Working Together: A Compendium on Non-Authorial Collaboration

The case of Thomson v. Larson has been winding its way through the courts in recent months. Ms. Thomson, a dramaturg who worked with Jonathan Larson in the final months of the development of Rent, brought a claim against his estate saying, in a nutshell, that her contributions to Rent had created a situation in which she was no longer a dramaturg but rather had become a joint author with Mr. Larson. As a result of her claiming joint authorship, Ms. Thomson asked for, among other things, 16% of the income from the work. There was evidence that suggested that Jonathan was indeed appreciative of her contribution, and apparently the court found that her work demonstrated at least enough of a contribution to be copyrightable. Despite the fact that Ms. Thomson had made such contributions, the court refused to credit Ms. Thomson’s claim against the Larson estate, because it found that there had been no intent on the part of both Ms. Thomson and Jonathan to consider themselves co-authors. 

This was potentially an extremely important benchmark case for dramatists as well as dramaturgs, and in fact Literary Managers and Dramaturgs of the Americas put out press releases associating itself with the efforts of Ms. Thomson. It appeared to be, in their view, a “test case” by which dramaturgs could establish claims to royalties and subsidiary rights under certain circumstances. The entire case was of serious concern to your Guild, and after much discussion and weighing of issues we decided to present an amicus brief to the court in support of the rights of Jonathan Larson to be the sole author of his work. (An amicus brief is a statement to the court by an interested individual or organization that has credibility with the court and has a clear interest in the outcome of specific litigation.) It shouldn’t be necessary to say that we entered the fray without any desire to reflect on what may have been the real contributions of Ms. Thomson, but the principle here, that authorship cannot be given away (or taken away) without the clear intent of the author to do so, was critical for all of us. . . . 

Our brief pointed out to the court how singular and well-protected the fact of authorship is and drew for the court a picture of what would happen if claimants could appear at any point to try to establish that they were joint authors. We reminded the court that it was not a matter of Jonathan agreeing of his own volition to share his money with Ms. Thomson (although we saw no evidence that he had ever agreed to do so) but rather Ms. Thomson’s attempt to cast herself as a joint author that was so insidious and damaging to all authors and to the normal process of theatrical production. We pointed out that not only was there no intent on the part of Jonathan Larson to make Ms. Thomson a co-author (there was no collaboration agreement and no billing for Ms. Thomson as an author, and Jonathan kept control of the script and the artistic process throughout his work with Ms. Thomson) but that, under the law of joint authorship, a dramaturg or other claimant could not only demand up to 50% of the author’s monies but would also have the untrammeled right to make changes in the work, to cast the work, or even to license the work without consulting the author. Such a result would make production of the author’s work all but impossible. 

After hearing all the evidence, the court’s determination was to support the Larson estate as owners of the copyright and to deny Ms. Thomson’s claims. We believe that this is an extremely important and helpful outcome for dramatists, since Jonathan was confirmed as the sole author, despite the fact that the court recognized Ms. Thomson had made a tangible contribution to the work. We’re told that the court’s decision . . . reflected the court’s familiarity with our position, and the feeling of those involved in the case was that our brief on behalf of dramatists everywhere made a big and perhaps decisive difference to the outcome of the case. 

In the aftermath of the court’s decision in the Rent case, as described by the Guild’s executive director in the preceding section, the Guild further advised members as to how to protect the copyright in their work from non-authorial collaborators. The following article by Christopher Wilson and myself appeared in The Dramatists Guild Newsletter, September 1997 issue (vol. 22, no. I) and offered specific guidance to playwrights that is still quite relevant and valuable. 

Your play is an intensely personal manuscript reflecting your life and the people in it, and it expresses your singular view of the world. You have worked on it for many years — shaping it, molding it, and developing it. Producers are starting to take notice, sniffing around your staged readings, making promises. You just need to get over some last few hurdles to make the play into the venture that folks are looking for. 

Things begin to jell for you. Other people become involved with the project, such as, maybe, a director, a dramaturg, what have you. Maybe someone in the development process in which you find yourself suggests someone who might help you finish things up. Constructive suggestions are given and received, and your play acquires refinement and polish. It’s ready to take the next step. 

The play finally gets produced. It’s a “Big Hit.” Or maybe it’s just a modest hit but definitely developing interest. Producers, play publishers, agents take notice. Phones begin to ring. All is well with the world. 

