Monday, February 17, 2014

More thoughts on Edward Einhorn v. Mergatroyd Productions

Since the Strange Case of Edward Einhorn v. Mergatroyd Productions ended eight  years ago, there has been a small but steady stream of legal/scholarly documents that reference the case.

This one, Making a Federal Case for Copyrighting Stage Directions: Einhorn v. Mergatroyd Productions, 7 J. Marshall Rev. Intell. Prop. L. 393 (2008) by Jennifer J. Maxwell ends in a particularly offensive way:
Unfortunately, Einhorn failed to produce enough evidence for the judge to find in his favor. But Einhorn, like most directors, just wanted recognition for his important contribution to the collaborative art of theater. Regardless of recognition or money, directors are entitled to copyright protection if their stage directions satisfy the requirements of the Copyright Act. The Einhorn decision gives hope to future directors by highlighting the issues crucial to proving a case of copyright infringement of stage directions. 
Furthermore, granting stage directions copyright protection would be consistent with the intentions of the Copyright Act and other areas of copyright law. Directors are largely responsible for creating the parts of a play that cannot be told by words, but are necessary to the telling of the story. Such contributions should be entitled to copyright protection. As Judge Learned Hand once observed: "[A] nod, a movement of the hand, a pause, may tell the audience more than words could tell. To be sure, not all this is always copyrighted, though there is no reason why it may not be." 
What Einhorn "just wanted" is an interesting question and one that I have never quite discerned to my satisfaction - although somehow this law student seems to think she has accomplished the feat.

Judge Kaplan opined:
I find that no such (blocking and choreography) script existed before Mr. Einhorn was fired from the show, nor was there any intention on anybody's part that any such script ever be created. Mr. Einhorn claims that during the course of his direction of the show he made handwritten notes on a copy of Ms. McClernan's script from which Plaintiff's Exhibit 52 (blocking and choreography script) was prepared... He claims these notes were made contemporaneously during the direction of the show. I'm sure at least some of them were. The script, in any case, is incomplete. It ends at page 35 whereas the entire blocking script, so-called, Plaintiff's Exhibit 52, is over 100 pages long and the material added by Mr. Einhorn accounted for very few of those pages. So, the majority of any notes that Mr. Einhorn may have taken in connection with directing the show have never been produced and no really satisfactory explanation, at least none that I credit, has been offered for that... But, Mr. Einhorn decided to parlay whatever notes he had into building up a claim here in an effort to get the $1,000 he felt he was owed or, if possible, more, and that resulted in the production of Plaintiff's Exhibit 52. Why prepare Plaintiff's Exhibit 52? Well, the reason was that Mr. Einhorn, aided and abetted by his brother, decided that they were going to file an application for registration of copyright, the filing of which is a prerequisite to a lawsuit...
Contrary to what Ms. Maxwell believes, Judge Kaplan clearly believes that Edward Einhorn's copyright claim was trumped up purely so that Edward Einhorn and his brother could create a case against Mergatroyd Productions over the disagreement of Einhorn's director's fee.

However, Edward Einhorn himself has consistently attempted to conflate the issue of getting paid $1000 for directing the 2004 production of TAM LIN and his registering a (fraudulent) copyright based on my play TAM LIN.

It's clear that Maxwell doesn't fully understand the TAM LIN case when she writes:
If stage directions are classified as derivative works, directors would receive
copyright protection for only the director's contributions to the play's script. The playwright would still have rights in the script he or she authored. Consequently, playwrights are well protected and should not fear a director's ability to copyright stage directions. Appropriate limits on directors' copyrights will also ensure that the theater industry is not unduly restrained.
If stage directions are classified as derivative works (which of course they are) then the director would have to receive permission from the playwright to register the copyright. (Did Maxwell even research the issue?) And that would strike the entire matter of a director's copyright more dead than a great reckoning in a little room. Only a complete idiot of a playwright would grant permission, knowing what someone with no sense of shame, like Edward Einhorn, might do with such a copyright.

Maxwell appears not to understand the problem with the US Copyright Office: it does not vet the scripts it registers. And so what Edward Einhorn did was to remove my name entirely from the TAM LIN script and then submit my script in its entirety, along with his stage directions scribbled on it, as evidence for his primary copyright registration for "stage direction and choreography."

