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The Strange Case of Edward Einhorn v. Mergatroyd Productions  Rating:  Rating
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 Posted: Tue Oct 10th, 2006 03:55 am
   
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nancymc
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Mana: 
If you're interested in legal issues for playwrights, please read my article about a director who registered a(n unauthorized) derivative copyright on a "blocking and choreography scripts" and then used that to sue me when I produced my own play. It's in the latest issues of The Dramatist, the magazine of the Dramatist Guild (represents US playwrights) but you can also read it online at:

mcclernan/strangecase" TARGET="_blank">http://www.mcclernan.com/mcclernan/strangecase

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 Posted: Tue Oct 10th, 2006 04:15 am
   
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Edd
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Nancy,

Wow!  Thanks for posting this.  Very enlightening.  This was the hot subject hitting all the forums awhile back and, needless to say, the genesis of many heated discussions concerning the rights of the playwright, the director and the producer.  This was the missing puzzle piece and adds an entirely new and fresh perspective. 

Again, thanks for posting and I will be watching this thread with interest.

 

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 Posted: Tue Oct 10th, 2006 12:29 pm
   
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lostsocks
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Wow that was terrifying - a very good case for the Guild's I think :)

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 Posted: Wed Oct 11th, 2006 12:29 am
   
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in media res
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Last edited on Wed Oct 11th, 2006 03:26 am by in media res

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 Posted: Wed Oct 11th, 2006 12:30 am
   
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in media res
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nancymc,

You are to be congratulated and thanked by every writer in the theatre.

I am just sorry that the judge did not find the suit harassment and made the plaintiff (that is a kind word for that kind of person) pay your legal bill, as he had his brother handle it most likely pro bono. It seemed beyond outrageous.

Did not The Dramatists Guild assist? Have there been any fundraisers in NYC for you to help defray costs? This is disgusting.

You are Joan of Arc of dramatists and should get Profiles in Courage award from the Kennedy family.

I hope you also read the post I made on this Forum about "A Chorus Line." Too many writers forget there is always some vulture lurking out there who will set up an opportunity to screw you. Even your freinds...which is what the "A Chorus Line" article is all about.

Years ago, a friend of mine was acting for a theatre compnay and they were well-endowed with money, and they were paying a pittance (while the administrators were being well-paid with six figures. Nothing has changed.) I said, "Why don't you ask for more money?" Well, they're friends," was the timid reply. I said, "Friends?! Friends?! Your friends will get you the money."

Your article is a great reminder we must be trained in business, too.

"Get it in writing."

in media res

Last edited on Wed Oct 11th, 2006 03:31 am by in media res

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 Posted: Sun Oct 15th, 2006 11:36 pm
   
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nancymc
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Thanks! We were hoping the judge would see it that way too, but he was so pissed off that this trial ended up in federal court he was in no mood to award any money, and said so. We agreed with him of course, that the case was ridiculous, but that didn't help us.

But it is wonderful to get messages like yours, to remind us why it was important to go through the trial, no matter how unsavory it was.

Thanks again.

===========================

in media res said:

You are to be congratulated and thanked by every writer in the theatre.

I am just sorry that the judge did not find the suit harassment and made the plaintiff (that is a kind word for that kind of person) pay your legal bill, as he had his brother handle it most likely pro bono. It seemed beyond outrageous.

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 Posted: Mon Oct 16th, 2006 10:56 pm
   
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Anubian Nights Theatre Co
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'We had been waiting throughout rehearsals for Einhorn to sign his contract.'

A Writer/Producer started reharsals without a contract with the Director....?

Gosh, there is a lesson for us all as I have done exactly the same thing myself. This really make one think about covering all the bases before the game begins!

Thanks for sharing this story.

TKL

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 Posted: Tue Oct 17th, 2006 01:00 pm
   
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Paddy
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Mana: 
Wonderful, article!

Frightening.

You did very well by all of us, Nancy!

 

Paddy

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 Posted: Wed Oct 18th, 2006 06:54 pm
   
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EdwardEinhorn
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These are the facts of the case, in brief:

I was hired to direct Tam Lin, but never paid.

After waiting a year, I sued.

Nancy claimed there was no contract.  The court found that emails stating my salary, etc., constituted an implied contract.  I was awarded 80% of the value of the agreement, plus interest.  The remainder was withheld because the judge, not knowing theater, was not able to fully evaluate my claim that the director's job ends after the first performance.

I used director's copyright as one of a few arguments regarding payment, as an alternative to the contact case.  However, since I won the contract case, the copyright arguments became moot.  I volunteered to ask the copyright office to remove the copyright in return for Mergatroyd's agreement to stop threatening to continue a series of lawsuits against me.  However, the copyright was never found invalid in any way.  This was not ruled on.

I offered multiple times to settle for less than the ultimate judgement. 

I do believe in director's copyright, but I think it applies to director/producer questions (such as this) or director/director questions.  I don't think it applies to the director/playwright relationship at all.

During the case and since the case, Nancy has attempted to use the case, and her distortions and outright lies about it, to defame me.  I would estimate she has written perhaps 60 pages worth of defamatory material on her website, and has deliberately gone on a campaign of harassment.  I regret she spent so much time, energy and money on the lawsuit.  I offered multiple times to settle and had no desire beyond my fee.  I honestly do not understand why she spent so much time and money.

I wish she would leave me alone and proceed to other projects.  Most of my time is taken up currently with projects I consider far more important than this lawsuit.  It is time to move on.

Edward Einhorn
http://www.untitledtheater.com

 

 

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 Posted: Wed Oct 18th, 2006 07:33 pm
   
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Edd
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Edward,

Firstly, I would like to welcome you to our forum.

Secondly, I have heard about this conflict on every theatre forum and I still know nothing, really.  I would not and will not make judgements in either direction.  However, I would like to take this opportunity to inform everybody posting on this forum that toward whatever side you feel inclined, you will at all times remain respectful of the opinions and thoughts of others.   Argue away--but with civility and good manners.

What did you write today?

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 Posted: Tue Oct 31st, 2006 06:12 am
   
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nancymc
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The facts are in my article, published by the Dramatists Guild, and also online.

The contract issue was totally beside the point. As my article makes clear, and we have emails to back it up, we WERE willing to pay Edward Einhorn - contract or no contract. But Edward and his lawyer brother David always seem to emphasize technicalities over principles.

As I said in the article, we were willing to begin negotiations at $500. The judge awarded Einhorn $800. That means that Edward Einhorn dragged my partner Jonathan Flagg and I through federal court, costing us over a hundred thousand dollars over a difference of literally $300. Remember Edward, when Judge Kaplan asked you during the trial "have you ever heard of small claims court?"

And if anybody's interested, the case is not over yet, because although the Einhorns agreed to cancel their ill-gotten copyright registration in court back in April, they sent a letter to the copyright office saying that they wanted to cancel the registration because, since they no longer had any plans to sue me, they have no further use for the copyright (!!!)

As a result, Edward's brother David should be having a conference with Judge Kaplan soon. Our attorney tells us that the copyright office will probably not find "no longer need the copyright registration as a basis for a lawsuit" sufficient for a copyright registration withdrawal.

So the case is not over - because Edward Einhorn still holds an UNAUTHORIZED DERIVATIVE copyright registration on my play TAM LIN for his "blocking and choreography" script, in spite of the fact that he agreed in federal court 6 months ago that he would cancel it.

I explain in my article exactly why Einhorn is wrong about the director's copyright, but for Einhorn and anybody else who hasn't read the article, here it is again:

------------------------------

"Incredibly, this is the director who demonstrated through his own actions exactly why his argument is wrong. He says “If the staging is used, the director will get royalties.”

But who is to determine if the director’s staging is being used? Einhorn claimed that I used his staging in the 2005 production, and demanded royalties, even though I directed the play myself using an entirely new staging concept. If Einhorn could claim that that was an example of using his staging, then virtually any subsequent production would be open to demands for royalties by him.

