Tari Stratton: I’m Tari Stratton, Director of Education and Outreach here at the Dramatists Guild. I’d like to welcome you all here for the second in our series of seminars called Contracts 101. I am very happy to introduce our Executive Director of Business Affairs, Ralph Sevush, who will be your guide.
Ralph Sevush: Thank you, Tari. I’m glad to have tonight a great panel of people. I have two Dramatists Guild Council members who’ve been working together for over forty years, and who better to talk about collaboration than Nancy Ford and Gretchen Cryer? On my right, we have attorney Fred Bimbler and agent Ron Gwiazda, who are experienced representing authors and dealing with the issues that arise from collaboration I now turn this over to the Director of Business Affairs, David Faux, who will be handling this evening’s questions, although I’ll pop in as necessary.
David Faux: Thanks Ralph. The importance of the collaboration agreement is apparent to me every day. Every day I get a question from someone saying, “I have a collaboration agreement with this person, but I want to change the music and they don’t want to change it” or, “I can’t stand this person anymore and I want to get away from this person. How do I get away?” And on the other side, “I like this person, we’re working well together, we just filed a joint copyright and we were told that we don’t sign a collaboration agreement.” All these little issues come up. Of course, everything I hear is skewed towards the bad news. I never hear about all the collaborations that just work smoothly and beautifully. Nobody calls me with that. But that’s the impetus for this subject tonight. I wanted to start by asking Gretchen and Nancy, it sounds like your first collaboration experiences were with each other.
Gretchen Cryer: Yeah. Well, when we were eighteen years old, we started collaborating together at DePauw University. We went to the same college and we wrote a couple of musicals that were fully produced there, a student-run musical called The Monon Review. Nancy and I wrote two shows there and then we wrote a third show that was done at Boston University in graduate school. So before we ever came to New York we had written three shows together. Our collaboration was different at that time though because Nancy wrote music and lyrics for those first three shows. I collaborated on the book with somebody else, so it was a different configuration from our New York writing. Then when we came to New York, I started writing book and lyrics and Nancy was writing music.
Nancy Ford: That other collaborator became an attorney. In New York, you may know or may not know what we’ve written about... how many shows have we written, four, five, six? And then two for American Girl.
Gretchen Cryer: Two for American Girl and then one for Theatre Works this last spring, Anne of Green Gables.
Nancy Ford: The thing is, when David called and asked me to be on the panel, he said it was going to be about the Dramatists Guild collaboration agreement, and I said, “Well the truth is I’ve never signed one- Gretchen and I have never signed one. I’d be a little embarrassed to reveal that...” He said, “Well, that will be interesting to people.” So I said okay, and I didn’t even know Gretchen was going to be on the panel. In fact, we came here thinking there were going to be a lot of other writers on the panel, not knowing that we were the only writers to talk about our collaboration. So this will be extremely spontaneous. As I read over [the DG Collaboration Agreement] to remind myself, I discovered that we sort of automatically did most of the things that are in here. Like in terms of things about who gets to decide what in the case of a disagreement. If we have a disagreement and it has to do with the book or the lyrics, Gretchen gets the final say, if it’s music, I have the final say on it. But we always toss things back and forth.
David Faux: But you were saying also that, other than with each other, you’ve had other collaborations and you’ve wished that you’ve had some sort of an author’s prenup as it were.
Gretchen Cryer: Yeah, I had a situation. Both Nancy and I had written with other people in addition to all the shows we’ve written together. I wrote just the lyrics for a show about the Booth family. The book was written by Austin Pendleton and the music by Arthur Rubenstein. We had a production at Lincoln Center in the late 60s or early 70s. I can’t even remember when it was, it was so long ago. Then then there was a production in the mid to late 80s at the Summer Fair Festival at Purchase. There were two productions of the whole thing. In the meantime, we were endlessly auditioning it and trying to get other productions of it, and it was rewritten many, many times. After the production that was at SUNY Purchase, it was supposed to have been picked up at that point for a Broadway production, but the producer decided that he didn’t want to pick it up and so it waned at that point. A few years later, Austin decided he wanted to do it as a straight play. It wasn’t as though he just took out the lyrics and used the same script minus the lyrics. He rewrote it. It still had the same characters and the same general plot, but it was a rewritten work. We had not had a collaboration agreement. I was just fine with the fact that Austin wanted to go ahead with it as a play because I thought after all these years we’ve tried and tried, so go in peace, go do the play. Frank Langella starred in the play. Arthur was very upset about this because we had, for 20 years or longer, been working on it as a musical and had almost gotten it on several times. It caused a lot of dissension then between the collaborators because we didn’t have an agreement. So, in situations like that, it seems like this is essential, to have an agreement. Nancy and I haven’t ever had a situation like that, where [she] decided to take [the] music and go do something else with it. I [haven’t ever] decided to take one of our musicals and make a play out of it.