Suddenly, those constructive suggestions come back to haunt you. You find yourself confronted by a previously cooperative “helper” now demanding payment that was never asked for before — or even claiming joint authorship status. Typically, true authors participate in all decisions about the life of a work — not just the receipt of money —although these decisions are regulated by the terms of a collaboration agreement. Under a “worst-case scenario,” if you have a co-author without a collaboration agreement in place, a court may decide that you are each “joint authors,” and your previously “helpful” collaborator may now be entitled to half of all your revenues as well as equal billing and an equal and separate right to license and control your play for the duration of your copyright, in which your collaborator asserts that he or she is now a co-owner. WHAT?! HOW?! Could this happen to you? 

Of course, theater is inherently collaborative, but the fact is that collaborators are no more co-authors than dramatists are co-directors or co-actors. If you call your collaborator a co-author and treat him or her as such, there is no question, but a court may well look at how you behaved to see what you thought. So, it is important to understand what might be important in distinguishing what you and your collaborator intended. 

First, take a deep breath, and then take stock of the situation. As demonstrated by a recent court decision, your collaborator is most likely to be successful in their claim only if he or she can show that both he or she contributed independently copyrightable material to the play and, of equal importance, during the period you worked together, you each manifested the specific intent to share co-authorship in the play and clearly expressed this shared understanding. What was the intent of the author and the other party at the time of their collaboration? Did they view each other as co-authors? 

More practically, how might you protect yourself so that, if this nightmare scenario ever unfolds for you, you can have some expectation of beating back a claim of this sort? First, any person claiming to be your co-author must first prove that he or she made copyrightable contributions to your play. It is not enough for someone to claim that they gave you dialogue, scenarios, or characters that you used in your play. The claimant must prove that the suggestions were independently copyrightable. 

The definition of “copyrightable” material is a complex issue. For our purposes here, suffice it to say that “ideas” are not copyrightable in and of themselves but only the particular expression of an idea, fixed in a tangible medium (such as specific lines of text or dialogue), can be the subject of copyright. Thus, an idea for a particular scene between two characters discussing a particular issue is not copyrightable, but the actual text and dialogue of the scene as written might be. 

Assuming, for argument’s sake, that the contributions made by a would-be collaborator are separately copyright-able, the claimant must still prove that it was the intent of both of you, at the time such contributions were made, to be collaborating as co-authors. So, how can an author demonstrate whether or not he or she intended their collaborator to be a co-author? 

If you want to establish co-authorship, the simplest, most direct method of doing so is through a written collaboration agreement. The Guild maintains a form that can be used by co-authors seeking to create an enforceable collaboration. It defines, among other things, the allocation of royalties, the decision-making processes, the creative controls, billing, and ownership interests among the co-authors. Thus defined, the collaborators can go forward with some degree of confidence regarding their various rights and interests in and to the play. 

We would always recommend that, when you intend to have a real co-author, you express your intent in a written agreement that will also help you and your co-authors establish a procedure for working together during the life of your play. Conversely, you should not sign an agreement with a collaborator whom you do not intend to be a co-author. 

In the absence of such a written agreement, a court may look at how you spoke about your collaboration to others or how you treated such a would-be collaborator with regard to the allocation of royalties and billing. Perhaps you so appreciated the contribution that you promised a reward in the form of royalties or otherwise. (Please note that the Guild does not recommend that you need to compensate collaborators in this fashion; remember, many people involved with the development process, including directors and dramaturgs, are already paid by the producers which hired them.) 

In addition, perhaps you started crediting him or her on various drafts of the script, with such billing joined to your own. If you choose to credit a collaborator in such a manner as would customarily be done with a co-author-for example, in terms of billing, such as “Name of Your Play” by You and John Dough, with a copyright notice saying copyright 19XX by You and John Dough, or if your collaborator signs your theater contract — you might be hard-pressed to assert that no co-authorship relationship exists. 

To demonstrate your intent that the collaborator was not the co-author even as you recognize a contribution, no billing should ever be permitted that suggests that a collaborator who is not an author has made authorial contributions, and you should never agree that you will require future productions to list such a collaborator. Any billing that you do agree to should be separate from yours and of significantly lesser prominence. Remember, you do not have to share ownership and authorship of your play to express gratitude to someone to whom you feel grateful. Similarly, the copyright notice should specify only your ownership, if such is the case. 

Then, consider the actual collaboration process, as a court might be likely to do. Retain absolute control over the draft of the script. If you are in sole control of the manuscript, with all deletions, omissions and amendments totally within your discretion, it will be clearer that you are the sole author. Take care about characterizations of your relationship via the delegation of rights that could reasonably be interpreted to express your intent or understanding that the two of you be considered co-authors with regard to the play. Do not delegate your control over artistic decisions at production meetings or when exercising creative control over casting, design elements, etc. 

