147 F.3d 195 (2nd Cir. 1998), 97-9085, Thomson v. Larson

Docket Nº:Docket No. 97-9085.
Citation:147 F.3d 195
Party Name:47 U.S.P.Q.2d 1065 Lynn M. THOMSON, Plaintiff-Appellant, v. Allan S. LARSON, Nanette Larson, and Julie Larson McCollum, Defendants-Appellees.
Case Date:June 19, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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147 F.3d 195 (2nd Cir. 1998)

47 U.S.P.Q.2d 1065

Lynn M. THOMSON, Plaintiff-Appellant,

v.

Allan S. LARSON, Nanette Larson, and Julie Larson McCollum,

Defendants-Appellees.

Docket No. 97-9085.

United States Court of Appeals, Second Circuit

June 19, 1998

Argued March 26, 1998.

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Russell Alexander Smith, Law Offices of Russell Alexander Smith, P.C., New York City, for Plaintiff-Appellant.

L. Peter Parcher, Parcher, Hayes & Liebman, New York City (Orin S. Snyder, Amy R. Gutman, of counsel), for Defendants-Appellees.

Nancy E. Wolff, Cavallo & Wolff, New York City (Jordan Rossen, Peggy Marks, of counsel), for Amici Curiae, The National Writers Union and Literary Managers and Dramaturgs of the Americas, Inc., in support of Plaintiff-Appellant.

Laurence T. Sorkin, Kevin J. Burke, Cahill Gordon & Reindel, New York City (Richard Garmise, Christopher C. Wilson, Ralph Sevush, The Dramatists Guild, Inc., New York City, of counsel), for Amicus Curiae, The Dramatists Guild, Inc., in support of Defendants-Appellees.

Before FEINBERG, CALABRESI, and BRIGHT, [*] Circuit Judges.

CALABRESI, Circuit Judge:

Plaintiff-appellant Lynn Thomson claims that, along with principal playwright Jonathan Larson, 1 she co-authored a "new version" of the critically acclaimed Broadway musical Rent. Since Thomson and Larson did not specify their respective rights by contract, this case raises two issues: (1) whether Rent qualifies as a statutory "joint work," co-authored by Thomson; and (2) whether, even if Thomson is not deemed a co-author, she automatically retains exclusive copyright interests in the material she contributed to the work. The first question is squarely answered by the nuanced co-authorship test announced in Childress v. Taylor, 945 F.2d 500 (2d Cir.1991), and, on that basis, we affirm the district court's conclusion that Thomson is not a co-author of Rent. The second question--ownership of a copyright (in the absence of any written contract) in a "non-co-author's" contribution to a work--was not addressed in Childress. Because Thomson did not plead infringement of any such putative copyright interest, however, this issue is not properly before us, and so we do not decide it.

BACKGROUND

The facts given below and found by the district court are essentially uncontested.

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Rent, the Pulitzer Prize and Tony Award-winning Broadway modern musical based on Puccini's opera La Boheme, began in 1989 as the joint project of Billy Aronson and composer Jonathan Larson. Aronson and Larson collaborated on the work until their amicable separation in 1991. 2 At that time, Larson obtained Aronson's permission to develop the play on his own. By written agreement, Larson promised that the title would always be "RENT a rock opera by Jonathan Larson. Original concept and additional lyrics by Billy Aronson." In return, Aronson agreed that he would "not ... be considered [an] active collaborator or co-author of RENT." 3

In the summer of 1992, Larson's Rent script was favorably received by James Nicola, Artistic Director of the New York Theatre Workshop ("NYTW"), a non-profit theater company in the East Village. Larson continued to develop and revise the "workshop version" of his Rent script. In the spring of 1993, Nicola urged Larson to allow the NYTW to hire a playwright or a bookwriter to help revamp the storyline and narrative structure of the play. But Larson "absolutely, vehemently and totally rejected [Nicola's] suggestion of hiring a bookwriter" and "was insistent on making RENT entirely his own project." Larson received a grant in the spring of 1994 to pay for a workshop production of Rent, which was presented to the public in the fall of 1994 in a series of ten staged performances produced by the NYTW and directed by Michael Greif. 4 "[T]he professional consensus concerning the show, after the studio production, was that it was, at a minimum, very promising and that it needed a great deal of work." Artistic Director Nicola once again suggested to Larson that he consider working with a bookwriter, which Larson "adamantly and steadfastly refused, consistently emphasizing his intention to be the only author of RENT."

