Exit, Pursued by a Lawyer
By JESSE GREEN
Published: January 29, 2006
[...] In the time-honored way of the theater, Ms. McClernan and Mr. Flagg figured the show must go on. With the help of an assistant (who eventually received the program credit for direction), they supervised the remaining rehearsals, either largely restaging the play or retaining most of Mr. Einhorn's contributions, depending on whose side you believe. In any case, "Tam Lin" opened, ran for its scheduled 10 performances and closed. But the drama was not over. Soon playwright and producer were embroiled in a lawsuit that could ruin them personally and has huge implications for directors and playwrights everywhere.
The main interest of that suit, which Judge Lewis A. Kaplan of Federal District Court in Manhattan has scheduled for trial in April, is not whether an artist deserves to be paid for work his employers deem unsatisfactory. What's really at stake is something much larger, because Mr. Einhorn claims in his complaint that his staging contributions to "Tam Lin" — contributions that his former collaborators say they excised — constitute a copyrighted work of intellectual property, owned by him, and that the defendants must therefore pay for infringing the copyright. When the lawsuit was filed, in October 2005, a new run of the play was already in rehearsal, this time directed by Ms. McClernan herself, who had always intended to make "Tam Lin" an annual Halloween event. Because Mr. Einhorn says that even these new performances represented unauthorized use of his work, the potential tab, based on the maximum allowable statutory damage of $150,000 per infringement, is now up around $3 million, not including several other remedies he is requesting — along with his original $1,000 director's fee.
Under the circumstances, it seems questionable whether "Tam Lin," with its kidnapped prince, female hero and happy ending, will return in 2006. But many playwrights, including Ms. McClernan, feel that a more dangerous threat is lurking in Mr. Einhorn's copyright claim: the kidnapping of their plays. As a result, the famously collaborative process of theater-making is now shadowed by questions. Are directors engaged in anything akin to the kind of authorship protected by copyright laws? If so, what's to stop them from demanding payment whenever a play they once directed is revived? And what would that mean to the free flow of ideas in an art form that borrows heavily from all available sources? [read on...]