Because you are the author, you should exercise both the privilege and the responsibility that are inherent in your authorial rights. Keep in mind that you will always be better off, if there is a problem down the road with someone asserting a claim against your work by virtue of the level of assistance provided, if there is a trail that demonstrates as clearly as possible your view of the relationship and, specifically, that you do not regard the claimant as a co-author. Take special care that any contracts or correspondence, especially between you and your collaborator, are clear in respect of your exclusive author status and ownership of copyright. Likewise, your actions, whether by according billing credit or otherwise, should be consistent with your view of the nature of the relationship. In this way, you can try to avoid a circumstance whereby a lack of clarity could force you to treat your play, your creation, as community property. 

As you can see from the previous excerpt, the Guild has been active in advising members regarding the issues of collaboration and authorial ownership, in light of the Rent decision. In subsequent issues of The Dramatist Guild Newsletter, we informed members about seminars conducted by the Guild all over the country on the subject of collaboration, copyright and authorial rights, including “What Every Dramatist Needs to Know About Collaboration” (October 6, 1997, in New, York), “Collaboration and Adaptation”(April 8,1998, in Boston), “Collaboration, Adaptations, and Publishing” (April 18, 1998, in Los Angels),and “The Rights of Dramatists: Are We Arranging Deck Chairs on the Titanic?” (April 20, 1998, in Los Angeles). In the December 1997 issue of The Dramatists Guild Newsletter (vol. 22, no. 3), Executive Director Richard Garmise continued to apprise and advise members as to the recent developments in the Rent case, including news of Thomson’s appeal and of the Guilds response in an appellate brief in support of the Larson estate’s position as sole author of Rent. 

More has happened in the Rent case that I wanted to share with you. As we anticipated, Lynn Thomson has appealed to the Second Circuit the ruling of the District Court, which was in favor of the estate of dramatist Jonathan Larson. . . . The Court found that, although Ms. Thomson made a major contribution to the show and apparently made some contribution of copyrightable material to the script, the sole author of the play was Mr. Larson, who had worked on it for over six years before Ms. Thomson was involved as a dramaturg. Ms. Thomson had asked the District Court for 16% of the income from Rent plus the rights of a joint author to license the work and make all decisions about it independently of the rights of the Larson estate. 

For some reason, there’s been a bit of misinformation about this case. Partially, it’s because excerpts of the judge’s opinion have been distributed in an attempt to bolster the dramaturg position, cutting out important facts from that opinion that support the Larson estate and dramatists in general. But in part I think there’s been confusion about what the case is really about, and it may be helpful to review for you some of the facts. 

In the first place, Ms. Thomson was not working for Mr. Larson during the period she served as a dramaturg for Rent; she signed a contract with the not-for-profit theater that was to present the play, and that theater agreed to pay her for her work. That information hasn’t gotten out much, but it’s important. So many of us work with dramaturgs and other collaborators through institutional theaters and commercial producers, and every writer has to be able to rely on the presumption that each of the collaborators with whom we are working expects to get all of their respective rights and compensation from the producer, unless there is an explicit agreement otherwise. 

During the months in which Ms. Thomson and Mr. Larson worked together, Mr. Larson never told anyone that he considered Ms. Thomson a co-author, and she never asked for, and he never offered, payment from him or any credit other than as dramaturg — ever. Even though Ms. Thomson testified at trial that she believed she was going beyond what her contract covered when she began to offer contributions of specific language to Mr. Larson, she never spoke either to the not-for-profit theater or to Mr. Larson to claim she was doing additional work and to assert she wanted additional rights or compensation. Experts from both sides, of course, testified that dramaturgs can and do suggest language as part of their job. In fact, when Ms. Thomson did decide she had a right to seek additional compensation, she first went to the commercial producers. She only went to the Larson estate after the commercial producers told her that they would not pay her for those contributions and that, if she wanted additional monies, she would have to get them from the estate. 

In her appeal, not only does Ms. Thomson challenge the judge’s decision that Mr. Larson was the sole author of Rent, but she has now raised much broader issues that, if upheld on appeal, could lead to the result that virtually anyone who had made a copyrightable contribution to a work could claim joint authorship of that work, even if they had only contributed a bare minimum amount of copyrightable material. Ms. Thomson claims in her appeal to be representing the position “of any collaborating artist who meets the definition of a co-author under current law, yet does not have a lawyer or a contract, has not been compensated for his or her copyrightable contributions, and is unable to prove that his or her collaborator intended for him or her to share in the rights in the work.” In other words, taking out the legalese, if Ms. Thomson wins on appeal, any collaborator who can claim to have made a copyrightable contribution to your work of any magnitude — in your current work or past work — may be able to claim to be your co-author, whether or not you intended them to be one and whether or not you ever realized that the contribution was copyrightable, unless you have made an alternate agreement with him or her. 

