Ralph Sevush: Just to give you an idea, we see, at any one time, maybe 200 contracts going on in various places. So, we know a lot of what people’s deals are.
Once they establish a precedent, they don’t like to move up, and I get that. The point is that the authors, individually, have to be strong enough to say, “You know what? This isn’t right.” And you have to be able to look at it and step back and say, “The Guild doesn’t recommend I do this. I will not do this.”
David Faux: “I’m a writer; it’s my first production ever. I really want to get produced.”
Bruce Ostler: That’s the hardest part. That’s the hardest part.
Ralph Sevush: It’s the hardest thing when you have this opportunity. But you own that copyright. You participate in that. That’s your play. You own it. Don’t give it up. Ever. People generally respect that, but not always.
David Faux: People will want to know when to compromise; when not to compromise.
Bruce Ostler: I can tell you how I lead a client to that decision. I ask them: is this an important production to you? Well, if it’s your first production, yes, it usually is. All right. Well, is this an equal relationship? And you have to start looking at that. If they don’t treat you well in a negotiation, then they don’t respect your rights, and they may not be the people to be in bed with.
But if you get by that, then you do. Some of it is just rationalizing it away. If you can involve them in a conversation regarding what value they will add, you can get them down to a smaller number sometimes, you know.
It’s a battle we fight every day. Every author is involved in that to a degree. And it’s important that we all know that.
Audience Member: I wanted to ask Stephen— you made reference to the fact that maybe we’re not engaging Congress the way we have in the past. But we’re always percolating new ways of approaching the same problems. Where do you see the sub rights evolving as we go forward?
Stephen Schwartz: My hope is that the improvement that we are starting to get from theatres such as the Public and such as the Roundabout will become contagious. And what’s wonderful is if you have the Public Theater with this policy, and you have, for example, Manhattan Theatre Club—which is still taking 40 percent—and an author has a play and a choice between the two, guess which one they’re going to choose.
Audience Member: Did you approach Manhattan Theatre Club?
Stephen Schwartz: We will be having a conversation with Manhattan Theatre Club.
Ralph Sevush: We’ve had some conversations. We will have others.
Stephen Schwartz: With what has happened with the Public and the Roundabout, on top of what’s happened with Lincoln Center and the Center Theatre, this is a major help to us.
David Faux: So when a small production does want subsidiary rights participation, it’s reasonable to say theatres that are adding value at the level of the Roundabout and the Public don’t take sub rights.
Stephen Schwartz: Yes, because we’re not a union, and because we can’t do a blanket proclamation, we are fighting this one theatre at a time. But we have started to win some of these very important battles.
Ralph Sevush: We’re looking for a trickle. See, what happens in New York trickles down to all the regional theatres. If we can simply change the nature of the conversation; change the assumptions. And if it becomes assumed that you don’t give it up to a non-profit, which is already benefiting as a result of its production, then you can make an argument for why you should get it, rather than the authors having to make an argument for why you shouldn’t pay it.
Stephen Schwartz: The amazing thing is it’s only been recently that this has been changing, primarily because of the Guild. People are willing to say no. The problem with Manhattan Theatre Club is they have made money on subsidiary rights over the years. So that’s going to be a hard one to win over.
Ralph Sevush: Well, they’ve made money on subsidiary rights. I feel the windfall model is a model that should be applied to Manhattan Theatre Club.
Audience Member: I came here as a playwright to learn and to gain in my profession. This sounds like a wake for playwrights.
Stephen Schwartz: I’m saying this not just for the people in this room, but the people who will read this later: the more this issue can be brought to light, and the more writers band together and say, “This is unfair,” the more we can change minds and change an attitude. This is not a wake by any means because we have actually made some progress. But it is definitely a battle, an ongoing battle. It’s one of those “two steps forward, one step back” cases.
Ralph Sevush: It’s a battle we’re fighting with one arm tied behind our back, legally speaking. So, we’re stuck with a case that was decided 60 years ago that said we’re not labor. And that’s the environment we live in.
But the nature of labor is evolving; what it means to be a worker is evolving. Telecommuting, electronic media, and other factors have changed what labor is. The idea that we will be stuck in this situation forever is not necessarily the case.
Audience Member: I wanted to know whether you had spoken to Sharon Fallen at NYMF. I was curious.
Ralph Sevush: Yes.
Stephen Schwartz: We spoke to them on the phone. We drew their attention to our concerns. Let’s just say there were a bunch of issues related to their contract that we were upset about. They were willing to talk about some of them, but less willing to talk about others. They were going to consult with their attorneys and get back to us, when we last left it. That was a few days ago. Ralph has been very effective at dealing with these organizations.
Audience Member: I had a quick question. I know there’s a pattern now of commercial producers enhancing non-profit productions where they share the risk. In those cases, is there any kind of standard procedure or precedent where they share, rather than taking more than 40 percent? Is the eventual commercial potential for subsidiary rights given up? Do they ever share with those who they’re enhancing?