That was the very reason we could not settle the case and had to go to trial -- to remove any and all encumbrances on the play TAM LIN.

Incredibly, this is the director who demonstrated through his own actions exactly why his argument is wrong. He says “If the staging is used, the director will get royalties.”

But who is to determine if the director’s staging is being used? Einhorn claimed that I used his staging in the 2005 production, and demanded royalties, even though I directed the play myself using an entirely new staging concept. If Einhorn could claim that that was an example of using his staging, then virtually any subsequent production would be open to demands for royalties by him.

That was the very reason we could not settle the case and had to go to trial -- to remove any and all encumbrances on the play TAM LIN. "

---------------------------------

But back to Edward Einhorn's post here. I had to chuckle when I read:

"During the case and since the case, Nancy has attempted to use the case, and her distortions and outright lies about it, to defame me.

I would estimate she has written perhaps 60 pages worth of defamatory material on her website, and has deliberately gone on a campaign of harassment.  I regret she spent so much time, energy and money on the lawsuit.  I offered multiple times to settle and had no desire beyond my fee.  I honestly do not understand why she spent so much time and money.

I wish she would leave me alone and proceed to other projects.  Most of my time is taken up currently with projects I consider far more important than this lawsuit.  It is time to move on."

---------------------

Of course someone from a privileged background who sues people over basically $300 (and/or his belief in a director's copyright - I've never yet been able to figure out which came first - the copyright scheme or the snit over the money)  and who has brought ridicule on himself through his own actions - I am by no means the only person in the theatre world who despises his actions  - would want to do other projects that are "far more important than this lawsuit."

He's not the one still paying a lawyer, since his brother/production partner represented him - and thanks to the Einhorns' effort to avoid admitting to the copyright office that in fact they got the copyright WITHOUT my authorization the Einhorns are costing us still more money!

How easy it is for Edward Einhorn to piously offer that he's "sorry" and proclaim that it's time to move on to more important issues. Why shouldn't he be able to totally screw other people's lives without having to suffer any consequences? Why are people so mean to Edward Einhorn, simply for registering a copyright under false pretenses and then using it as a basis for a lawsuit in federal court? Why is the world so unfair to Edward Einhorn?

And BTW Edward - we started paying legal fees as soon as we were served with the lawsuit - since you apparently don't pay for your legal representation, maybe you don't understand how it works - and not just during the trial. So your slow, drawn-out, time-consuming settlement offers cost us PLENTY all by themselves.

As far as Einhorn's claim about my lies and distortion and defamation of him, I notice that he hasn't offered any examples of lies, distortion, or defamation, and I am fully ready to answer any charges that he has. Let's have it Edward - how exactly have I "defamed" you?

To paraphrase Michael Berube about Dinesh D'Souza, the easiest way to slander Edward Einhorn is to quote him directly.

And actually, Edward, I am doing other things. But since you've NEVER paid attention to my life, even when we were on relatively good terms, outside of how it could further your career, of course you wouldn't know that. Which is why you were able to email former members of the TAM LIN cast in January of this year and claim that my partner Jonathan and I were trying to get famous at your expense, and that while you were a big important somebody with years of important accomplishments, we were nobodies who only had our one show, TAM LIN.

I will admit that you have the advantage over me -  I have to work at a full-time job, and am still paying for my daughter's college education (I raised my daughter virtually alone, and for a couple of years was on welfare when my daughter was small - it took me years to struggle out of poverty - not that you ever had enough interest in me as a person to find that out) while you seem to be free to spend all your time doing theatre projects.

Well don't you worry about me - in spite of my full-time job and overwhelming legal fees, I've been writing plays (two of which are scheduled for productions) doing my own productions, and running my non-profit theatre group NYCPlaywrights, which I've been doing since November 2000. I'll be involved in NY theatre for a good long time. Get used to it.

And telling the truth about you takes almost NO time out of my busy schedule. But thanks for your concern.

If anybody has any questions about this issue, and wants to hear what I REALLY think of Edward Einhorn, feel free to email me.

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 Posted: Tue Oct 31st, 2006 06:21 am
   
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nancymc
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PS - sorry for the repeat in the quote from the article "Incredibly, this is the director..." I guess I'm just tired since I worked all day to pay our lawyers. And did I mention that the Einhorns are still racking up the charges for us?

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 Posted: Tue Oct 31st, 2006 05:04 pm
   
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scenedreamer
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""He's not the one still paying a lawyer, since his brother/production partner represented him - and thanks to the Einhorns' effort to avoid admitting to the copyright office that in fact they got the copyright WITHOUT my authorization the Einhorns are costing us still more money!""


This sounds like what I call "Legal extortion."

Attorneys elected to the U.S. and state legislatures have complicated the court system to the point where it impossible to defend oneself.  An attorney is required to negotiate the ridiculously complicated system.  An attorney, or a person with free access to one can file the most ridiculous case and extract funds from innocent victims who cannot afford the exorbitant legal fees necessary to defend themselves.  Attorneys are reluctant to take on legal harrassment cases because they use the same tactics to extort money from others.  It is reprehensible, but standard operating procedure in the legal system of the 21st century.  

At least maybe it's good material for a play.

sd

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 Posted: Tue Oct 31st, 2006 10:02 pm
   
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nancymc
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You seemed to have deleted Einhorn's inflammatory post too, which is fine with me. And now since I don't have my post to look at any more, and don't remember every line exactly, and you haven't told me specifically what you consider crossing the line, I don't know how you expect me to avoid it in a revised post. I don't recall calling names, just saying that I thought there was something wrong with Einhorn - and for reasons that I explained.

In any case, I will save any further personal observations about Edward Einhorn for my own web site. I am grateful for this forum, since this the first chance I've had to see the kind if slant that Einhorn is giving to the case, and it has certainly been a revelation. But I never say anything of a factual nature about Einhorn's activities, or the case, without having evidence to back it up.

The important issue as far as other playwrights are concerned is that the case is not over yet. The copyright office gave the Einhorns three choices in their application to cancel the registration they obtained for their derivative work without my authorization:

- The work is not copyrightable.

- It is a derivative copyright registered without authorization of the author of the original work

- The copyright was a fraud.

Rather than select one of the above, the Einhorns instead invented a fourth choice: the copyright was no longer needed as a basis for a lawsuit.

It is because of the Einhorns' refusal to play by the rules of the Copyright Office that Einhorn's derivative copyright on my play still exists, and why my partner and I are forced to pay more legal fees, long after the case was settled.

This case would not be of any interest to anybody except Mergatroyd Productions or Edward Einhorn except for Einhorn's unauthorized derivative copyright registration. Whether we paid Einhorn $800 or $1000 is not a big deal - and paying him $800 was totally dwarfed by the legal bills he forced us to pay. If it wasn't for the copyright registration, the case would never have ended up in federal court, with a very pissed off Judge Kaplan, who rightly felt that the case should never have ended up in federal court.

And until the US Copyright Office begins demanding proof of authorization before it grants a derivative copyright, any American author is at risk of going through what I went through. The Einhorns may eventually be forced to admit that they in fact did not have my authorization to create a derivative work from my play, but why did I have to go through so much hell for it?

I defy anybody here to imagine being forced to go through what I had to go through thanks to Einhorn, to go through what I am still going through, and not feel the deepest antipathy towards him. And occasionally be human enough to express those feelings in personal terms.

But the issues involved in this case are much more important than my feelings about Einhorn, which is why the Dramatists Guild got involved. I would love to debate somebody (not Einhorn, unless it's online) who believes in a director's copyright, because the theory behind it, at least as expressed by Einhorn, is deeply flawed.

If you want to hear my side of it, read The Strange Case of Edward Einhorn v. Mergatroyd Productions, and feel free to ask questions about it.

Thanks.