Ralph Sevush: I just want to jump in here, with a question for attorney Mr. Bimbler. Fred, hypothetically, writers working on a deal without a contract; their relationship will be governed by copyright law. In a situation where a composer and lyricist and book writer have written a work, it’s been produced, copyright law might view that as a joint work if there is not an agreement otherwise. So in that case, if a book writer went off and took his text, then wouldn’t the composer and lyricist have a share of whatever he generated from that?
Fred Bimbler: On the presumption that it is a joint work, and that they’re joint holders of copyright, under U.S. copyright law, anyone owner of a jointly held copyright can dispose of nonexclusive rights in that copyright.
Ralph Sevush: With moral rights.
Fred Bimbler: With full moral rights. I have a situation where a client of mine is a European musical writer and the producers of that musical in the United States looked at the original commission agreement and decided that they didn’t have to get his approval to bring on somebody to adapt the book.
[Laughter]
Nancy Ford: I have a question for Fred. Since copyright accrues even if you don’t have a piece of paper once the public performance or once something is published when do –
Fred Bimbler: Copyright accrues on the affixation of the expression in a tangible media.
Nancy Ford: Well, you could also put it in an envelope and take it up to the Writers Guild and pay $15.
Ralph Sevush: No, that is useless. It’s just evidence, it doesn’t give you the benefits of registration, which include statutory damages, so you don’t have to prove damages, the damages are set forth in the copyright act. And the ability to bring an action in court requires registration and the most important thing is the attorney’s fees that you can get from the infringing party, which you could not get without registration.
Fred Bimbler: You have to be careful on that one though. You have to file within, is it 90 days of first publication?
David Faux: I think it is. Within three months of publication.
Fred Bimbler: Right, and publication is its own quagmire of what that is.
Ralph Sevush: Especially with theatre.
Fred Bimbler: And television, live television.
Nancy Ford: It seems easier to me now to copyright something because you go online and print up the form—well you can even fill in the copyright form and then print it online—and then you send it in with a check and that’s about it. It seems like it used to be harder if you had to write to the Copyright Office, get forms sent, and all that.
David Faux: What the Guild suggests when you have collaborators and you are registering for copyright is that you register your own contribution under your own name under a separate application and let the contract of the collaboration agreement rule how you’re going to interact with each other. We had just talked about some of the implications of having a joint copyright, either broadly construed by common law or submitting it as music and lyrics by, you know, John Smith and Jane Doe and how that can complicate the relationship down the road, especially if it sours. I was wondering if maybe Ron or Fred, you’ve had experiences where collaborations have soured and there hasn’t been a writing in place and how that typically if there’s a predictable course where things go after that?
Ron Gwiazda: I have a situation where it was a musical being written by three different people, and I made them sign a collaboration agreement and it went sour. They wanted to get rid of the book writer and having that piece of paper made it much more difficult to get rid of that person without any further compensation or obligation. In that instance having that collaboration agreement was very helpful to the person who was being let go.
David Faux: Can you elaborate on that a little bit? You’re talking about, if you used a Guild model contract, or something similar to that, you’re probably talking about the way two units can reject a third unit.
Ron Gwiazda: This was a very simple one-page piece of paper saying that all three owned the property jointly and any income had to be shared so it was much less complex than that piece of paper.
David Faux: Did you find that inequitable towards the book writer who was being let go or did you think this is getting messed up because of the writing I made them sign, or you think it worked out better because of it?
Ron Gwiazda: Well, it worked out better for the book writer whom they were trying to get rid of. It was just personalities that separated the three of them, but if she didn’t have that piece of paper, presumably, and I don’t know the answer to this, they could have dismissed her, not used any of her work and she really would have a leg to stand on.
David Faux: If the document said they are joint owners of a copyright and everything they do on that piece is shared, every copyright that accrues is a single copyright that they jointly own, not so easy.
Ron Gwiazda: But if they don’t sign, I mean if all they have is the collaboration agreement, which was the case –
Ralph Sevush: Then you’re stuck with copyright law, which also might deem them, joint authors. You sign a contract, in a collaboration situation, to contract out of the realm of copyright laws so that your relationship isn’t defined by the vagaries of law that change and that are subject to interpretation, but by the contract itself that you have negotiated with your collaborators. We should start talking about what the essential provisions of the contract that would be negotiated in that context.
David Faux: Well, probably the biggest provision is a question of merger when the separate contributions will become merged under what conditions. For example, some people say only after ten performances in a LORT theatre will our contributions merge, some people say only after a Broadway opening, some people say we’ve been working together forever, so it's merged right now as we write it. There’s usually a number of years within which that can happen.
