Sunday, March 27, 2011

Exit, Pursued by a Lawyer

Well it's coming up on five years since the lawsuit Edward Einhorn v. Mergatroyd Productions. Kat A. Reynolds, working on her MFA from the Savannah College of Art and Design (and a very all-around interesting person) interviewed me about the case the other day and that dredged up the whole thing in my mind.

So what have we learned?

My former partner, Jonathan Flagg and I technically won the case on both issues - the payment issue and the copyright issue.

Payment Issue
This was the small claims court matter that Einhorn (and his lawyer brother David Einhorn) later blew up into a federal case.

Jonathan said he didn't want to pay Einhorn $1000 (he was going to offer $500 had Einhorn deigned to negotiate with him.) The judge agreed with Jonathan on principle, if not on the exact amount. Judge Kaplan granted Einhorn $800. A difference of $300. So you might say Einhorn created a federal case to recover $300.

It should be noted that Einhorn was not hurting for money in the least. I have hesitated in the past to mention he comes from a wealthy family because although I suspected this (based on Einhorn's apparent lack of a normal day-job and the nice place he lived in on the upper west side of Manhattan, not to mention his overweening sense of superiority and sense of entitlement which eventually made it such a chore to work with him) I didn't actually have evidence. However I recently discovered that Einhorn himself discusses the fact that his inheritance allows him to spend his time doing off-off Broadway theater productions.

But if Einhorn had merely wanted to recover $1000 we would have only been in small claims court. But Edward Einhorn was ambitious. He saw this as a chance to establish a director's copyright.

Copyright Issue
After we fired Einhorn from the 2004 TAM LIN production, his brother sent us a "cease and desist" letter. The letter claimed that we were using Einhorn's intellectual property. Read it here. Because of this cease and desist letter, we felt we couldn't pay him anything because if we did it would be as if we agreed that we were using his intellectual property. As far as we were concerned he was doing work-for-hire.

The reason we went to court, instead of settling out of court, was because we wanted the Einhorns to withdrawal Edward Einhorn's ill-gotten copyright registration. They would not do it during pre-trial hearings. The trial ended when Judge Kaplan ordered them to withdraw the copyright registration.

Why do I say "ill-gotten"? Because Judge Kaplan said during his decision that Einhorn's derivative script failed as a copyrightable work for three reasons:

  1. The Einhorns registered the copyright for the purpose of filing a federal lawsuit

  2. The script was not substantial enough to warrant a copyright

  3. The script was a derivative work, and as such was supposed to have the permission of the author of the original work (that would be me) in order to have a copyright registered.

However, the Einhorns have not to this day withdrawn the copyright registration. Because the US Copyright Office is in desperate need of reform. For two reasons:

  1. According to law, a registration cannot be granted for a derivative work unless permission is granted for the registration by the author of the original work. Not only did I not grant permission, I had no idea what the Einhorns were up to until they sued me on the basis of their copyright registration.

    So how did the Einhorns get away with it? Because the US Copyright Office does not require proof of authorization. So the Einhorns defrauded the US Copyright Office.


  2. And they are still getting away with it, because even though a federal judge said it failed three tests of copyrightability and ordered them to withdraw the copyright, they didn't have to. Because in order for the US Copyright Office to withdraw a copyright registration, the holders of the copyright have to admit that the work they registered failed. In other words, the perpetrators of the crime (defrauding the US Government) have to admit that they committed fraud. And so all the Einhorns had to do was NOT ADMIT IT. Apparently a US Federal Court judge's opinion means nothing - only the perps' opinion matters.

    The mind boggles at this insane, criminal-friendly loophole.


Hopefully steps will be taken to reform these two failures of the US Copyright Office. If I had an inheritance, that's how I would spend MY time.

So Mergatroyd Productions technically won - the judge agreed with us that Einhorn didn't deserve $1000 and the judge agreed that Einhorn didn't deserve that derivative copyright registration. But the copyright registration still exists, and it cost $300K+ to fight the lawsuit.

But the real win, for which all the theatre world should be grateful to Jonathan Flagg (who financed our case out of his own salary - neither Jonathan nor I have inheritances) is that we actually went to trial, rather than settling out of court, which is what happened in the Mantello case, and got the judge to state for the record what he considered worthy of a director's copyright:
There is a very lively question, I suppose, as to whether that is an appropriate subject of the copyright as to which I express no opinion. If it is, however, the deposit copy certainly didn't cover it because it is impossible to discern with precision from the deposit copy just exactly what the movements were and what the positioning was.

With this one sentence the judge set the bar too high for any copyright-coveting director, using standard stage-directing practices, to reach. You'd have to create a document with highly detailed instructions for movement and positioning (which would be a massive work - I'm a technical writer, I know from how long it takes to write out precise action instructions) and you'd have to do it with permission from the playwright whose work you are directing.

So not only do we owe thanks to Jonathan, we owe thanks to the Einhorn brothers for being such litigious clowns.

To be complete - here is Einhorn's copyright registration. It will never do him a bit of good, and in my opinion it exists as a visible mark of shame on his character.

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