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 Posted: Tue Oct 31st, 2006 10:14 pm
   
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Edd
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What is crossing the line, ladies and gentlemen?  Crossing the line is when you stoop to call another member of this forum negative names.  What are negative names?  Negative names can be as simple as stupid on up to profanity.   Once this rule of courtesy is allowed to be broken it will change this forum into something of which we will no longer be proud.  

And, Nancy is quite correct.  Edward's post was highly inflamatory.  If I had seen his earlier none of this would be necessary, but I didn't and I am truly sorry.

What did you write today?

Last edited on Tue Oct 31st, 2006 10:58 pm by Edd

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 Posted: Tue Oct 31st, 2006 10:50 pm
   
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Edd
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Nancy, I read your rewrite and assuming all you said is truth, I fully understand your hard feelings and your anger.  I was thinking as a playwright  (the only way I know) and I was outraged and angered by the very idea of it. 

I can see  a director made angry if another director used the original template to recreate the show sometime down the line.  I don't know whether or not that is copyrightable, but if I were Mike Nichols (sp.) and some director staged a revival years later of one of my successful and uniquely staged plays, I'd certainly begin to explore the legality of it.  'Though from reading your post this case is not remotely similar.  At the moment, as a playwright I would feel threatened by this because it could--weeks or years down the line--infringe upon my abiltiy to have my work produced while the directors and the producer are involed in some kind of legal suit.  It is the playwright in the middle of this scenerio who would lose.  Now whether or not I am correct in this I simply do not know, but it is alarming nonetheless. 

I cannot make a jugement, but you certainly make could sense to me point by point.

As for the two hundred dollars, I think Judge Judy might say, "Pay the man."  :>)

Thank you for reposting.  

What did you write today?

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 Posted: Tue Oct 31st, 2006 11:08 pm
   
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EdwardEinhorn
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As my post was deleted, I will write one last time.  Then I am done.

What Nancy is saying is not the truth.  I cannot spend my time going back and forth on this, but it is simply not true.  When someone repeats a lie again and again, sometimes others believe it.  But that doesn't make it true.

I don't know whether she is deliberately lying or actually believes what she says.  I don't care.

All the money she has spent on the case has been the result of her own decisions and mostly in order to harass me.  I have wanted to drop the case or settle the case from the beginning, but she refused and threatened to use anything I did as an excuse to drag me back into court with a new lawsuit.  There was never any need for her to spend the money.  The case could have been decided quickly and amicably, if she had been willing.  Instead, I believe she is using this as a forum for her own publicity.

Regarding the copyright issue:  apparently, she is angry that I didn't state the copyright is a fraud, or that it was unauthorized, or invalid.  I don't believe any of those things.  Why would I state it?  I stated that I wanted to drop the copyright because I was tired of going to court and being engaged with her in any way.  This is the truth. 

I had no idea that the copyright office would not let me drop the copyright unless the court had found it invalid. 

The court did not find the copyright invalid.  It simply ruled I was owed most of the money I asked for.  I do not believe the copyright is invalid.

If you are looking for the truth on this, look at her actions:  six months later, she is still actively posting all over, investigating my activities and then trying to block them (such as my Havel Festival) by sending letters to my collaborators, etc.  This is the action of someone who simply will do anything to attack me.

Edward Einhorn

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 Posted: Tue Oct 31st, 2006 11:41 pm
   
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Edd
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Edward,

Thank you for reposting.   I read it very carefully and I also saw your point of view.  This is one of those times I wish I were God to fully understand all of what has and what is being said.

This shouldn't be dragged around through the forums.  I believe that at this point the argument is moot.  Without divine intervention neither of you is about to embrace the other.  I'm just an old man with the wisest suggestion I have to give at this moment; You are both professional with careers in the Theatre and with names deserving of respect.  Why get mud on our own names?   Our good names can open doors in this business.  We Theatre folk are a closely knit community and move in circles that eventually connect, one to the other.  It's a small world.   Let it go.  This back and forth is only succeeding in more contempt and with it the kind of anger that would make me physically sick.  It would make most any feeling person sick.  It went to court and one of you won.  If we believe in the rule of law, as I do, let it go and move on to something that might create in you much happiness.

I see how this could be read as condescending.  That is far from my intent.  My intent is as it was, I genuinely know your pain and I sincerely want what is best for the both of you.

 

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 Posted: Tue Oct 31st, 2006 11:53 pm
   
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EdwardEinhorn
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Thank you.   I agree.   I have avoided talking about it, but I'm afraid I got sucked in.  It's hard to see nasty things written about you and continue to not respond. 

That being said, I am going to be sucked in slightly one more time to correct one thing--I won.  The court really did judge in my favor, or so I feel, as I was awarded 80% of what I was asking, I won.  The court didn't rule at all on the copyright.   So as I see it, I won.

OK.  Sorry.  That was the last comment.  I'm done now.

 

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 Posted: Thu Nov 2nd, 2006 03:19 am
   
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nancymc
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What an amusing scene that last comment provokes in my imagination: Edward Einhorn, clutching his $300 to his breast, running into the night screaming "I won! I won!"

But I will save most of my response to Einhorn's inaccurate assertions for my own web site, because the issue of interest to the people on this web site is not whether an obscure off-off Broadway director wasted a year and US taxpayers' money trying to gain $300 through a lawsuit in federal court.  Their interest is the copyright registration issue.

I've learned much much more about copyright law than I ever wanted to know, thanks to Edward Einhorn. And in spite of Einhorn's apparent belief that the Copyright Office is about his impressionistic interpretations, it is about the facts.

Here's how it breaks down in five easy steps:

1. I wrote a script called TAM LIN.

2. Edward Einhorn created a derivative work based on TAM LIN.

3. Edward Einhorn registered a copyright for his derivative work.

4. The copyright office requires that a derivative work registration have the authorization of the author of the original work.

5. Edward Einhorn did not have my authorization.

That Edward Einhorn can claim that he doesn't believe that his derivative copyright was unauthorized simply staggers the mind and flaunts all known concepts of logic, rationality, reality, time and space. How could an individual this side of the laughing academy hold such a belief?


The Einhorns agreed in court before the judge to cancel the copyright in late April 2006. Time goes by. David Einhorn sends a letter to the Copyright Office explaining that since the copyright no longer served the purpose of instigating a lawsuit, they have no further need of it.

More time goes by. The copyright is not cancelled.

My attorney contacts the Copyright Office to ask why no cancellation.

The Copyright Office explains that the reason offered by David Einhorn was insufficient.

David and Edward Einhorn seem to think that they can turn a multiple-choice into an essay question, hoping to get points for creativity. But alas for them, the Copyright Office does not see it that way.

The ONLY three justifications that the US Copyright Office will accept for a copyright de-registration are

1) The registration was procured by fraud

2) The registered work did not contain copyrightable material

3) It was an unauthorized derivative work.

Until the Einhorns pick one of those three, the unauthorized derivative copyright will not be cancelled by the Copyright Office.

Now if the brothers Einhorn think that Jonathan Flagg and I spent all that money to rescue TAM LIN from the clutches of Edward Einhorn, only to give up because the Einhorns want to play games like this, they are even more deluded than usual.

I will not rest until Edward Einhorn's unauthorized derivative copyright is cancelled, good and proper.

But of course we all know about "the law's delay" - it's one of the items that Hamlet lists as reasons for suicide.  It is certainly the reason why Edward Einhorn chortles over $300, while I cannot yet say that I got what I fought for.

And so it's back to court we go. I can't imagine that Judge Kaplan will be pleased to learn that the Einhorns are screwing around like this. He was already fit to be tied by their shenanigans throughout the trial. I will post excerpts from the court transcript in my next comment.

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 Posted: Thu Nov 2nd, 2006 03:49 am
   
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nancymc
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One of the highlights for me of Edward Einhorn v. Mergatroyd Productions was this moment. (from the court transcript)

----------------------------

JUDGE KAPLAN: So this was a hold-up, straight and simple, right?

EINHORN: No. Of course not.