Ralph Sevush: And these are subject to negotiation between the group, between the parties as to what would constitute merger; until that time, you each own your own contribution, individually, and if the work doesn’t merge within the time period you’ve selected, you can take your ball and go home. Or two of the units can reject the third unit.
David Faux: Of course, the policy behind this is that once the different contributions have been performed together and they’ve reached a certain commercial momentum, a certain commercial value, then they shouldn’t be pulled apart, right? And once it’s been on Broadway you shouldn’t start pulling it apart.
Ron Gwiazda: It has to do with making sure it has a subsidiary life. I advise against having a premature merger, because, as we all know, you go to a regional theatre, if the intent is to go to Broadway or to the West End, you’re at a regional theatre, you’ve gotten something up and it’s good, it’s still probably going to change. We try to hold everything back until it's really commercial because Broadway or West End is what’s actually going to get you a deal with Sam French, with Tams-Witmark, etc.
David Faux: Another clause that people are always asking me about is what is the percentage divide in terms of income and expenses and decision-making. I was wondering if Ron and Fred could speak to what the typical divide is among a musical with three units, assuming three distinct writers, the book writer, lyricist, and composer –
Ron Gwiazda: It’s never distinct because the book writer is always contributing lyrics.
Fred Bimbler: It’s usually a discussion that the collaborators have amongst themselves. Typically it’s usually a third, a third, and a third because the lyricist is giving something to the book writer, the book writer to the lyricist, the composer, so that is typical.
David Faux: In other words, usually it’s just a wash of suggestions going around and there’s no obvious –
Fred Bimbler: I’ve had collaborators walk in where they’ve written a lot before they’ve signed their collaboration agreement and they give me a list of the songs and they tell me I own 75% of this, he owns 25%. And you do an attachment that lists every song and your breakdown of who owns what of it. And then you start applying the royalty and the other income based on those splits, and it’s a lot of fun.
David Faux: In those situations, what are the complications when you only represent one of the collaborators, or do you usually represent all of them?
Fred Bimbler: In that circumstance, they usually walk in together. And then everybody signs a release. I explain the situation, I explain what’s good and bad for each of them and then they instruct me as a group as to how they want me to deal with the point.
David Faux: Ron, what kind of complications do you run into when you’re representing one collaborator of three on a work?
Ron Gwiazda: Sometimes I think that’s actually easier because if there is going to be this sort of negotiation of who gets what, if I’m not the agent for all three, I’m not sort of negotiating against myself as the other one’s representative. Sometimes that can be very tricky. There was a situation just recently where there were three people writing a musical, which is Broadway-bound, and somebody is no longer writing, and somebody else is being brought in. I took myself out of the scenario because essentially, I’d have to be negotiating against myself representing the two people. I try to, like Fred said, say to the authors to come in with what they want to put in place, and then I would facilitate that as opposed to representing all three and saying you should get X and you should get Y. It puts me in a very strange situation.
Fred Bimbler: If I am representing only one, I’m going to try to get everything.
Nancy Ford: What’s your phone number?
[Laughter]
Fred Bimbler: Within fairness and reasonability, because if you really make too harsh a deal in a collaborative environment, you are going to destroy that environment. There’s a practicality to it so we are creating art and not woodchips. Hopefully, we’re creating art.
Ralph Sevush: ls there ever any sense of portioning the authors’ share based on experience or based on the torchbearer concept of whose project it is?
Fred Bimbler: Do you mean if somebody much more famous is one of the collaborators? Sure. And if I’m representing the younger ones, no.
Ralph Sevush: Nancy, Gretchen, I’m curious, has your relationship been the same over the years in terms of how you make decisions and how you split revenues and all that?
Gretchen Cryer: Pretty much.
Nancy Ford: I have one little story to tell about how this [collaboration agreement} might have changed things in one of the collaborations that I had, not with Gretchen, but with somebody else. I’ve collaborated with about four other people and in only one case did the collaboration agreement become an issue. I looked back in my files, this was a long time ago, and I found an agreement that had been made up, but not signed, and had it been signed it would have changed the whole picture. There was a show that had a number of composers. I was one of them, and there was a lyricist and then there was a book writer, and the show was done at 88s, which I think still would have counted as a public performance, so had we had this contract signed the rights would have merged, but the lyricist decided that she wanted a whole different book after that and it became a situation where I didn’t want to continue with that project the way it was, but I didn’t want to deprive them of my music because it was about a third of the show. Then I had to figure out a way to let them have the music without being a collaborator because I didn’t want to collaborate on the new project. So I had my attorney work on it and I ended up spending a lot of money to get “Additional Music by” billing, instead of being one of the collaborators. And as I look at these papers now, I am wondering why I even had to do that, but I guess the show had already gone on, I was part of the team. For some reason, I thought I had to get a piece of paper, because they did not want to originally give me “Additional Music by,” rather than listing me as one of the collaborating composers.