In May 1995, in preparation for Rent 's off-Broadway opening scheduled for early 1996, Larson agreed to the NYTW's hiring of Lynn Thomson, a professor of advanced playwrighting at New York University, as a dramaturg 5 to assist him in clarifying the storyline of the musical. Thomson signed a contract with the NYTW, in which she agreed to provide her services with the workshop production from May 1, 1995, through the press opening, scheduled for early February of 1996. The agreement stated that Thomson's "responsibilities shall include, but not be limited to: Providing dramaturgical assistance and research to the playwright and director." In exchange, the NYTW agreed to pay "a fee" of $2000, "[i]n full consideration of the services to be rendered" and to provide for billing credit for Thomson as "Dramaturg." The Thomson/NYTW agreement was silent as to any copyright interests or any issue of ownership with respect to the final work.

In the summer and fall of 1995, Thomson and Larson worked extremely intensively together on the show. For the most part, the two worked on the script alone in Larson's apartment. Thomson testified that revisions to the text of Rent didn't begin until early August 1995. Larson himself entered all changes directly onto his computer, where he kept the script, and Thomson made no contemporaneous notes of her specific contributions of language or other structural or thematic suggestions. Thomson alludes to the "October Version" of Rent as the culmination

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of her collaborative efforts with Larson. That new version was characterized by experts as "a radical transformation of the show."

A "sing-through" of the "October Version" of Rent took place in early November 1995. And on November 3, 1995, Larson signed a contract with the NYTW for ongoing revisions to Rent. This agreement identified Larson as the "Author" of Rent and made no reference to Thomson. The contract incorporated by reference an earlier draft author's agreement that set forth the terms that would apply if the NYTW opted to produce Rent. The earlier draft author's agreement gave Larson approval rights over all changes in text, provided that any changes in text would become his property, and assured him billing as "sole author." 6

The final dress rehearsal was held on January 24, 1996. Just hours after it ended, Larson died suddenly of an aortic aneurysm. Over the next few weeks, Nicola, Greif, Thomson, and musical director Tim Weil worked together to fine-tune the script. 7 The play opened off-Broadway on February 13, 1996, to rave reviews. On February 23, Rent's move to Broadway was announced. Since its opening on Broadway on April 29, 1996, the show has been "an astounding critical, artistic, and commercial success."

Before the Broadway opening, Thomson, in view of her contributions to Rent, sought compensation and title page dramaturgical credit from the Broadway producers. And on April 2, 1996, she signed a contract in which the producers agreed to pay her $10,000 plus a nominal $50/ week for her dramaturgical services. Around the same time, upon the producers' advice, Thomson approached Allan S. Larson, Nanette Larson, and Julie Larson McCollum ("Larson Heirs"), the surviving members of Jonathan Larson's family, to request a percentage of the royalties derived from the play. In a letter to the Larson family, dated April 8, 1996, Thomson stated that she believed Larson, had he lived, would have offered her a "small percentage of his royalties to acknowledge the contribution I made." In reply, the Larson Heirs offered Thomson a gift of 1% of the author's royalties. Negotiations between Thomson and the Larson Heirs, however, broke down. 8

After the parties failed to reach a settlement, Thomson brought suit against the Larson Heirs, 9 claiming that she was a co-author of Rent 10 and that she had never assigned, licensed, or otherwise transferred her rights. Thomson sought declaratory relief and a retroactive and on-going accounting under the Copyright Act. Specifically, she asked that the court declare her a "co-author" of Rent and grant her 16% of the author's share of the royalties. 11

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A bench trial was held in the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ) from July 18-23, 1997. Judge Kaplan considered the testimony of over two dozen witnesses, as well as thousands of pages of documentary evidence, including Rent scripts, playbills, production notes, journal entries, and correspondence. In a decision rendered from the bench, Judge Kaplan concluded that Thomson was not a joint author of Rent and dismissed the remainder of Thomson's complaint.

On appeal, Thomson concedes that she has "virtually no disagreement with the District Court's findings with respect to what happened between her and Jon Larson, or with respect to the evidence of Larson's intent." Reply Brief for Plaintiff-Appellant at 2. Instead, the focus of Thomson's appeal is on whether the district court correctly applied the Childress test of co-authorship, and, secondarily, whether the district court's declaration that Thomson is not a co-author nevertheless means that she retains exclusive copyright interests in any material that she contributed to the work.

DISCUSSION

The district court properly defined the principal question in this case as: "not whether Lynn Thomson made a great contribution to the show. It is not whether she has been or ought to be compensated differently than she has been compensated. It is about whether what happened between Lynn Thomson...

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