JUDGE KAPLAN: You went to your brother, the lawyer, who was representing you for nothing, to send a demand letter saying pay me $2000 or the show can't go on. That's the sum and substance of your case, isn't it?

-------------------------------

Judge Kaplan elaborated on this in his opinion:

--------------------------------------------

Truly, one of the sad parts of this whole mess, as luck would have it, is that Mr. Einhorn's brother, Mr. David Einhorn, is a lawyer who, I take it, regards himself as an intellectual property specialist. So, the brothers got together and what is labeled a cease and desist letter was prepared on the letterhead of a well-known firm in this city in which the claim was made, on behalf of Mr. Edward Einhorn, that any performance of the play would constitute a willful infringement of copyrighting; and two, the blocking and choreography owned by Edward Einhorn, the offer to grant a license to the production company for the eight scheduled performances only if $2,000 -- double the agreed compensation -- were paid before the show opened the day the letter was written. Moreover, it indicated that if the defendants ever wished to perform the play after this currently scheduled run, they would have to pay more. It concludes with this paragraph: Failure to provide this payment to Einhorn -- meaning Edward -- will subject you to liability for willful infringement of Einhorn copyrighting and to the blocking and choreography. You are put on notice that in accordance with 17, U.S. Code, Section 504(c)(2), if this run continues without his permission, you may be liable for statutory damages of up to $150,000 per performance of the play and for all of Einhorn's attorneys' fees. You are put on further notice that further performances of the play using our client's blocking and choreography may render you liable for criminal copyright infringement under 17, U.S. Code, Section 506 and 18, U.S. Code, Section 2319.

Now, once again I digress and make two parenthetical remarks about this letter. The first is that it bears the date October 22, which was the day after the show opened. In fact, I find that it was written, as distinguished from delivered, on October 21st, indeed, in all likelihood, shortly after Edward Einhorn got finished sending his e-mail to the cast of the show in an effort to upset the opening. The second parenthetical comment I would make, and it is parenthetical only because it is not to the point of a decision but to the conduct of Mr. David Einhorn, it is a violation of Disciplinary Rule 7-105 of the Code of Professional Responsibility in the State of New York for an attorney to threaten criminal prosecution to gain advantage in a civil dispute. I think it is at least arguable that David Einhorn's inclusion of the last line of the letter constituted a violation of the disciplinary rules. I will not render any final decision on that now. It is not my place to do that now or later. But, surely good judgment had been dispatched with long before this letter went out of the office of Mr. David Einhorn, even if it didn't go so far as to violate the disciplinary rules.
-------------------------------------

So the Einhorns trying to make the law their bitch by refusing to pick one of the three options offered to them by the Copyright Office is not unprecedented. They also "threaten(ed) criminal prosecution to gain advantage in a civil dispute." And please note that rather than demanding $1000 which Einhorn keeps saying is all he wanted, they took the opportunity of the cease and desist letter to try to scare us into paying Edward an extra $1000.

We have not yet pursued the issue of David Einhorn's possible ethical violations. But certainly Judge Kaplan has come to associate the name "David Einhorn" with wacky legal shenanigans.

As far as the name "Edward Einhorn" - that reminds me of Prison Warden Norton in The Shawshank Redemption, and the little plaque that he had on his office wall that said: "HIS JUDGMENT COMETH AND THAT RIGHT SOON."

Maybe not as soon as I would like, but I am still confident that our system of laws will see to it that Edward Einhorn is compelled, one way or the other, sooner or later to cancel his unauthorized derivative copyright. 

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 Posted: Thu Nov 2nd, 2006 10:50 am
   
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Poet
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Nancy - I'm intrigued by all this, and if nothing else my heart really and truly goes out to you for your misfortune in having disagreed with a man who had an expert brother who, presumably, acted for him inexpensively or free.  For that, if nothing else, if you placed a pay-pal system on your website my gut feeling is that I would be happy to contribute a few $ as a writer toward your costs; not because I know you to be 100% flawless in this (because I do not have enough awareness or knowledge of the case) but because no writer should have such an inequitable field on which to fight for ownership of their work.

And I don't believe there is any doubt, is there, that beyond some minor directors' notes - surely technicalities - the original Tam Lin is 100% your work?

Have I missed something? In the UK one owns the copyright in one's work whether one registers it anywhere or not, although it's advisable to record it in any one of a number of ways in case of a breach (which I do).

So I am a tad confused; it might just be the US legal system, but if Mr Eindhorn could claim that any future performance breaches 'his' copyright (because it would allegedly use elements of his blocking etc), surely 'his' Tam Lin - which was based to an almost infinite degree on the original work, the original MS - must surely breach your copyright?

Is US law different?

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 Posted: Thu Nov 2nd, 2006 04:58 pm
   
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Mozz
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Well after reading that, I will make sure to remember the name Edward Einhorn forever, and keep it as a warning.  and I will e-mail this story to all my writer friends.

What a fantastic story.  I agree that directors do their part to sometimes develop a work, but blocking and choreography copyright seems a little bit of a stretch to me.  I mean there's only so many ways one could exit the stage... what happens when all those exits are copyrighted by different directors.  Do I have to rig them to fly out?

But, this I find is a rare occurence.  I for the most part find that the really good directors are open to sharing and the art of contribution. (although good directors are not that easy to find.)  and when I find a good director, I make them part of the process, and make sure they are properly rewarded.  I would even share credit if they make a discovery so big, that it changes the work drastically.  (but that falls onto the realm of dramaturgy.)

But to try to kidnap the play away from future productions, seems more of an ego driven self delusional rampage than solid base for a case.

I'm sure he is very creative, i mean, just the way he twisted words, in what amounted to a case of extortion and almost managed to get away with it, shows sign of creativity. 

But Jesus H. Christ, the man should never be allowed near a play again.

However, having grown up in Newark, New Jersey... this would have been a case that would I  have been dealt with on the street... with a spiked baseball bat.  

 

 

Last edited on Thu Nov 2nd, 2006 05:09 pm by Mozz

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 Posted: Fri Nov 3rd, 2006 12:22 am
   
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nancymc
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To answer your questions/comments Poet:

The original Tam Lin is 100% your work?
Yes it is.

 In the UK one owns the copyright in one's work whether one registers it anywhere or not, although it's advisable to record it in any one of a number of ways in case of a breach (which I do).


It works the same way here. Unfortunately, I did not register my copyright until after Einhorn registered his, which prevented me from certain monetary recovery options that I might have otherwise had. I should have registered TAM LIN before I produced it. I hope other people learn from my mistake.
your misfortune in having disagreed with a man who had an expert brother who, presumably, acted for him inexpensively or free. 
Not only acted inexpensively or free, but was willing to flaunt the law too. First with the possible ethics violation in the cease and desist letter, and then with the unauthorized copyright registration. All for a dispute that netted them $300 more than we planned to pay.

And actually, my partner Jonathan, who was responsible for the financial aspects of the TAM LIN productions, is normally very generous, and if Edward Einhorn had made the tiniest effort to talk to us like human beings, instead of immediately running to his brother and threatening us with criminal prosecution and demanding $2000, and claiming he owned a copyright and held rights to my play's productions, he might have had his entire $1000 back then. As I say in my article, I was actually in favor of paying him the entire amount, if for no other reason than the experience of working with him had been so unpleasant for me that I never wanted to see his face or hear his name ever again - and I felt that way even before the final tech rehearsal when everthing went kablooey. 

But Jonathan hates nothing as much as being disrespected, and Einhorn had shown his disrespect for both of us, in big ways and small throughout the entire rehearsal period, (on top of the serious error involving the scrim, and then there was the sulking and the poison pen email to the cast and crew) so Jonathan was in no mood to offer him more than $500 - and of course once Einhorn claimed he held a copyright on this "blocking and choreography" script, paying him would have meant we agreed that he held rights to future productions of my play. And so we would probably have ended up in court with him sooner or later even if we HAD paid him.