Since theater is inherently collaborative, you could be faced with claims not only from dramaturgs and others who had made specific, copyrightable suggestions to your work but even, potentially, from those with whom you might work in writers’ collectives or otherwise. The effect of this would be destructive not only for future working conditions, but also for past works. As John Lennon wrote, “Imagine.” 

The Guild and our outside counsel, Cahill, Gordon and Reindel, have once again put in a brief in support of the Larson position for the appeal, since we believe that the matter is one that, if adversely decided, would affect not only dramatists but all other participants in a collaborative effort. The issue is not about whether or not Mr. Larson broke a promise to Ms. Thomson, since she never asked for and he never made one, or about whether you or the neighbor next door thinks that Mr. Larson’s estate or anyone else, for that matter, should handle their professional relationships the same or differently. It’s about not being second guessed, and it’s about the dramatist being the dramatist and distinguishing that professional role from all the contributions, made with good intentions, by others. Think about what it would mean to you if, some time after your play was completed and produced, you got a “bill” from someone who claimed that you owed them something because they claim to have made a copyrightable contribution to your work. Think about sending out those “bills” yourself. We all make suggestions, good ones and copyrightable ones, with collaborators. Will dramatists now seek to share copyright with set designers and be “co-designers,” or actors with choreographers? Not only would the possibilities be endless, but the time spent totaling up what each suggested or thought he or she had suggested to their collaborators would be endless. Theater wouldn’t be about writing, acting, and directing, but about keeping score. Imagine. 

On July 14, 1997, The Dramatists Guild filed a brief as amicus curiae in support of the Larson estate. (As you may recall, an amicus brief is a statement to the court by an interested individual or organization that has credibility with the court and has a clear interest in the outcome of specific litigation.) After the court found for the defendant Larson, Thomson filed an appeal with the U.S. Court of Appeals for the Second Circuit. In response, as the executive director reported in the preceding except, the Guild filed a second amicus brief supporting the Larson estate on November 10,1997. While both briefs are fairly lengthy legal documents, we would like to present to you the following excerpt from the appellate brief focusing primarily on the fundamental policy issues that were at stake in this case. 

Appellant Lynn Thomson (“Thomson”) was hired by New York Theater Workshop (“NYTW”) to render “dramaturgical assistance” to Larson for the workshop production of Rent. At the time, Larson had been the author of Rent for more than six years. After working with Larson in her contractual capacity as dramaturg for several months, she sought to be recognized as a co-author based on her dramaturgical relationship with the author. Judge Kaplan determined after trial that there was no evidence that Larson ever intended to be a co-author with Thomson. Under this Court’s controlling decision in Childress v. Taylor; the finding by the court below that there was no evidence of clear co-authorship intent by Larson required rejection of Thomson’s claim. The Guild submits that Judge Kaplan’s decision was correct. Any contrary result would have far-reaching consequences for the process by which plays are developed and would jeopardize many of the collaborative relationships on which creativity in the theater depends. 

Childress Reflects Existing Theater Practice. In theater, as in every area of collaborative endeavor, suggestions and contributions are offered with the hope that they will be taken and accepted with the understanding that they may be used. Collaboration is intrinsic to theater, and all involved must be able to offer and accept such contributions freely. The author of the play — in the public’s understanding and as a professional matter — is the dramatist or playwright at whose initiative and with whose labor a text has been created. Until this case, we are not aware of any instance in which a non-dramatist collaborator has sought to be declared a playwright by operation of law, because he or she claimed to have contributed a non-de minimis amount of independently copyrightable material. If Thomson were to prevail here, the effect would be to cede to a collaborator broader rights than any author would normally cede to another author, because co-authorship permits each author to act without even consulting the other author. 

If the merger of two more-than-de minimis contributions were to be held to create joint authorship, the collaborative process necessary to the development of producible and successful plays would simply break down. Most theatrical works, like Rent, are the result of a gestation measurable in many years and involving the contributions of many people, from the development and refinement of the initial idea to the creation of scenes and dialogue and the structuring and placement of musical numbers. 