Ron Gwiazda: How much of the music was ultimately yours in the final production?
Nancy Ford: I think seven out of 21 songs. (She sees his look) I know, but I was not a collaborator on it and did not want to be a collaborator.
Ron Gwiazda: Just say, “You can’t use my music.”
Nancy Ford: I could have said that at the time?
Ron Gwiazda: Well if it’s not signed.
Gretchen Cryer: But then they said, “Then we won’t be able to get this show on if we can’t use her name.”
Nancy Ford: “We won’t be able to get this show on and we worked on it for so long.”
Ron Gwiazda: Well then, “I’m entitled to these types of things and this is what I am going to have.”
Ralph Sevush: Collaboration contracts give you really good leverage to make a favorable deal.
Nancy Ford: Well, I got it eventually. $3000 later.
[Laughter]
David Faux: You mentioned that somebody was listed as a conceiver lyricist. I was wondering, in terms of non-authorial contributors, how they fit into your scheme when you’re collaborating?
Ralph Sevush: Like directors and dramaturgs –
Nancy Ford: Like a director? Oh well, after we’ve written it and the director comes into the picture, but Gretchen and I have always written our shows –
Gretchen Cryer: – completely –
Nancy Ford: – before we get a director. I know some people do, in fact, I’m working on a project right now where we have a director before it’s been done, not as a collaborator, but the director is having some input.
Gretchen Cryer: We have never had a director in from the beginning. If we just get an idea for a show, we don’t go find a director and then work on it with the director at all. We always completely write the thing first before we get a director.
Nancy Ford: And on this project, we’ve had no discussions about the Dramatists Guild’s rules, which I would adhere to. As writers, we do not share any of our royalties with the director.
Gretchen Cryer: You’re talking about the project you’re working on with the director now.
Nancy Ford: Yes. Where the director is working with the book writer mostly.
David Faux: And the acknowledgments. In terms of acknowledging contributions, it sounds like you’ve never had that difficulty because you’ve never brought in a director that way.
Nancy Ford: No, we’ve never had a difficulty with a director who said they wanted a piece of our royalty. We’ve just not had that experience because they’ve always come in afterwards. They may have helped somewhat in the shaping of a song or just helping us cut or focus, but there’s no situation like that that we’ve been involved in.
Gretchen Cryer: What is this thing about conceiver? What percentage does conceiver get?
Ron Gwiazda: Conceivers aren’t entitled to anything that’s given to the APC. Not allowed to touch anything that is the author’s income, though sometimes, I know the directors and sometimes conceivers may take pieces of subsidiary rights income.
David Faux: My impression is they go to the producers for the additional income of subsidiary rights.
Ralph Sevush: Under the language of the APC an author or co-author has to be someone making a copyright-able contribution to the work. “Conceiving” is by definition not copyrightable because it’s about ideas and ideas are not copyrightable. Only the specific expression of a particular idea. The idea/expression dichotomy is built into the copyright law and it is the central bone of contention that authors have with directors who currently sue or are being sued for claims of copyright in stage direction, which is to the benefit of a handful of Broadway directors at the expense of non-Broadway directors.
Fred Bimbler: There is no copyright in stage direction.
Ralph Sevush: Thank you.
Fred Bimbler: Under copyright law, there is specifically no copyright in stage direction. There is specifically copyright in choreography.
David Faux: Fred and Ron, have you represented people or had to deal with people who are saying I’m a conceiver, or I made this suggestion or I’m one of the actors and part of my improv ended up in the script, that kind of thing.
Fred Bimbler: That’s why you have workshop agreements.
Ron Gwiazda: Unless there isn’t one until after the fact, which yes, that’s exactly a situation that I was involved in on a Broadway musical, which essentially started out as an improv. There were four actors involved and when a composer and lyricist and a new book writer were brought into the process, there had to be a deal put in place with those four people. Like Ralph said, it was not just conceiving, there was actually something tangible. It was a play. So, it’s almost like an underlying right more than it is a conceiver. But yes, it had to be addressed because the musical wouldn’t have happened if the composer, lyricist, and book writer didn’t have that play to start from.
David Faux: So how did it turn out?
Ron Gwiazda: The show is a hit. It’s been running for three years.
David Faux: I got an email just before I came in here, where somebody had said that she and her collaborator had finished the work and she said she filed copyright, and they also formed an LLC under the advice of their lawyer out here, who is not an entertainment lawyer and it was in a Midwest state. She then said she talked to a New York lawyer and he said not to form an LLC because no producer is going to touch anything that's covered by an LLC. That seemed kind of strange to me too. I was wondering, Fred, as a New York lawyer -
Fred Bimbler: They wanted to contribute the copyright into the LLC so that the copyright was owned by the LLC?