So I am a tad confused; it might just be the US legal system, but if Mr Eindhorn could claim that any future performance breaches 'his' copyright (because it would allegedly use elements of his blocking etc), surely 'his' Tam Lin - which was based to an almost infinite degree on the original work, the original MS - must surely breach your copyright?
Not being a lawyer, I saw it that way too, and said so, and as a result Einhorn says on his web site that I was deliberately trying to confuse the copyright issue. I'm glad it isn't just me who made the error in thinking that way.

Einhorn's copyright doesn't breach my copyright, but it does represent possible encumbrances on my ability to produce or have someone else produce my play TAM LIN. And Edward Einhorn himself demonstrated what those encumbrances might be. In their cease and desist letter it says:

"Our client is willing to grant you a license to use his blocking and choreography for this run only if you will pay him $2000 (two thousand), before the opening of the show today, in settlement of this dispute. It is made clear, however, that even if this amount is paid to Einhorn today, you will not be accorded the right to use his choreography and blocking in future productions of the Play, absent further negotiations with Einhorn."

I disliked some of Einhorn's blocking, and none of it was special or ground-breaking, so I had no burning desire to use it, and he did not do any actual choreography by any standard sense of that term. But it was clear that Einhorn considered ANY subsequent production of TAM LIN a use of his blocking and choreography, no matter how different  it might be from the 2004 production. That's why he also sued me for the 2005 production of TAM LIN, even though I directed it myself with a completely new staging concept, brand new set, and a revised script.

And his claim to a copyright was based on a piece of work that was incredibly flimsey in itself. Some of the blocking that he was trying to copyright was literally a restatement of my stage directions. For example, in my original script there was a stage direction that read:

(Dunbar shakes Aberdeen’s hand.)

His blocking and choreography script reads:

D & A shake hands.

Other items he felt were worthy of a copyright was "stage right" and "stage left."

Is it any surprise that sometimes this case gives me the sense of being Alice in Wonderland?

Last edited on Fri Nov 3rd, 2006 12:46 am by nancymc

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 Posted: Fri Nov 3rd, 2006 12:41 am
   
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nancymc
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Mana: 
But to try to kidnap the play away from future productions, seems more of an ego driven self delusional rampage than solid base for a case.


That seems to me like a perfect description of what happened.

And I won't deny that I've had some violent fantasies provoked by this case. But just as Edward Einhorn's reaction to a small monetary dispute was to go absolutely over-the-top, lie to the copyright office and drag us through federal court, using a spiked baseball bat would be even more crazy and over-the-top. However colorful and unladylike my words may be at times, I'm totally non-violent.

In any case, hitting them with the spiked bat of Judge Kaplan's wrath will be much more satisfying. Unless something's changed since I last heard from our attorney, David Einhorn has an appointment with Judge Kaplan tomorrow. Judge Kaplan was not shy about expressing his displeasure with David Einhorn during both settlement hearings and the court case itself. I doubt this new wrinkle in the case will make him feel any friendlier.

I'll keep you guys posted on the (unfortunately) continuing sage of the Strange Case of Edward Einhorn v. Mergatroyd Productions.

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 Posted: Fri Nov 3rd, 2006 02:37 am
   
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scenedreamer
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It is definitely time to move on past this.

However, there is a lesson to be learned here, and it is not to avoid Mr. Einhorn.  It is to register copyrights with the U.S. Copyright Office.  If Nancy had registered her play with the U.S. Copyright Office before the production, Mr. Einhorn's subsequent attempt to copyright would have been an infringement and it would have been investigated and prosecuted as a federal crime at government expense. 

Even large Hollywood producers with dozens of attorneys at their disposal avoid infringing on registered copyrights because no one has more attorneys than the U.S. Government which seriously inhibits legal extortion. 

The lesson is for playwrights is to beg, borrow, or steal the money to register copyrights with the U.S. Copyright office asap and definitely before production.

sd

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 Posted: Fri Nov 3rd, 2006 04:37 am
   
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nancymc
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Mana: 
It is definitely time to move on past this.

However, there is a lesson to be learned here, and it is not to avoid Mr. Einhorn.  It is to register copyrights with the U.S. Copyright Office.  If Nancy had registered her play with the U.S. Copyright Office before the production, Mr. Einhorn's subsequent attempt to copyright would have been an infringement and it would have been investigated and prosecuted as a federal crime at government expense. 

Even large Hollywood producers with dozens of attorneys at their disposal avoid infringing on registered copyrights because no one has more attorneys than the U.S. Government which seriously inhibits legal extortion. 

The lesson is for playwrights is to beg, borrow, or steal the money to register copyrights with the U.S. Copyright office asap and definitely before production.

sd



Sorry, but it isn't that simple.  I thought I made that clear through my numerous posts, but apparently not.

The ONLY significance about registering my copyright is that I would have had some POSSIBLE minor monetary options. But it has exactly NOTHING to do with Edward Einhorn deciding to register a derivative copyright on my play without my permission.

Registration is not some magic charm to ward off bad spirits. Edward Einhorn would have done what he did regardless of my copyright registration status. Sorry to disappoint anybody who thought registration is all they need to stay safe from the bad guys.

And how very nice that you can proclaim "it is definitely time to move past this" but then you aren't the one who is still forced to drag the Einhorns BACK to court six months after the trial.

The problem, not just for me but for every single American author is that the US Copyright Office does NOT REQUIRE PROOF OF AUTHORIZATION.

Their attitude is that if somebody pulls this kind of stunt, registering a derivative copyright on your work without your authorization it's YOUR problem. You have to hire a lawyer to prove it was unauthorized and get it de-registered. And the people who register the unauthorized script will have no shame in arguing their case. The Einhorns tried to argue in court that since I saw Edward taking notes in his capacity as director, I was authorizing the creation of his "blocking and choreography" script. They even subpoenad our stage manager and tried to claim that HER notes were part of the preparation for Einhorn's script. Fortunately Judge Kaplan did not buy it.

And if you can't afford to hire a lawyer too bad for you - the people with the money win again.

It's time that authors demand that the Copyright Office require proof of authorization for all derivative copyrights. Plain and simple. And when I've FINALLY gotten my play out of the clutches of the Einhorns, that will be my next project.

So no, it is not time to move past this. It's time to take action about this.

Last edited on Fri Nov 3rd, 2006 04:44 am by nancymc

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 Posted: Sat Nov 4th, 2006 04:13 am
   
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katoagogo
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EdwardEinhorn wrote:
Thank you.   I agree.   I have avoided talking about it, but I'm afraid I got sucked in.  It's hard to see nasty things written about you and continue to not respond. 

That being said, I am going to be sucked in slightly one more time to correct one thing--I won.  The court really did judge in my favor, or so I feel, as I was awarded 80% of what I was asking, I won.  The court didn't rule at all on the copyright.   So as I see it, I won.

OK.  Sorry.  That was the last comment.  I'm done now.

 


Dude, people are writing nasty things because you are doing a nasty thing. You are doing great harm to the American theater -- whether you believe you are justified or not -- this action is doing great harm.

What do you want your legacy to be?

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 Posted: Sat Nov 4th, 2006 04:40 am
   
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nancymc
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Well, David Einhorn did indeed appear before Judge Kaplan today, and as I guessed, Kaplan was NOT pleased to see him. He told David Einhorn he had 2 weeks to cancel the copyright registration or else.

Our attorneys sent us the transcript, and to say that David Einhorn did not cover himself in glory at this appearance is a huge understatement. And Kaplan used exactly the same word to describe David Einhorn's activities as I did on this board: "shenanigans."

One of the most appalling parts of the hearing is that at one point Einhorn seemed to be trying to convince the judge that since the Einhorns promised they wouldn't take action against us in the future for violating an unauthorized derivative copyright, we should all just forget about cancelling it. As if the entire trial, and their agreement to de-register the copyright, and the $100K+ we spent never happened. The reason we had a trial is because that is exactly what they kept offering us during settlement hearings - a promise not to sue us in the future for violating Edward's unauthorized derivative copyright.