In a sense, anybody who contributes, whether in a small way or a more actively, is a collaborator. Indeed, some contributors may be attached to the project in a professional capacity, such as a director or dramaturg. But even when professionals join this creative process, the focus of the effort remains the author, who must ultimately decide which contributions to take, adjust the existing language to the new elements, and maintain the authorial perspective on the work. No author expects or intends, by engaging in this process, to place his or her ownership and control of his work at risk. As the Seventh Circuit has noted, “Those seeking copyrights would not seek further refinement that colleagues may offer, if they risk losing their sole authorship.” . . . 

In many cases, works are developed not at one theater but at several, and it is possible in each instance over a number of years that a number of collaborators, including more than one dramaturg, might be utilized. While Thomson claims credit for certain lines and other potentially copyrightable material, a finding of co-authorship will inevitably open the door to claims not only against the dominant author by other collaborators but against those subsidiary contributors by subsequent claimants. What assurance, under Thomson’s analysis, will any author or deemed co-author have that an earlier or later collaborator in the developmental process will not claim tripartite or quadripartite authorship? 

Abandonment of the Childress Rule Would Create Confusion in the Commercial Development of Playwrights’ Works. If this Circuit reverses the court below or retreats from Childress, each of the arguments used by Thomson to justify her failure to seek a contract with Larson — despite explicit advice from her longtime friend and collaborator, playwright Craig Lucas, that she do — as well as her claim that she retained the right to grant an explicit license to Larson before he could use any such copyrightable material, will be used to subject playwrights to claims for unforeseen “contributions” both by past and future collaborators (and their heirs), claiming that they had been deprived of the benefits of joint authorship. Because theater is so intimately collaborative, and because dramatists, secure in their authorship, frequently and publicly thank all who contribute to their success, such a result is hardly fanciful and, Thomson’s protestations notwithstanding, will create an insurmountable disincentive for all other putative contributors to reduce their claims in advance to an agreement. Because, as the facts of this case illustrate, all claims of co-authorship cannot be foreseen in advance, the intention of the playwright must remain as the index of authorship. As Robert Brustein, who teaches theater at Harvard and was the founder of the Yale Repertory Theater, testified: 

“A dramaturg, like a creative, forceful editor, is in a position to propose to an author lines, passages, and other ideas and suggestions, but, in the last analysis, the play belongs to the playwright, unless the playwright has clearly agreed to a different arrangement. Dramaturgs are an important part of the creative and collaborative process in the theater which I endorse, applaud, teach, and promote, but if they want to receive credit as playwrights, they must either have prior agreements or write a play themselves.” Because plays in particular commonly go through significant changes up to — and sometimes after — the official opening and because playwrights are not copyright attorneys, it would be virtually impossible to determine in advance all possible claims of co-authorship. 

Throughout Thomson’s brief, allusions are made to statements that Larson was not a “playwright” (implying that he was not a sufficiently good author of the story line or “book” of the musical) and that, by providing “structure” and copyrightable material, Thomson herself became a playwright. This ignores the finding by Judge Kaplan that “Jonathan Larson was the dominant creator of Rent” and that “the overwhelming share of the credit for the success and acclaim that Rent has won belongs to Jonathan Larson and that the show is a tribute to his talent and his perseverance.” It is nonsense to assert that Thomson should be deemed a co-author because the lines of the play that originated with her were, as Judge Kaplan found, “certainly not zero” but not the 9% that Thomson has claimed. 

Those contributions cannot be said to make Thomson a “playwright” any more than can the contributions of the client who works closely with a designer to revise his house’s floor plans is said to be an architect. Adding together one or a number of merely more-than-de minimis contributions in a work of more than 2,500 lines cannot create a joint authorship merely because the more-than-de minimis contributions were merged with the existing text. 

Had the critical reception for Rent been less than overwhelming — as is more frequently the case in theater —Larson, had he survived, would have had to be free to modify the work, change dramaturgs, or add a co-dramatist. Under Thomson’s theory, however, once the more-than-de minimis contribution of hers had “merged” with Larson’s, Larson would have been unable to make such changes without the prospect that Thomson, or any other statutory joint author, would have had the right to countermand his decisions or separately license without further changes. 

In the current commercial market, only the grant of exclusive rights to a producer is of any commercial value; no producer can obtain investors or otherwise pay for a right that can be licensed simultaneously to a competing producer or for a competing license in a different venue or medium. Moreover, virtually all agreements between authors and producers contain a representation that the author has the sole right to dispose of the property as set forth in the contract and is aware of no possible competing or adverse claims. 