David Faux: The way it read was that the asset for the LLC was this collaborated script.
Fred Bimbler: Who were they claiming to be the author? The LLC?
David Faux: I guess the LLC.
Fred Bimbler: That shouldn't be done. That cuts back the period of copyright significantly unless they're 105 and about to die. I don't remember the number of years, but an entity that is an author, is it 75 or 95?
Ralph Sevush: 95.
Fred Bimbler: 95, and then for individuals it's life plus 70. And then they keep cutting it back. But it's life plus 70 and 95 years for a corporate entity, a corporate author. So you don't want to do that. Again, the individual contributions of each of the collaborators is kind of undone with a joint copyright filing. You don't have merger, it's never been produced, right?
David Faux: It doesn't sound like it.
Fred Bimbler: They shouldn't do that, they really shouldn't do that. So I concur.
Ralph Sevush: With your fellow New York lawyer, whoever that may be.
David Faux: The only advantage I can think of is that maybe if you have a corporation that owns it and two people are in separate states and you want only one signature.
Fred Bimbler: The difference is if it's a corporate author or simply an entity that is disposing of the rights in the piece that was authored by individuals.
Ralph Sevush: It could be a Joan out company.
Fred Bimbler: Exactly.
David Faux: In other words, if they had started with self-production.
Fred Bimbler: Oh, they absolutely would need to file it.
David Faux: As authors, they would license it to their own LLC. Which is something we also suggest often if you're self-producing. It seems like ridiculous legal fiction.
Audience Member #1:Do I understand, you're saying form an LLC, put your work in it, you can maintain the authorship that's yours?
Fred Bimbler: Right.
Ralph Sevush: You can assign the rights in your work, you can lease the rights in your work to the LLC. Those rights become the asset.
Fred Bimbler: Many authors don't contract them· selves for the licensing of the work, they contract through their loan-out company which is designed to just take an income in those circumstances, particularly in stage from the producer side, they are going to insist that the author acknowledge it and sign an inducement letter concerning that parlicular - so you know the author is the author, not the loan-out company.
Audience Member #l: But if you run it through the company you still get the life plus 70 because it's yours.
Fred Bimbler: Right, because it's yours. You filed a copyright in writing.
David Faux: Another email I got today was from a gentleman who is trying to form a collaboration agreement and he said that he wanted to include a clause that if the book writer didn't work out he wanted to be able to bring in a book doctor. And he said, "I just don't have a good feeling about the book writer. What do you think?" I said, "I think that's a bad omen for the collaboration." (laughter) So I was wondering if there were maybe some more subtle signs early on that a collaboration might not be working out and from the benefits of your experience what are the things that you look for in collaborating. Obviously, your collaboration with each other has worked out well, but with other authors where you've either caught it in time or perhaps you've noticed something early on and then later you've thought, you know, I should have listened to myself early on and I should have known.
Gretchen Cryer: Well my only other major collaboration was in that instance that I talked about and I had known them as long as I'd known Nancy, almost, and we worked together without a hitch. The thing is that circumstantially it seemed like a reasonable thing since we hadn't been able to go forward with the musical. So it wasn't as though I thought, aha, way long ago, I think maybe this is going to happen down the line, I never never thought that at all. Again, l was in total agreement with the decision that the book writer made because I thought, might as well go ahead because we haven't been able to get it on.
Nancy Ford: I just think you have to proceed very cautiously and really know the person and try out a few songs together and you may make a mistake sometimes. I would say most of the collaborations I've done have worked out all right, one way or another they have worked out well. I think you should go very slowly before you really commit to a big project and you both have to be really passionate about the project or don't do it.
Gretchen Cryer: This guy that you say emailed you and said, "I may want to replace the book writer" I mean, really, that is a bad omen. If you're already having those feelings when you're starting, then just don't do it.
Fred Bimbler: From the point of view that I sometimes see it, which is when the collaborators are fighting, there are two things that I think they should have to look at and consider, which is number one, the art. Whether you work together well with the art. But the other part is can you sit in the same room for six weeks with each other without killing one another. You might have such personality differences that it's not going to work, even if you think the art is going to work. And I've seen that from time to time.
Ralph Sevush: Ron have you seen that? People walk into your room, into your office, thinking this isn't going to work?
Ron Gwiazda: I have, and I've been completely wrong. And then people come in and you think these people are going to work so well together and then six months down the road, it's just not working out. So I don't think you can really, really tell. I don't even think that authors can really, really tell until they get into the trenches and do the work.