We will NEVER accept Edward Einhorn's unauthorized derivative copyright on TAM LIN. The Einhorns may live in some dreamland where people go through hell to get a copyright deregistered only to say - "oh, you don't think you should have to admit it was unauthorized because you (incredibly) say you don't believe it was? OK then, never mind." But Jonathan and I don't live in dreamland. And neither does Judge Kaplan. And if the Einhorns don't snap out of their dream and do the right thing in the next 2 weeks, Judge Kaplan may well throw a bucket of ice water in their faces (metaphorically speaking of course.)

And Kaplan did say to David Einhorn : "I've put people in jail for this kind of shenanigans."

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 Posted: Sat Nov 4th, 2006 01:55 pm
   
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in media res
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Mana: 
That is great news!

I am following this like a good baseball game.

And I hope other playwrights and creative people are, too.

Maybe nancymc will have another article for the Dramatists Guild magazine.

Jail? Whew. Now that would be an interesting twist. As a NYC cop friend has told me, "48 hours on Rikers seems to make people come to their senses.”

Or as another guy once said to me, when I was younger when I said maybe I would go to jail rather than pay a traffic ticket.

HIM: “You ever been in jail?”

ME: “No.”

HIM: “I have. Pay the ticket.”

I listened to the voice of experience!

And a hundred thousand dollars is a bit more than the rsult of "shenanigans."


in media res

Last edited on Sat Nov 4th, 2006 01:58 pm by in media res

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 Posted: Tue Nov 7th, 2006 05:13 pm
   
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Mozz
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I think this man should go to jail. 

And I had a conversation with several friends over dinner the other day, and we came to the conclusion, that this is extortion, and I would so sue for that.

 

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 Posted: Sun Nov 26th, 2006 08:26 pm
   
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nancymc
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Hello fellow playwrights,

Edd has asked me to share with you what I’ve learned from the experience of being sued by a director, as described in mcclernan/strangecase" TARGET="_blank">The Strange Case of Edward Einhorn v. Mergatroyd Productions. I’m happy to do it, although the case is actually not over yet. Although the trial ended back in April when we agreed not to file a Rule 11 against the Einhorns if they agreed to cancel Edward Einhorn’s unauthorized derivative copyright, the Einhorns did not do what was needed to get the copyright cancelled. So we filed a Rule 11. The strange case gets stranger.


But so far I have learned the following:


REGISTER YOUR COPYRIGHT
Because Edward Einhorn registered his unauthorized derivative copyright on TAM LIN before I registered my copyright, I have fewer options for statutory damages and attorney’s fees, which makes it less appealing to sue Einhorn on the basis that his unauthorized derivative copyright infringes my copyright. 

It costs $45 for each registration filing. And what if you make substantial changes to the work? I learn something new about my play every time it is performed, and I make changes to my work based on those lessons. So at what point do I file a new copyright on the revised work? I was unable to find any general guidelines for copyright revisions on the Copyright Office’s web site, but I did find a discussion of web site content: “Generally, copyrightable revisions to online works that are published on separate days must each be registered individually, with a separate application and filing fee”

So if the Copyright Office expects a separate filing for every day on which something new is published online, it’s a safe bet they’ll want a separate filing for an updated play. This can get expensive. But it’s worth it, especially if the play is going to be produced and anybody but you is involved in creative decisions concerning the play.

Here is the US Copyright Office’s web site.


FIND OUT IF THE DIRECTOR HAS ANY RELATIVES WHO ARE LAWYERS
This probably seems silly, because you will rarely meet somebody who has the chutzpah to register an unauthorized derivative copyright on your work, and then use it as the basis of a lawsuit against you. But I’m living proof that it can happen. People who don’t have to pay huge court costs are less likely to think carefully before suing somebody on a frivolous or improper basis - in the words of Judge Kaplan “making a mountain out of a molehill.”

DO NOT AUTHORIZE A DERIVATIVE WORK ON YOUR SCRIPT
Of course I did not authorize Edward Einhorn to create or register a derivative script based on TAM LIN – I had no idea he had done so until he sued me a year after he registered the copyright. And Judge Kaplan ruled that nobody requested that such a script be prepared, and that the script was not prepared until after Einhorn and I parted ways. And in spite of all that, Edward Einhorn is still claiming, both in court (through his attorney brother David) and on this very discussion board, that he does not believe that his copyright registration was unauthorized, which is why he can’t de-register his copyright properly. 


So just imagine how it would be if, at any point during my association with Edward Einhorn, I had indicated that I believed in the cause of a director’s copyright, or thought that it would be fine if Einhorn held rights on future performances of my play. That probably still wouldn’t hold up in court. I don’t think anything less than me sending an email to Einhorn saying “go ahead, register a derivative copyright on TAM LIN” would be proof that I authorized anything, but it would have stretched the case out even longer. 

DIRECTOR’S COPYRIGHT IS OVER -  IF YOU WANT IT
The important thing to remember is that the cause of a director’s copyright is dead so long as a director’s “blocking script” is a derivative work. Which of course by definition it is – without the play, the blocking would be meaningless. My opponent Einhorn still does not get that, which is why he proposes specialized blocking notation, in his online essay promoting the cause of a director’s copyright. As if an unauthorized copyright would become authorized simply because of special notation.

And this is an important reason why we have refused the Einhorns’ offers concerning this copyright. Their first offer was to simply promise that they wouldn’t use the copyright as the basis of a lawsuit against us in the future. That was the reason they gave the Copyright Office for why they wanted to cancel their copyright. It wasn’t good enough for the Copyright Office either. Their second offer was to sign over Einhorn’s copyright to me. This would also not do, because that would be tantamount to saying that Einhorn’s copyright was valid property which could be handed over. My partner Jonathan and I consider Einhorn’s copyright a fantasy, incapable of being owned by anybody.  

So while you are not protected from a shameless person registering a derivative copyright on your work without your authorization, at least you can turn around and sue them for it - especially if you registered your copyright. And unless you want to share ownership rights of future performances of your work, you will not be foolish enough to ever authorize a director to register a derivative copyright on your work.

SUPPORT THE DRAMATISTS GUILD
The Guild couldn’t afford to pay our court costs, but they supported us in many other ways. The Guild is the only organization that is truly fighting the SSDC - Society of Stage Directors and Choreographers (I never heard of them either, until this case) in its campaign for a director’s copyright. If you are an American playwright but not a member of the Dramatists Guild, you should join. We playwrights need to stick together. One of the benefits of being a playwright is total artistic control – nobody can change a word of your script in performance without your say-so. The trade-off is that there’s much less money to be made writing plays than writing screenplays. But what the screenwriters gain in money, they lose in artistic control. If the SSDC had its way, directors would reign supreme in the theatre the way they do in movies. And that would be a very bad situation for playwrights – the worst of both worlds – little money and little power. The Guild is fighting to prevent that. The Guild's web site is here.

DIRECT YOUR PLAYS
I’m serious. Thanks to my experience with the director of TAM LIN 2004, I directed the play myself for the 2005 production. It was so much simpler. Instead of fighting with the director over completely wrong-headed interpretations of the script and bad casting decisions, I was able to get my vision of the play much closer to what I wanted, with much less stress. Directing is not brain surgery, in spite of the academic/theatre system that tries to mystify the process and promotes directors as gods. Good directors cast good actors, and then mostly stay out of their way and let them act. Good directors serve the play, not twist it and turn it and then claim authorship rights. Good directors know there is only so many ways to direct a play, and that you can’t copyright “stage left” and “stage right.” Good directors make sure the audience understands what is happening on stage, not play pretentious mind games in the mistaken belief that it’s cool and avant-garde. You could be a good director. Even a very good director. Especially for your own plays. You should consider doing it at least once. If only to get a sense of what directing a play entails. If you decide later you don't like to direct, at least you'll have an idea of what directors need from a playwright - and that will make you a better playwright.

I will be happy to share more lessons in this subject as I learn them. Thanks for your interest.