To allow putative collaborators to assert belated claims of co-authorship, only after a play is produced to critical acclaim and the author (or here the author’s estate) and the collaborator could not agree on the amount of a voluntary payment to the collaborator, would only result in more cases like this one. Joint authorship was not intended by Congress to be, and cannot be made to serve as, a means of allocating proportional risks in theatrical works absent any contractual agreement, although Thomson suggests as much in her brief. If such contributions, which are currently freely made and innocently accepted, must in each instance hereafter be accounted for after the fact, the incentive to create copyrightable material will be stifled. As Thomson’s testimony at the trial demonstrated, in the complex interactions which characterize theatrical production, it may be virtually impossible to recall or determine at the moment of creation who contributed what specific element to a larger copyrightable work; even if all the parties agree at the moment of creation as to the respective contributions, there is no guarantee that, thereafter, their recollections will not change. 

Thomson claims that it is solely the circumstance of Larson’s untimely demise that has brought the matter to litigation. To the contrary, under Thomson’s theory, even if Larson had survived, she would have a claim based on her “contribution” of independently copyrightable material, and, under her reading of Childress she would be entitled to co-authorship as a matter of law. Such a result would stand Childress on its head and create a presumption that any collaborator able to show a non-de minimis contribution was a co-author. The courts would be invited to do what the Childress Court rejected — impose ad hoc collaboration agreements on parties who did not voluntarily enter into such agreements and who did not share mutual co-authorship intent. Under Thomson’s theory, a work might easily be found to have numerous “authors,” and it would be up to the federal courts to allocate royalties and other rights among them. 

Thomson raises the chimera that the result below, and therefore this Circuit’s analysis in Childress, creates a “black hole” in the copyright laws that will permit Thomson to block all future use of the portions of Rent she contributed. The argument is simply wrong as a matter of law. No such hole exists, because Thomson does not have the rights she postulates. 

There is no “black hole,” because Childress establishes that, unless a contributor is found to be a co-author, the dominant author, the playwright, remains the sole author of the work. Neither Childress nor any of the cases that follow it restricts the sole author from fully exercising all of his or her rights in the work as a whole, even when the work incorporates contributions by a non-authorial contributor. 

There is also no “black hole,” because even if, despite Childress, the sole author is not the copyright owner of materials contributed by others, the sole author has an implied license to use those materials, and any use of those materials by the sole author cannot constitute infringement. By voluntarily offering material to the sole author without conditions, the collaborator cannot later assert infringement against a sole author who incorporates that material in his or her work. 

Here, Thomson never restricted Larson’s use of any of the “contributions” that she claims to have made to Rent. She never sought to limit the reproduction and performance of the work with her contributions. Her dramaturgical relationship to the work created an implied license for Larson to use what she created as dramaturg. There is no requirement that a non-exclusive copyright license be in writing. Given the collaborative nature of theater, any “contribution” of copyrightable material should be understood as conveying with it to the playwright a non-exclusive license to use the collaborator’s material in the work, absent some other arrangement in writing. 

Crediting Thomson’s claim that explicit licensees are required in such collaborations will place all editors, agents, and other collaborators (including those who work together in writers’ collectives and critique each other’s work)in precisely the situation that Thomson asserts is uniquely hers. Many editors are not employees but often work as independent contractors to create structure and text. Similarly, literary agents often make similar contributions and, while paid a percentage of the author’s income, typically do not have in their agreements any transfer of their copyright to the author. Thomson no more started with a blank page than does any editor of an unwieldy text, and, notwithstanding the differences that may exist among different types of collaborators, it is the author’s initial vision and the creative work of molding and shaping material through countless drafts before any other individual is involved which distinguishes an author’s work from that of an editor or dramaturg or other non-authorial assistant. 

The Second Circuit Court of Appeals finally announced its decision in the Rent case on June 19, 1998, over seven months after the Guild had submitted the amicus brief excerpted above. In the first issue of the Guild’s new publication, The Dramatist (September/October 1998), Acting Executive Director Christopher Wilson reported in the Newsletter section on the results of Thomson’s appeal. The following excerpt describes the dispute and explores the ramifications for dramatists of the appellate decision. 