Gretchen Cryer: You can write a piece together and maybe be getting along very, very well. But when it gets in production, a whole other set of skills and dynamics are going on, which could conceivably cause trouble. You had no inkling about it while you were just writing the thing together. I think it's a crapshoot, sort of.
Ralph Sevush: I've been involved in mediations recently with members who've been disputing collaboration situations, and again, like David, I only see things when they've hit the rocks. But I find that a common denominator in a lot of these disputes is that they arise when one author considers himself or herself the primary author, where they consider it as "my project" and they're bringing somebody else on board. When you're starting from that point, things can work out, but there are danger signals there. There's sort of a possessory quality to that where one author thinks of it as their project and the other person is sort of like a hired hand and is disposable in that way. If you are a two-thirds author or you are somebody who conceived of the project and have written to a certain point and then you're bringing somebody else in, you either have to open up completely to a collaboration and be willing to work together, including changing what you've written and treating the other person with the respect you would want to be treated as a collaborator. Or you have to pay them as an employer and commission them the way a producer would commission them. I think sometimes people who have initiated projects want to have it both ways. They want the other author to be deferential to them, but they also don't want to pay for that privilege. I think that's a common denominator in a lot of disputes that I'm seeing.
Audience Member #2: Isn't there sometimes a case where there is a main author? In my case, a long time ago, I took an option on a novel, so I was the one that held the option on the work. I then brought in a composer and we didn't sign a collaboration agreement until we actually had a production. But l did, and all the people involved considered me the main person as the book writer.
Ralph Sevush: Did you have a right to change the composer's music?
Audience Member #2: Well, since l was not musically knowledgeable in any way, l had the final say on everything and my collaborators agreed that I would own the copyright as long as they got their percentages.
Ralph Sevush: And you paid them a commission to write the music?
Audience Member #2: I paid them their percentages the same as we -
Ralph Sevush: Well, then you took advantage of your composer. David Faux: We have had collaborators come into mediation or come to us by phone or email saying that they do want to own the copyright and usually the first thing I say is you're going to have to add several zeros to the end of that number that you're suggesting to own the copyright. In the best-case scenario, if you're buying someone's copyright, it's prohibitively costly.
Audience Member #3: What about if you have an equal partner and you hire the partner, like the composer, to make a finished demo or do a little orchestration, something beyond just piano composition, is that often done and how does that work?
Fred Bimbler: That's not a composer.
Audience Member #4: I'm in a situation where I was the writer and co-lyricist on a show and it was produced and everything went great in it and it got a great review in New York Times and all that kind of stuff. What I am trying to do now is sort of prepackage the show, the score and the book and the script and whatnot, and I have most of it but I'm having trouble pinning down the composer to create the demo CD. He's been sort of helter-skelter and he's just, you know, a composer type, and I have to know, do I have any recourse to go forward myself? We don't have a collaboration agreement in place. We only had an agreement with the theatre and that's all been honored and it should be finished. So I don't know, do I have any recourse if I sort of want to move forward on this on my own, to either hire another composer to create a demo CD, or do I not have that recourse? I don't know really what to do next if I cannot get him.
Ralph Sevush: One view of that would say that you are joint authors of that and you could change it at your discretion, but you would be liable to the composer for an accounting. Unless there's an agreement to the contrary, it doesn't sound like there is, you could have somebody record it, but that doesn't bode well for your relationship with this composer going forward and it's never too late to enter into an agreement, even retroactively to govern how you are going to move forward with something because, again, you don't want your rights defined by statutes and judicial opinions and people's interpretations of those things. You want it governed by two reasonable people sitting in a room deciding what is best for the show and for themselves. Make a written proposal to the composer and say this is the deal we should work out so that we can move forward on this project. Let's get going. Because they're not getting anything out of it until that happens either.
Fred Bimbler: I mean you might also send him an email specifically saying, "I need to do a demo. You're not available. I want to move forward. Here are the three people I want to have produce this demo. Which do you like?" If he doesn't respond, just keep emailing, try to get him, and say, "Ok, I haven't heard from you in two months over this. I like this guy, I'm going to go with this guy unless you tell me in five days that you don't want me to go with him." Then you're going to be holding all the expenses, but maybe you have some argument that he has acquiesced to that choice.
Audience Member #5: I'm a playwright, I write a play, it's off-Broadway, it's a hit, it goes to Broadway.
Ralph Sevush: Congratulations!
(laughter)
Audience Member #5: Everything's wonderful, right? During the course of the play, suggestions are made by the cast. I'm bringing up the famous Rent case where someone made a suggestion to the author and they wanted half of the income, which was enormous. It wound up on a settlement, I understand, on Rent. How can I protect myself, as a playwright, against all these things, director, people in the cast, producer? How can l do that?
