Einhorn v.

Mergatroyd

A Playwright in Court
by Rebecca A. Frank
Newsletter July-August, 2006
This past spring, the Guild had an opportunity to weigh in on the perpetually controversial topic of the
relationship between stage directors and copyright law. In the case Einhorn v. Mergatroyd, Edward Einhorn was
a stage director who claimed that his blocking and stage directions of Guild member Nancy McClernans play
were copyrightable property belonging to him. Einhorn also claimed that he was owed compensation for his
directorial services, despite being fired during the rehearsal period.
The Guild submitted a memorandum of law as amicus curiae (i.e., an individual or organization that is not a party
to a particular lawsuit but is allowed to advise the court regarding a point of law or fact directly concerning the
lawsuit) in support of the playwright, McClernan, and her producer, Jonathan Flagg of Mergatroyd Productions,
to apprise the court of its view on the relevant copyright law, theater industry practice, and the public policy
implications of the case.
The following is a summary of the arguments made by the Guild in their memorandum to the court.
I. COPYRIGHT
A directors claim of a copyright in stage directions lacks the requisite originality and fixation for a
copyright. Blocking is largely utilitarian in nature, and stage pictures are composed of movements within scnes
faire or are protected from claims of infringement by the merger doctrine. The related doctrines of scnes faire
and merger prevent a work from being copyrighted if the expressions embodied in the work necessarily flow from
a commonplace idea (scnes faire) or if the idea underlying the work can be expressed only one way and the
idea and expression merge. As a result, where, as with stage directions, similar features of a work are as a
practical matter indispensable, or at least standard, in the treatment of a given idea, they are treated like ideas and
are therefore not protected by copyright.
Even staging notes cannot be considered copyrightable choreography. The play was not a musical, and no matter
what else may be said about Einhorns blocking notes, they do not fit the definition of choreography as defined
in the Copyright Act. Even if Einhorns blocking could be considered choreography, the simple steps he specified
may not be the subject of a copyright. Social dance steps and simple routines are not copyrightable. ... The basic
waltz step, the hustle step are not copyrightable. They may be utilized as the choreographers basic material in
much the same way that words are the writers basic material.
Prior to the litigation, Einhorn sent in a copyright registration for an annotated copy of McClernans script. He
asserted a copyright interest in a derivative work of the original play. McClernan did not, however, grant
permission to Einhorn to create or register a derivative work. To constitute a derivative work, the author of such
work must contribute (1) original material to preexisting material, (2) so as to recast, transform or adapt the preexisting work in such a way that the variation (3) renders the derivative work distinguishable from its prior
work in any meaningful manner. Einhorns annotations to McClernans copyrighted script did not meet the statutory
definition of a derivative work. Most importantly, even if Einhorn did complete a derivative work based on the
play, it would be an unauthorized derivative work and, therefore, invalid.
II. INDUSTRY PRACTICE
Producers hire directors to help turn a dramatists script into an ephemeral experience for an audience. To accomplish
this, a director shares ideas with the designers, actors, choreographer, and the writers as well. Directors do not
actually write the play, design the sets, costumes or lighting, act the roles, nor choreograph the dances. In this
sense, directors are interpretive, rather than creative, artists, and their role in the collaborative process is not
unlike that of an orchestra conductor. A conductor interprets a musical composition by working with an orchestra
to achieve a particular rendition of the work. No conductor, to our knowledge, has had the temerity to claim
ownership in his or her version of a Mozart symphony.
2006 The Dramatists Guild of America. All rights reserved.