We have further developments on the Rent litigation to share with you. As we reported in the December Newsletter; Lynn Thomson appealed to the Second Circuit the ruling in the District Court, which was in favor of the estate of dramatist Jonathan Larson. As we had reported, the Guild and our outside counsel, Cahill Gordon & Reindel, put in a brief in support of the Larson position because of our concern that the arguments raised by Ms. Thomson, if adopted by the court, would have the affect of allowing any collaborator who claims to have made a copyrightable contribution to your work of any magnitude to be able to make a claim to be your co-author, whether or not you intended them to be one and whether or not you ever realized that the contribution was copyrightable, unless you have made an alternate agreement with him or her. Argument on the appeal was held in late March before the Second Circuit and, in a decision released on June 19, 1998, the Second Circuit upheld the District Court’s ruling in favor of Larson’s estate. The District Court had determined that it must make a finding that it was the mutual intent of the parties to be co-authors in order for Ms. Thomson to succeed in her claim of co-authorship and that Jonathan Larson lacked the requisite intent to accept Ms. Thomson as a co-author of Rent. The Second Circuit did not address the issue, raised for the first time in the appeal, about what happens to a copyrightable contribution made by someone who is not a co-author (and who does not have an agreement regarding the contribution), because the issue had not been determined by the court below. In essence, Ms. Thomson asserted that, if she did not own a share in all of Rent, she owned the specific lines that she wrote, which could not be used without her permission. 

As I write this, it is uncertain whether there will be another act in this long-running show. It is not known whether Ms. Thomson will appeal. Ms. Thomson has apparently commenced litigation against the Larson estate seeking the removal of those specific bits from Rent that she claims to own. Although the courts have been clear that she is not a co-author of Rent, she continues to claim that she exclusively owns the material that she wrote. 

So, what does all this mean for you? First, it is a resounding victory for the principle that authors control their work and who their co-authors are. As the Guild has argued from the outset, no one who has merely made some contribution to your work is automatically entitled to claim co-authorship. There must be, as the Second Circuit ruled, some sort of intent on the part of both you and your collaborator that you are co-authors and that you both control the work. 

The decision is a victory for the primacy of authors with respect to their contributors. Second, to ensure your primacy, it is important that you leave a trail about how you view your collaborators. If you intend co-authorship, sign a collaboration agreement. If not, keep control of your script. Be careful about delegating artistic decisions. Be fussy about billing and copyright notices. Make sure that your contracts with your producers (or with any contributors if you happen to be party to a contract with them) provide that you own any changes to your work of which you approve. In short, it seems that your lives may have become a little easier as well, because the Second Circuit has reaffirmed the legal basis for your control of your work. 

After the decision of the Appellate Court, Thomson negotiated a settlement with the Larson estate in August1998, nearly two years after she had commenced her original suit. While the terms of the settlement have not been disclosed by the parties, Acting Executive Director Christopher Wilson reported to members in the Newsletter section of the next issue of The Dramatist (November/December 1998) on the settlement and its meaning for those who write for the theater. 

The Rent litigation has apparently been settled, so that we do not anticipate, at present, another round of litigation. From what I can tell, the settlement means that there will not be litigation about the question whether Lynn Thomson owns and has a right to dispose of those specific bits of Rent that she asserted she wrote. 

However, as the settlement follows after (and I, at least, would assume stems in part from) the favorable Second Circuit ruling in the earlier round of litigation to the effect that co-authorship does indeed require some sort of mutual intent by collaborators to be co-authors, the useful legal impact of that decision remains and can serve as precedent.(As you might recall, the Second Circuit upheld the ruling of the District Court finding that Ms. Thomson was not a co-author; neither court issued a ruling concerning who might own those specific lines that Ms. Thomson claims she wrote.) In short, as the Guild has argued from the outset, the decision continues to support the principle that no one who has merely made some contribution to your work is automatically entitled to claim co-authorship. It is clear that some sort of mutual intent regarding co-authorship is required and thus the decision stands, and continues to stand, even after the settlement, as a victory for the primacy of authors with respect to their collaborators. 

While the preceding excerpt speaks to the final settlement of the Rent care, the Guild’s position on non-authorial collaboration is not limited to the field of dramaturgy and its practitioners. Before the Rent dispute ever began, the Guild was reporting on the stated position of the Society for Stage Directors and Choreographers, speaking to and on behalf of its members, regarding copyright ownership of stage directions. The following excerpt is from Executive Director Richard Garmise in the February 1997 issue of the Newsletter (vol. 21, no. 5). 

Some of you have undoubtedly been following more or less closely the litigation between individual directors seeking to enforce copyright in their stage directions and authors and theaters resisting their efforts. In a nutshell, the Society of Stage Directors and Choreographers has apparently taken the position that it will provide legal support in certain cases to directors who claim that a production of a play or musical “infringes” on the rights of that director by reproducing what that director claims to be “significant” elements of his/her earlier direction. Although there is ample material in the legislative history and an increasing chorus of scholarly comment refuting the SSD&C position, our good friends at SSD&C are still persisting in the errors of their ways. . . . 