Ralph Sevush: Well with regard to producers, you sign a contract with the producer and that defines your relationship to the producer. A way of protecting yourself is not to sign a contract with anybody else because the case of Rent and other cases like it have continued to state that you can't get a co-author by accident. It takes an intention on your part to have a co-author and it takes copyrightable contributions by the other parties in order to get to joint or co-authorship. That's what the Rent case was about, that’s what the Trinity case was about, that’s what the Childress case was about. There's a line of cases that go back quite a ways that continue to say the same thing. Nobody's your co-author unless you want them to be. That would be represented in writing or more by course of conduct. It doesn't have to be a contract, it could be you've given somebody else co-equal credit as an author on your manuscripts, or they sign off on your contracts as a coauthor and during the rehearsal process, you give them the approvals a co-author would have. The court looked at indicia of authorship in the Rent case because the actual author was dead and they were trying to divine his intent by reading tea leaves (laughter), but essentially they looked at the course of conduct. Did he ever consider her, the dramaturg, a coauthor? And there was just no evidence that he did. Absent that, they didn't even get really into the issue of whether or not she made a copyrightable contribution. She did more than make a suggestion, so let's be fair. She worked for six months and a new version of the show came out of a workshop as a result of her contributions. But she was hired by the workshop to do that and she had a contract with the workshop to do that and she was paid by the workshop to do that. It was only after the show went to Broadway and after Mr. Larsen had passed away that she suddenly decided, "No, I'm a co-author of this work and I'm entitled to more than I am getting." And the estate was actually willing to entertain that because they appreciated the effort that she'd made on the work. But they were not willing to entertain the co-billing issue. That was what really drove the case, is her insistence on sort of a public acknowledgment that she had co-authored, certainly, the lyrics and the book of that show. The estate, Larsen's father and sister, were adamant that nothing dilute the legacy of that show to their son and brother's memory, and they were not going to allow anyone to claim co-authorship of it. That's why it went to court in the first place. It wasn't over the money really. But the court decided, "No, it's not co-authorship unless both parties think it is."
Audience Member #6: In terms of what is contained within a collaboration agreement could you differentiate between a book musical and a play with songs, like Guare's House of Blue Leaves or something along those lines?
Fred Bimbler: What I've seen is the author gets the normal royalty of five or six percent, and then the person who's writing the underscore and the interstitial music, they get kind of a fee and then you kind of force them into allowing it to be used at all times with the musical, but then they are going to get one percent or something.
Ralph Sevush: Nancy, have you done any underscoring or any of that for plays?
Nancy Ford: Yes, but I always just consider it part of my job as a composer to do the underscoring.
Ralph Sevush: No, I'm talking about plays.
Nancy Ford: Oh, of plays! I'm sorry. No, I have not.
Ralph Sevush: Have you represented any people who have done that?
Ron Gwiazda: It's usually a fee and then some sort of weekly compensation, but there's usually not ownership. Whoever writes the underscoring owns that music, it doesn't get transferred to the author of the play.
Fred Bimbler: But it can be used with a contract.
Ron Gwiazda: It can be used with compensation, but the composer owns the copyright to that music or arrangements.
Audience Member #6: I've been involved for several years with a situation that is probably too complex and slimy to go into here. But it might bring up some issues that would be of interest. I was brought in by a nonprofit to write English versions of lyrics of a musical that had been started in Russia. Then I was asked to do the rest, and we worked together once every six months or so and I don't speak Russian, the composer didn't speak English. He was very well known in Russia. He brought in his daughter to write some of the music. When I would put the original Russian poet's name on my copies, saying some songs based on, he said, "You can leave that off, you don't need that" and I said, "I have to." And then we did it in the United States in a student production and there was talk about doing a commercial production and they said, "You're a member of The Dramatists Guild," and then that fell apart. Then we did it in Russia and someone handed me a Russian contract to sign, which of course I worked for enough lawyers that I didn't do that and it was just to waive our royalties. The trips had been paid for by the various nonprofits and the people involved with it, so obviously there were complications early in terms of what we should do. And the counsel general in St. Petersburg then said, "Oh, we're going to have our first copyright, this is going to be our basic copyright Russian agreement." And then the counsel was gone and we never ever did that sort of thing. I think there's good work there, the composer died last year –
Ralph Sevush: Is this the short version? (laughter)
Audience Member #6: I was going to say you could stop me. Well, there are those original issues. Then, from what you said about wanting to get it going and get something done, the people that helped me put this together originally, in a way, there’s no signature, but they would be involved with producers if I ever got it done on my own. I want to know, can I go out and try to show this work to people?
Fred Bimbler: Is there a contract?
Audience Member #6: There is nothing.
Fred Bimbler: And you want to show what you wrote?