Last edited on Mon Nov 27th, 2006 10:43 pm by

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 Posted: Sun Nov 26th, 2006 09:01 pm
   
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bkahn
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Mana: 
I just read that the director, choreographer and design team of Urinetown on Broadway are challenging a licensed production directed by a Broadway cast member for using their "copyrightable" contributions. They claim that the license covers only the script and the music. Oh dear....

I was a director before turning to writing, so I have always felt comfortable directing the first productions of my own plays. The final script includes much of my directorial contributions that I hope will be used in future productions. In the past, two of my plays went on to productions in another city with the same director. In one case, where I had already directed the NYC production, I was pleased with what I saw out of town. In the other case, the play had not yet been produced in NYC, and the out of town production was a disaster.

I have also directed plays by other playwrights. Some of them went on to other productions. It never occured to me to see any of them for the purpose of checking if any of my direction were used. I always assumed/hoped it would be.

As an actor in the original productions of other writers' plays, I know I have made significant contributions during rehearsals. I always considered that part of my job as actor. I never kept track of those contributions for the purpose of claiming ownership. But, if the directors' claims are recognized as separate copyrightable contributions, then I guess the next step will be actors' versions that are registered. I have occasionally written roles for myself, but unless it's a one-person play, I can't portray all the characters. And I don't fancy doing the set and lighting design myself....and what about costumes? I can't sew at all...

The slope is getting slipprier...

 

 

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 Posted: Mon Nov 27th, 2006 12:11 am
   
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Poet
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Nancy - I'm sorry, but I just can't keep my big mouth shut any longer. Excuse me if this message seems curt; the subject is so huge that I prefer brevity at the risk of insult, which is definitely not intended. 

Is it not the case that Einhorn - who may or may not be a nice person, for I know neither of you - was only able to claim ANY copyright on ANY part of Tam Lin because you hired him to direct @ $1000 then refused to pay him after firing him 24/48 hours before the curtain call - a breach of contract Kaplan upheld against you? Had you paid him, surely the employee/employer relationship would have been 100% clear and the question of any 'ownership' in the production would have been negated?

On Einhorn's blog, he sums up what I suggest is the core of the dispute; "Judge Kaplan's final decision avoided the question of copyright, awarding me money for the implied contract we had instead—that I would be paid, and that Mergatroyd Productions would be able to use my work. This made the copyright question moot."

In other words... by upholding the employer-employee status and contract he had requested all along - but which you had disputed - Einhorn says that the basis for his copyright file was null and void and he would be prepared to withdraw his claim. Whether there exists a system to enable file withdrawal on that basis seems a little tricky; but even he agrees with you that there is now no basis for his file; not because the judge has ruled on the copyright issue - because he hasn't, as far as I can tell - but because he has upheld Einhorn's claim to contracted employee status.

In short; if you hire someone - pay them, or be careful that you fire them totally legally and pay them up - or accept that they're going to be p*ssed off with you and take whatever action they can? You say 'we playwrights should stick together' - but is it not the case that the action here is against you as a producer, not as a playwright, because you - as Mergatroyd Productions - refused to pay the Director the sum for which he was initially hired ($1000)?

Last edited on Mon Nov 27th, 2006 12:23 am by Poet

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 Posted: Mon Nov 27th, 2006 01:40 am
   
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nancymc
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In short; if you hire someone - pay them, or be careful that you fire them totally legally and pay them up - or accept that they're going to be p*ssed off with you and take whatever action they can? You say 'we playwrights should stick together' - but is it not the case that the action here is against you as a producer, not as a playwright, because you - as Mergatroyd Productions - refused to pay the Director the sum for which he was initially hired ($1000)?


Poet, have you read my article "The Strange Case of Edward Einhorn v. Mergatroyd Productions" I'm guessing you have not, since you are saying these things.

mcclernan/strangecase/default.asp" TARGET="_blank">http://www.mcclernan.com/mcclernan/strangecase/default.asp

It was Edward Einhorn himself who confused the issue of paying him as a director vs. a copyright on my play. If he sincerely had a dispute simply about his director's fee, he could have taken it to small claims court. That's what you do when you have a dispute over a relatively small sum of money. And that's why Judge Kaplan asked him in court if he had ever heard of small claims court, and why he said the the Einhorns made a mountain out of a molehill.

Einhorn turned the issue into something else when he registerd a derivative copyright on my play without my authorization - without even my knowledge. And then used that to sue me for infringement of copyright.

Are you saying that he was justified in registering an unauthorized copyright on my play because we didn't give him $1000? Does that make it OK to lie to the Copyright Office, which REQUIRES authorization of the author of the original work?

And as I also explain in my article, we did intend to pay Edward Einhorn. We were going to offer him $500. We have an email in which Jonathan mentions paying Einhorn - in respose to Einhorn's sabotage letter to our cast. We may well have given him more if he showed us an ounce of respect and tried to talk to us like people. But that wasn't his habit throughout the show - rather, he was constantly lecturing me on how theatre is supposed to be done, and leaving me out of the loop - which ended up costing us extra money for the production. And then when our tech night was a disaster due to his own error, he stopped talking to us - in the words of Judge Kaplan, he "basically sulked."

And as I also say in the article, I was actually in favor of giving him the entire $1000 at first because I wanted him out of my life entirely, since the experience of working with him had been so unpleasant.

But once he had his brother send us a "cease and desist" letter, demanding $2000 (not just $1000)  and claiming that he had ownership rights to all future productions of TAM LIN, he effectively sabotaged any possibility of further discussions about his director's fee. Because to pay him anything at that point would be a tacit agreement that in fact he did own rights over TAM LIN. If you read the cease and desist letter, you will see that it says:

"...even if this amount ($2000) is paid to Einhorn today, you will not be accorded the right to use his choreography and blocking in future productions of the Play, absent further negotiations with Einhorn."

mcclernan/einhorn_cease_and_desist_p1.pdf" TARGET="_blank">http://www.mcclernan.com/mcclernan/einhorn_cease_and_desist_p1.pdf

How would YOU have reacted to such a statement?

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 Posted: Mon Nov 27th, 2006 02:00 am
   
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And I forgot to point out, once again, that Judge Kaplan agreed with US - in that Einhorn did not deserve the full $1000. But whereas we were going to start our negotations with Einhorn at $500, Judge Kaplan gave him $300 more than that. Which we might have given him ourselves, if the whole thing wasn't thwarted by the cease and desist letter.

If the Einhorns hadn't turned this into a federal case, nobody would care about whether Edward Einhorn got $1000, $800 or $500. But because the Einhorns pulled the stunt with the Copyright Office, and made a claim for a director's copyright, it became of interest.

And that's why the case is not over - because the Einhorns are doing everything they can to avoid admitting to the Copyright Office that Edward Einhorn's script was either non-copyright worthy, fraudulent, or unauthorized. And as I've pointed out, it's actually ALL THREE.

Last edited on Mon Nov 27th, 2006 03:58 am by nancymc

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 Posted: Mon Nov 27th, 2006 02:29 am
   
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One final thing - the cease and desist letter says "you will not be accorded the right to use his choreography and blocking in future productions of the Play"

So maybe you're thinking well then, just don't use HIS choreography and blocking.

But we suspected that Einhorn would consider all subsequent productions of TAM LIN to be using his blocking and "choreography." We believed that he had such a high regard for his own work, and such little respect for our own creativity, that he was convinced that anything we did with TAM LIN would owe something to him.

He proved us right, when he sued us not only for the 2004 production of TAM LIN, but for the 2005 production as well. I directed that myself, from a revised script using a completely different staging concept. It couldn't have been more different from Einhorn's staging unless the entire plot, location and theme were changed. But of course Einhorn's registered blocking and choreography script included such ground-breaking concepts as "stage left." So if we had the same character exit stage left at the same point in the script, well OF COURSE we owed that stroke of genius to him.