Historically, no one is more sensitive to the importance of copyright ownership than dramatic authors. The defense of your material is the most important legal and moral right that you have, and it is critical that authors not trade this right away for some pottage. Day by day, we are aware of claims by directors and others that the Guild “sanctions” copyright and other intellectual property rights of a director that impact on your script and productions, but, to repeat what’s been said before, this isn’t the case. When you are approached by a director or other professional who claims that you have the obligation to share copyright with them, or that the Guild has sanctioned this, contact us. We’ll be happy to set you straight. 

The article was not the last of the Guild’s statements on this issue. The Council of The Dramatists Guild adopted the following statement on February 9, 1998. It outlines the Guild’s policy regarding the recent efforts by directors to obtain copyright registration in their stage directions by submitting to the Copyright Office annotated copies of scripts written by Guild members. 

It is the artistic heritage of the playwright and a longstanding principle of The Dramatists Guild that the dramatist owns and controls the intellectual property, including the copyright, of the author’s script and of all changes of any kind whatsoever in the manuscript, title, stage business, or performance of the play. 

The Council of the Guild has become aware that directors, dramaturgs, and other theatrical collaborators have from time to time claimed copyright and other ownership interests in any such changes or contributions for which they claim to be responsible. They have attempted to establish their claims, among other means, by videotaping performances or filing with the Copyright Office the dramatist’s script with changes, notations, and other additions claimed by these collaborators. Such claims and actions infringe on the rights of dramatists to own and control their plays and may inhibit the opportunities of other professionals, and audiences, to participate in the recreation and enjoyment of the play. 

Therefore, in furtherance of the artistic and legal rights supported by the Guild for its members, the Council of the Guild for and on behalf of its membership restates that no Dramatists Guild member should allow his or her script, or any taped performance of his or her script, to be used to establish or promote ownership or control by any theatrical collaborator over any claimed changes or contributions. The Council recognizes that the Guild or individual authors may be required from time to time to take actions to support the rights of dramatists to their legal rights and of the public to the unencumbered dissemination of the play, and the Council of the Guild commits itself to authorizing and supporting those actions necessary to defend and promote the rights of its members and of the public. 

The Guild Newsletter had spoken previously about the relationship between authors and directors In two articles, “Directors. at the Gates” (1993) and “Directors at the Gates” (1995) we not only discussed the effort of directors to claim an ownership interest in an author’s play and the subsidiary rights revenue that flows from it but the whole one-sided nature of “directors agreements” in general. Reprints of these article may be purchased by Guild members through the Newsletter order form. 

As you can see, The Dramatists Guild has been zealous and consistent in its defense of authorial control and ownership of the plays and musicals authored by those who write for the theater. We have written articles that have kept you apprised of important cases and public matters. We have advised you through business affairs articles and seminars, by phone and fax, and in person as to the nature of your authorial prerogatives. We have intervened and advocated on your behalf where we felt our contribution could be effective and consistent with Guild policy. 

To summarize the common thread through all the previous material, be advised that the courts have upheld your sole authorship in the absence of both a copyrightable contribution by a collaborator and of the mutual intent to be co-authors at the time of the collaboration. Therefore, it would seem wise to enter into collaboration agreements only with those whom you consider to be your co-author. While the courts have not ruled definitively on what happens to non-de minimis copyrightable contributions made by non-authorial collaborators, the industry practice reflected in the clear, unambiguous language contained in all Guild contracts requires producers to make no changes without authorial approval and, further, that any such approved changes become the author’s sole property without any lien or encumbrance. If your contract has this language, it will be incumbent on producers to ensure that their agreements with employees, whether dramaturgs or directors or anyone else, are consistent with their obligations to the author. 

Please understand that nothing contained in these materials should be taken to demean the contributions of dramaturgs, directors, choreographers, designers, actors, producers, theater owners, or stagehands with whom you may be working. Collaboration is essential to the creation of theater and respect for highly valued colleagues is not inconsistent with either your firm maintenance of authorial control or your sharing of such control with a co-author, depending on the nature of a particular work and the specific circumstances of its creation. 

Instead of an adversarial posture, what we hope you take away from this compendium is a feeling of pride in your Guild, that we have acted consistently and effectively on your behalf. We also hope that it helps you to value your own worth as writers who face the “blank page” in a way that none of your non-authorial collaborators must. Having provided you with the tools to understand the difference between a collaborator and a co-author, we hope that you will then be empowered to fight for your own work. For, in the end, if you will not . . . who will?