Audience Member #6: No, the whole thing. I got the joint copyright, I put both composers down on the copyright. I fully intend, if I ever know how to write to Russia-
Fred Bimbler: Again on the theory that it is in fact and would be held a joint copyright, which you just stated it as such, that doesn't mean it can't be challenged.
Audience Member #6: I don't want to get rid of their work, I want it as a piece.
Fred Bimbler: Right, but again, what I'm saying is on the theory that it is a joint copyright that would survive scrutiny of a court, you have the right to make non-exclusive dispositions out of the entire thing in the United States. The laws vary elsewhere. So you could go about trying to do that and then you'd have to account to the estate. I'm not sure that we actually touched on this, and I know that we're in the question section, but when I actually do a collaborator's agreement, I walk through, and I don't know if this meets Dramatists Guild standards, but I usually have various means of rejection and various means of withdrawal and what happens to the materials when somebody wants to withdraw or when the other two or the majority want to get rid of the person. Or if they die, which is really important.
David Faux: One thing that you did mention as well though, is that you wanted to give credit to the underlying author. There is an impulse among authors to give credit and to say thank you in some sort of permanent manner to their husband as conceiver or their wife as an additional ...
Ralph Sevush: Inspiration.
David Faux: Yeah, inspiration or even sometimes "additional lyrics by." Well, what did he or she do? "They helped me with morale and support and then they wrote these two lines." There does seem to be this impulse to take an opportunity to say thank you to everybody who ever influenced them at some time. I don't know if I'm just parsimonious, but maybe Fred or Ron can say something for or against that kind of giving credit or not. Good idea, bad idea?
Ron Gwiazda: You should give credit where credit is due. To a husband or wife or agent or lawyer or whatever.
(laughter)
Fred Bimbler: Again copyright accrues on the affixation of the expression. There's the concept of scribes of an expression. So there could be somebody who has written an entire song, music, and lyrics, in his or her head, and out loud, but doesn't actually have the ability to write it down. How complete that is and whether or not their secretary is actually writing it down for them, that's scribing. Having your husband or your wife or your spouse suggest a few lines to you to help you finish a song, I don't think that counts as you being a scribe for their copyrightable material being contributed because you made the choice as to whether or not that actually works within your song. Thank them for being a great support at home, but not for your lyrics.
Ralph Sevush: Any time you give anything that's even remotely similar to an authorial credit, you're creating signposts for litigation. It's harsh to think of it in those terms because you're trying to be grateful, but-
David Faux: Ralph, they did so much, you don't understand.
(laughter)
Audience Member #6: You answered my question beautifully, but now I'd like to ask a question about a book. A co-author collaboration on the book.
Ralph Sevush: Is the book of a musical or a novel?
Audience Member #6: This is a plain ordinary book about writing, which I also do. My collaborator after twenty years has decided he's withdrawing from the collaboration. We own the copyright, the publisher's happy to go on with it. Two questions. Number one, what might be the normal, at that point, some of his words so he can stay in the book for a while, what might be the normal -
Fred Bimbler: And this is opposed to the conclusion of your publishing agreement?
Audience Member #6: Yeah, and number two, what dangers am I running as I change -
Fred Bimbler: You need to make an agreement with him that through, at least, a couple of cycles if your publisher is going to continue to publish this book, that they can get extensions to do that. He'll continue to get his piece, but then as the publisher wants you to update this book, if he does not want to collaborate, then he has to agree that you have the right to change these things or to bring in third parties to help you change these things. Then you have to make a financial arrangement as his contributions diminish.
Audience Member #6: Any danger beyond, because that's what we've done, and we're doing a new edition –
Fred Bimbler: I mean there are new editions, so new copyrights are going to be accruing, right?
Audience Member #6: I don’t know.
Fred Bimbler: Well as you look inside the inside jacket or the inside page, it says copyright this year, this year, this year.
Audience Member #6: Oh, new years of copyrighting?
Fred Bimbler: It's not just the years, those are the editions. They're different editions as things change. Do you have a book agent? You're making derivative works and it's not fiction so I mean it's a little lighter than if it were fiction, but there's still a legitimate copyright in that type of book. Do you have a book agent?
Audience Member #6: No.
Fred Bimbler: You might want to talk to your publisher, too, if your publisher wants to continue to publish this book in multiple new editions to make sure that they're satisfied.
Ralph Sevush: But you can also try and contact the Authors Guild, which represents novelists and authors of books. They may have some specific advice on that.
Audience Member #6: I didn't realize the copyright is new every time you do a -
Fred Bimbler: It's a derivative; all of them are subordinate to the first. But if you're building as you go along, the next one is subordinate to the last and everything before it.
Ralph Sevush: I think we've taken enough of these folks' time. Thank you very much for corning.
(applause)
The complete text of this seminar is available to Guild members at www.dramatistsguild.com.