Ralph Sevush: From a commercial producer’s point of view, they’re going to put in big enhancement money, maybe half a million to a million dollars. They will essentially ask to get what the theatre’s participation would be. The theatre will very happily give it up for that amount of money. It’s generally a big chunk of change.
It’s the negotiations that get really crazy and out of whack: the theatre is demanding, “No, I’m not going to give that up,” and the commercial producer is insisting they get their part as well. I always liken it to luggage. You’re just starting to drag around a lot of baggage from all these different things. But enhancement money is a big part of both regional and commercial theatre.
Stephen Schwartz: When you started a musical out of town that you eventually wanted to bring to Broadway, when you went out of town to Boston or Philadelphia or wherever, you lost money there.
You were already in the hole millions of dollars before you even started previews in New York. Producers understandably became increasingly reluctant to take on that risk.
So non-profits and LORT theatres said, “Well, we can certainly sell a new musical to our audience, and we’ll get a million extra dollars to do it.” And everybody’s a winner. The producer gets an out of town try out for a lot less than they would have spent otherwise; the theatre gets a new musical for their audience, and that’s what comes into New York.
The problem isn’t really who gets the five percent. There are many ways that can work. The concept here is that it shouldn’t create an additional sub rights obligation.
Audience Member: Over the years, I have had a lot of involvement in the regional theatre scene. I have seen dozens and dozens of super-wonderful scripts that get done at theatres all over. But these things never get done here. My question is, is there a relationship between the issue that we’re discussing tonight and the fact that New York audiences never get a chance to see these really remarkable scripts? The obligations that get attached to shows out of town, from various levels of production, can—and I’ve seen it— result in a show that is so encumbered, that no commercial producer is interested in it.
Stephen Schwartz: And that’s why this needs to be resisted beyond a certain point.
Audience Member: If you, hypothetically, had five or six people that have all taken 40 percent, and they end up with 51 percent or more, do they control the copyright?
Ralph Sevush: No, they don’t control it.
Stephen Schwartz: This is not an ownership interest in your work. You own 100 percent of the copyright.
Ralph Sevush: And don’t ever give that up.
Stephen Schwartz: You can assign a percentage of your earnings to anybody. You can give ten percent to your cat if you want to. It doesn’t matter who you give those revenue streams to, you still own 100 percent of the copyright.
Audience Member: How does a writer who may only have a couple of shows in his lifetime protect himself from a director or lawyer who says, “I want this much.” What do you do, and how do you do it?
Stephen Schwartz: Thank you for raising this issue. This is an ongoing conversation that we are having. There is considerable disagreement within the Council of the Dramatists Guild itself as to whether it is ever appropriate to give a director a percent of subsidiary rights. And if it is, under what circumstances?
We are attempting to arrive at a consensus, which will then go into discussions with the SDC. I’ve been in touch with Karen Azenberg, who is my counterpart at the SDC, frequently. We are, for the first time, trying to have a rational discussion about this, as opposed to being argumentative. But it is a very complicated and thorny issue.
Audience Member: I’m here tonight representing the bottom of the food chain. I write original musicals for a 501(c)(3) theatre on Staten Island. They have some production history, but they’ve never launched anything, Broadway or off-Broadway. We’re in the process of negotiating the contract.
They haven’t submitted it yet, but there have been some intimations that they are going to look for subsidiary rights for a production opening in Staten Island--with maybe four performances in Manhattan--that would be under an Equity showcase contract. Do you have any thoughts on this sort of arrangement?
Ralph Sevush: Well, first of all, we have four model contracts specifically for New York, including showcase contracts. They have optional provisions in the back regarding sub rights and future production rights. You can elect to include it in the contract or not include it in the contract. Those contracts recommend, in those situations, three percent for two years. So you’re giving them a little taste if something happens right away.
Proximity of time is really important, because then at least there’s some argument that their production was of such value that it added immediate value to your work, and that led it towards something else of value. Again, we make that an optional provision at the back of the contract that you can simply take off, because even that is not appropriate in all circumstances.
This is an Equity contract, so you have that going for it. Is it running at least sixteen performances? Are you being paid a royalty? Are you waiving your royalty? There are other considerations to think about.
Certainly, the reputation or experience of the company is one of those factors. It may not be the worst idea in the world to give that percentage. That’s up to you. We do know that this happens. The fact that Lincoln Center can afford to give it up is not quite the same as saying a 501(c)(3) in Staten Island, which is just trying to get off the ground, can afford to give that up.
Stephen Schwartz: I do want to point out one thing here, which I think is very important, conceptually. There is a big difference with three percent for two years and three percent forever, or even fifteen years or 40 years. There’s a logic behind these choices.
If the theatre you’re dealing with asks for something which seems inappropriate to you, I encourage you to call David or call Ralph. They’ll tell you the sorts of things that some writers might agree to under certain circumstances. Then you have the option of deciding whether it makes sense in your particular case.