A Playwright in Court 1

Under the customary terms of a playwrights contract with a producer, a director would have no expectation of an
interest in the playwrights stage directions, unless otherwise bargained for. A director may have numerous useful
revisions to the writers draft, but, regardless of the copyrightability of the contributions made, would not be
accorded the status of joint author because of the absence of mutual intent in the creation of the text.
However, far from minimizing the contribution of stage directors, playwrights recognize the centrality of their
collaboration, and the Guild recognizes the possibility of a stage directors contributions rising to the level of
authorship. The Guilds Approved Production Contract (APC) allows for the recognition of other collaborators
in the creative process by expanding the definition of author and allowing the playwright to grant authorial
recognition to non-authorial collaborators. The term author shall include any person who is involved in the
initial stages of a collaborative process and who is deserving of billing credit as an author and whose literary or
musical contribution will be an integral part of the play as presented in subsequent productions by other producers.
In this way, directors who, in fact, make copyrightable contributions participate in the subsidiary revenue streams
derived from their contribution to the play.
III. PUBLIC POLICY IMPLICATIONS
If the legislature or the courts ever grant to directors the right to copyright their ideas, the consequences for the
theater would be both far-reaching and disturbing. Ironically, the first victims that would suffer from
the establishment of a copyright in a directors blocking or stage pictures would be other directors. Every
director strives to be free to direct a play in the way he best conceives it. If a director had to ensure that his
version did not in some way employ ideas similar ideas to those in another version put up by a director years
earlier, it would stifle and ultimately strangle the ability to direct any play.
In addition, theaters, when confronted by copyright infringement claims, may decide to cancel a production, or
decline to produce the play, because of the threat of litigation. There are a limited number of ways for a character
to exit (exit left or exit right are the two most common), and it boggles the mind to think that if the playwrights
manuscript simply says that the character exits, but the directors blocking notes say exit left, the director has
a copyrightable interest in the stage direction. The chilling effect on theatrical licensing resulting from the assertion
of such tenuous claims will work to the detriment not only of authors and future directors but also of the theatergoing
public and to our society as a whole.
Plays in the public domain, from Shakespeare to Sophocles, are freely available. If a director could establish a
property right in his production of Romeo and Juliet by filing with the Copyright Office an annotated version of
the script with stage directions, then it is not inconceivable that a director could claim a copyright on the way in
which he chose to present the balcony scene in the play. Because there are only so many ways to do the balcony
scene, the first to copyright any of the obvious ways would get a monopoly on future production.
As for plays still protected by copyright, they would gradually cease to exist as the work of the playwright, giving
way instead to a multitude of legal partnerships between a playwright and directors whose productions he had
never seen. Should such copyright partnerships ever come into existence, they would operate as liens on a
playwrights play, restricting the playwrights fundamental right to control his creation. This would have
a devastating effect on the facility and vitality of theatrical production.
If any other theatrical collaborator (such as an actor or stage manager) were to file a copy of the plays script with
annotated marginal notes purporting to fix in tangible form the collaborators claimed contribution, then that
collaborator would be entitled to sue for copyright infringement every time the play were presented unless the
new producer first obtained a license from the collaborator. Where, as here, the claimed contribution is derivative
of the authors play and would have no existence independent of the underlying work, and where, as here, the
collaborator did not obtain permission from the author to make the claimed derivative work and appears to have
withheld this information from the Copyright Office, there was no basis for finding that the director had any
copyright interest in his blocking and stage direction for McClernans play.
In rendering its opinion, the court dismissed Einhorns copyright claims when the director agreed to cancel the
copyright registration of his blocking notes. The court then awarded the director a portion of the amount he
claimed he was owed by the producer, despite there being no signed contract between the parties, for the directorial
services he provided prior to the termination of his employment,

2006 The Dramatists Guild of America. All rights reserved.

A Playwright in Court 2

The consequences of this litigation are twofold. First, it underscores the importance of written contracts in all
business dealings. More importantly, the case furthers the discussion about the efficacy, or lack thereof, of attempting
to establish an independent copyright interest for directors in stage directions.
However, until a court is willing to decide these copyright issues head on, and in the face of continued efforts by
some directors to gain by law what theyve failed to obtain by collective bargaining or individual contract, writers
need to be vigilant in defense of their work. We urge you to contact the business affairs office when any director
proposes to you a directors agreement or any other kind of request by any nonauthorial collaborator for a coauthorship interest in your play.
The trial was held in federal court in the Southern District of New York from Mon., Apr. 24 through Wed., Apr. 26,
2006, in front of Judge Kaplan (the same judge who presided over the Rent case, Thompson v. Larson).
David Einhorn, Esq. of Anderson, Kill, Olick, P.C. represented his brother, plaintiff Edward Einhorn, and Toby M.
J. Butterfield, Esq. of Cowan, DeBaets, Abrahams & Sheppard, LLP, represented defendants McClernan and
Flagg.

2006 The Dramatists Guild of America. All rights reserved.

A Playwright in Court 3