If I knew then what I know now, I would have sued him for that clear violation of my copyright.

After hundreds of thousands of dollars in legal fees we got a US federal court judge to declare Edward Einhorn's copyright invalid - but all that could have been avoided if the Copyright Office did something to justify its existence other than simply performing data entry functions for fraudsters like Edward Einhorn. But since it will not step up its game any time soon, the entire "derivative works" issue is moot - the wealthy will take advantage of the dysfunctional copyright system to pull epic tantrums through the US courts system - which is exactly what Edward Einhorn did. Because if he wanted to take us to court for a disagreement over $1000 he could have gone to small claims court.

The rich are different from you and me.

The "appropriate limits" on a director's copyright is to have no copyright at all. And not only for legal reasons - the director interprets the playwright's script, just as (this was pointed out in the Dramatists' Guild amicus brief) a conductor interprets Mozart's music. If an argument is accepted that a director's interpretation is copyrightable then why wouldn't any conductor copyright his interpretation?

But something that gets overlooked all the time in discussions of this case is that Edward Einhorn didn't sue me for violating his copyright for the 2004 production which he directed - Edward Einhorn sued me for violating his copyright for the 2005 production, which he had nothing to do with! I directed the 2005 production myself, with a revised script and a completely different stage concept from the 2004 production. 

Clearly Einhorn believed that by ever once having had something to do with TAM LIN, all future productions of the play would owe him a fee. That is a practice that Ms. Maxwell appears to be supporting, although I don't think she thought the issue through sufficiently - or did enough homework - to understand that. 

And given the extreme difference between my staging of my play and Einhorn's, it's complete insanity to compare the case to Mantello v. Hall which the Einhorn legal team did during the trial. Jennifer J. Maxwell has this to say:
Mantello v. Hall, a case involving a theater company that had outright copied the original stage directions of the director, illustrates the importance of the amount of the work used. Mr. Mantello, a director, created stage directions, which at the end of Act I, put Gregory, a character in the play, behind a scrim, upstage left, working on a dance. Gregory was in the exact same spot, doing the exact same thing, in the Caldwell production. The director watching the infringing performance observed that ninety-five percent of the show was an exact replica of his staging, including visual images, blocking and choice of music. Hence, had the case not settled, it is likely that the court would have found in this case that Caldwell's use was not "fair" but rather an infringement of Mantello's work due to the blatant copying of such a large amount of the stage directions.
That is a huge leap there to say the court would have found the case in favor of Mantello, because Mantello's claim is utter bullshit, as I discuss here. The Caldwell Theater Company copied Terrence McNally's stage setting of LOVE! VALOR! COMPASSION! every aspect of which had to have McNally's approval. Mantello decided to claim the results of his collaboration with McNally as entirely his own property for the purposes of the Hall lawsuit.

I'm not a law student, as Ms. Maxwell was when she wrote her document, but I strongly suspect that the case settled out of court because it dawned on Mantello's legal team that in fact they could not win, because the Caldwell Theater Company was doing what they thought they were obliged to do, by the law and by theater tradition - the New York premiere production is considered the definitive version of the play.

But in any case Mantello's complaint against the Caldwell Theater Company was that they copied "his" staging so closely that it violated his creative property rights.

The fact that the Einhorn brothers would attempt to make such a comparison shows how utterly shameless they were in their efforts to punish my former partner and myself for daring to disagree with Edward Einhorn over his director's fee.

And you'll never get the truth about this from Einhorn - he claims he won because the judge ordered Mergatroyd Productions pay Einhorn $800 plus interest for directing the 2004 production. But the issue was never that Mergatroyd Productions wouldn't pay Einhorn, it was a disagreement over how much. My producer wanted to pay Einhorn $500, Einhorn wanted $1000. Einhorn getting $800 means that he dragged this entire thing through the federal court system (and boy, was Judge Kaplan sore about that) over $300. 

And of interest to playwrights - although Einhorn's disagreement was with the producer of the play (I wanted Einhorn to have the whole $1000) he held my script hostage - not the producer's script, in order to create a federal case.

The rich are different from you and me.

Thinking about this case puts me in a bad mood. So here's the evidence that the US Copyright Office finally cancelled Edward Einhorn's shameless, fraudulent, bullshit copyright registration once and for all. 




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