voice critic Michael Feingold, playwright Kirk Bromley, NYSF director of play development Shelby Jiggetts and Nada executive director Aaron Beall, Thomson will debate "Write And Wrong: The Function of the Dramaturge."
Smith continued, `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 law 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.
"Opposing attorney Peter Parcher did a wonderful job. 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 a day earlier, 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.
The New York Times reported July 22 that Thomson was paid more than $10,000 for her contributions to Rent. Her initial contract with New York Theatre Workshop, where the musical originated before it's Tony-winning move to Broadway, was for only $2,000. It's understood that Larson had a similar contract.
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 testified that 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.
Parcher has 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.
Larson attorney Jay Harris told Playbill On-Line in Dec. 1996 that Thomson was paid $10,000 for her work and continues to get a $50 per week royalty for the run of the show.
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."
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