Bruce Ostler: The sample agreements the Dramatists Guild have are actually quite good. They’re simple and they’re clear. You don’t need a lawyer to decipher them.
Ralph Sevush: Sometimes in the initial production concept, a preferable model is if that showcase production moves to a commercial run, you give them a little gross royalty, because that means that their little production was of such value that a commercial producer came in and took that cast, or that director, and moved it to a commercial run. They’ve created something of value which, you could argue, means they might be entitled to those royalties.
Audience Member: How do various agents see this issue of subsidiary rights?
Bruce Ostler: I can’t speak for all agents. The general attitude is to support the artist. We’re acting in the interest of the artist, and it’s not in the interest of the artist to give up these sub rights.
I would say most agents fight this fight every day. And it is an everyday fight.
Audience Member: What confuses me is the royalties coming from the producer’s share vis-à-vis the subsidiary right. If the author has to give up some of his subsidiary rights, and the producer and the commercial producer have to give up some of their points, how much does it really add up to? Well, they don’t get both. When a LORT theatre that produces a show, and their production gets moved to a commercial run, they’ll get a percentage of the gross plus five percent of the producer’s net profits. But they don’t get both.
Ralph Sevush: My problem with the whole director situation is that directors are in unions. They get a fee, and they get royalties for doing their job. Their job includes dramaturgical advice to the playwrights to make the play more stage appropriate, because their expertise is turning a written work into a live performance.
They’re essentially translators in that sense. They’re interpreting it. They’re interpretive artists; that’s what they do. They are supposed to have ideas. The author shouldn’t have to pay them for their ideas. So right now, off-Broadway, the contract with the directors and the producers provides the director with a percentage of the producer’s subsidiary rights.
On Broadway, the League has resisted giving that to the SDC. So, the league turns around and says, “Well, we have to get it from somebody. You, author, you look good. Give me a piece.” (laughter) We’re the only ones that own anything and we don’t have the union to protect it. So, we’re vulnerable in that situation.
My essential issue is that the director is creating a value for the producer, and the producer is getting 40 percent from the author for 20 years for having done that, but he isn’t giving any of it to the director, who helped create that value. So the director is then turning to the author for it.
Audience Member: I understand the concept of value added. We’re talking about a New York production. But it’s been my experience, in regional theatres, that they might do a fabulous first job, but it won’t necessarily go anywhere. Is it different when a regional theatre does a one-shot or a one-off?
Stephen Schwartz: Well, they’re all one-offs. That’s why it’s five percent for five years instead of 40 percent for 20 years. Think of a rock getting thrown into a pond. The bigger the rock, the more ripples there are and the longer they ripple out.
A Broadway rock is the biggest rock you can drop in the pond. A regional production in Iowa is a pretty small rock, theatrically speaking. Certain publishers, for example, won’t publish a play that hasn’t been produced in New York. So, it’s not just New York parochialism, or snobbery. It has real business impact.
Ralph Sevush: Foreign territories may not license the play, unless it’s played in New York.
David Faux: Ralph, I think what’s being asked is, in the instance of a regional production, is that of sufficient value to warrant subsidiary rights participation at all? And if it is, what do we feel at the Guild is the value of it?
Ralph Sevush: In the ‘80s, when this started happening, Council got very involved in a movement, the LORT Initiative, to regulate and standardize what LORT theatres could ask for in this area. That’s where the five percent for five years came from. It came out of Wendy Wasserstein withholding the rights to The Heidi Chronicles. It came from Marsha Norman. It came from a lot of people saying, “No, theatre, you cannot have the rights to my play unless you agree to give a fair deal to any other Guild member who has a premiere on your main stage.” And so whether it’s Denver or Iowa or any other city around the country, the five percent for five-year model evolved as long as it was a LORT theatre. This means it’s already a reputable regional theatre, with a professional cast and company.
Audience Member: On the director issue: three years ago, I got in that position where a director, a day before I was supposed to go on, said, “You have to sign this piece of paper that gives me rights.” I said no. I called the SDC. They said they absolutely could not change that piece of paper, that agreement. Is that still the case?
Ralph Sevush: Were you self-producing that?
Audience Member: Yes.
Ralph Sevush: They were talking to you as a producer.
Audience Member: But I was also the writer.
Ralph Sevush: That’s the danger of self-producing. When you self-produce, you create a production entity that will contract with directors, choreographers, actors, et cetera. Then the obligations are only from the entity, not from you as an author.
The entity doesn’t own your play and won’t control your play. You’re probably not going to use that entity for anything other than self-production.
Audience Member: So, the SDC was telling me the truth.
Ralph Sevush: They were telling you the truth as a producer, but not as an author.
David Faux: If your question wasn’t answered tonight, please take my card, please call me and I’ll give you the best answer I can. If it’s specific to Stephen or Bruce or Ralph, I’ll try to get you the answer that only they have the information to.
Let’s thank our panelists very much. (applause)