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 Posted: Mon Nov 27th, 2006 07:03 am
   
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Poet
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"Are you saying that he was justified in registering an unauthorized copyright on my play because we didn't give him $1000?" (nancymc above)

Eeeerrrmm... yes, I am saying that this is more-or-less what I think.

If I understand the facts and dates from your website and Einhorn's website (both of which, yes, I have read) and copyright files PA-1-254-494 and PAu-2-992-434 and the other 20 registrations of creative works under the title Tam Lin (I've looked them all up) he did not register a copyright on your play. He acknowledged you as the author. Is it not right that he merely registered a copyright on his blocking and choreography of it, and only did so - and in fact could only do so - because you refused to pay him?

Is it not true that he didn't register that until three months AFTER you fired him, and after he had tried and failled to receive the contract payment he believed - and the court eventually upheld - that he was due?

Obviously nobody here can judge whether Einhorn made a good job of directing or not, nor whether your partner was justified in allegedly smashing up furniture on set (which I'm afraid seems childish to me) - but is it not the fact of the matter that you advertised the director's role for $500, Einhorn turned up and wanted $1000 which you agreed, he directed for 3 months, and 36 hours before curtain up you fired him only offering him $500 (bit of a coincidence) disputing that a contract had existed between you?

He can hardly have done such a lousy job if you fired him so close to curtain, can he? And on the basis that you had denied the $1000 contract existed, was Einhorn not able to cut the one absolutely set-in-stone unbreakable safety line you had - that copyright of any work of any employee is considered that of the employer?

Yes, I know it probably should have been settled in a small claims court, it seems to have all become childish and maybe even slightly unprofessional in several ways and maybe on both sides (see above) and Einhorn obviously wanted to p*ss you off and had the family skills to do so - but, with respect, is it not true that if you had paid him the $1000 in the first place he would have been an employee and could NOT have made ANY kind of copyright claim on your play anyway?

Again, I have to quote Einhorn himself; "Judge Kaplan's final decision avoided the question of copyright, awarding me money for the implied contract we had instead—that I would be paid, and that Mergatroyd Productions would be able to use my work. This made the copyright question moot."

I'm sorry if I appear to be taking Einhorn's side here. My natural first reaction, as a writer, was to side with you as the writer. But the spark that lit this fuse was your production company not paying a writer who was acting as a director, disputing a contract which the courts later upheld.

As Einhorn himself says; he won, the court decided that there WAS a contract of employ, he was eventually paid after the court case, and he now considers that as the element of his work which was added to yours was under such a contract you have every and all rights to it. In fact, if I understand it, he was paid 80% of the $1000 and not the full 100% ONLY because Kaplan did not work out that his job was done at curtain up, and pro rata'd the rate?

Everything else seems to me to be a red herring in this debate, or in some cases the matter getting out of hand and people wanting to hack others off during the legal process or, now, to keep picking at scabs.

Sorry if any of this sounds accusatory - it's really not meant so to be, I'm just trying to see through all the wind and fury to get to the root of the matter - which seems to me to have been your refusal to accept there was a contract with (and to pay) Einhorn, and his subsequent provenance of that in court and eventual receipt of payment! And by refusing the contract relationship you left him open to assert his own ownership over his work - no?

(For the record; I have absolutely no link with Messrs Einhorn!)

For me, the lesson I learn from this is that I will make sure in future that anyone who works with or gives input to my work - at any stage, no matter how small, pro or amateur - does so for at least a one penny fee. And I will pay them in full. And get a receipt!!!

Last edited on Mon Nov 27th, 2006 01:23 pm by Poet

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 Posted: Mon Nov 27th, 2006 01:52 pm
   
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nancymc
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"Are you saying that he was justified in registering an unauthorized copyright on my play because we didn't give him $1000?" (nancymc above)

Eeeerrrmm... yes, I am saying that this is more-or-less what I think.


I can't believe you are an author if you think it's ever right to register an unauthorized derivative copyright on a writer's work. And then use that as a basis for a lawsuit against the author.

And I am amazed that you think that it's fine to recover money by any means necessary, including committing fraud.

You and I clearly have different beliefs about what is acceptable behavior. And I find your beliefs extremely unsavory.

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 Posted: Mon Nov 27th, 2006 02:10 pm
   
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Poet
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I'm sorry that you took offence Nancy; in truth I thought you might, but it really wasn't my intention to cause same. I have done no more than that which you invited us all to do in your very first posting - to look at the case - and I tried very, very hard to choose my words carefully.

I thought that by denying Einhorn the status of the contract, you actually gave him the argument that if his work was NOT produced as an employee then his input to the play was registerable. Am I wrong?

I thought that the lawsuit you lost was not against you as an author, but as a production company which had failled to pay a contracted fee to a man who is also both a writer and a director. Am I wrong?

I must have missed something here; if someone has committed fraud, then surely that is a police matter. Am I wrong?

If I have got any of my facts wrong, of course I apologise. But in anything other than minor detail, I think they're right. Am I wrong?

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 Posted: Mon Nov 27th, 2006 02:27 pm
   
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nancymc
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I must have missed something here; if someone has committed fraud, then surely that is a police matter. Am I wrong?

You did miss something. The case is still not over - because the Einhorns are trying every trick in the book to avoid admitting what they did, to the Copyright Office. That is why we filed a Rule 11 against them - which is a sanction for a frivolous or improper lawsuit and which asks for court fees.

So yes, it is a "police" matter still.

And we only "lost" on the issue of whether Einhorn had a defacto contract. We won the issue of Einhorn being forced to give up his ill-gotten copyright on my play. And that's what we fought for - because Einhorn forced us to fight for it. That's why anybody gives a damn about the case. Because the Einhorns committed a civil offense and tried to use an extremely weak "blocking and choreography script" to try to make a case for a director's copyright.

I don't take offense by what you said. I simply find it amazing that you can maintain such things as you do, and yet claim to be a disinterested party in this issue. There's no way I can discover whether you are really a friend of Einhorn but I find it hard to believe you are not.

Luckily it comes down to the US legal system, not you. And I will certainly be reporting back here when we have finally forced Edward Einhorn to give up his ill-gotten copyright. And I will be posting transcripts (or link to same) so everybody here can see exactly the type of legal shenanigans the Einhorns try to pull.

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 Posted: Mon Nov 27th, 2006 02:42 pm
   
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Poet
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If I may... a Rule 11 submission is a file against the attorney, is it not, or an unrepresented claimant - and therefore not relevant to Edward Einhorn at all but to his brother? We can all be misled by an errant advisor (if this is what has happened), whether a relative or not.

So firstly, it is surely not an action against 'them' but only against David Einhorn?

Secondly, although you say this still makes it a police matter - I don't think a Rule 11 submission actually is a police matter, is it? I'm fairly sure breach can lead only to a court sanction (which can include financial penalties), but the 'punishment' is very restricted to that which might 'deter repetition' - and can start at no more than a severe reprimand from the Judge.

In fact, if I am right, Rule 11 sanctions are specifically NOT intended to be draconian, lest it deters others from pursuing - and losing - cases which are in any doubt and are then threatened with a Rule 11.

I also don't see where fraud has been committed - but in this country if we have evidence of fraud - a criminal matter - we report it to the police and they handle it all, with no costs to the victim. Surely this is, again, a civil matter? Or, at best, an allegation as yet untried, much less unproven, and for which neither Einhorn should at this stage be called 'guilty' by anyone? Bearing in mind that you know they can be litigious, I should be very careful about such statements if I were you!

And with respect, the 'only' case you lost here was exactly the one which caused the problem in the first place. Had you paid Einhorn, his employee status would have prevented him from claiming any kind of IP, would it not? And, I suspect, he may never have thought to have tried!

As to forcing him to give up the copyright... he has gone on record, several times, to say that now the contract issue is decided in his favour, he quite openly admits your copyright in the work produced by him when employed!!! 

And I do assure you that I had never heard of either of you until your first posting. And I was here first!

Last edited on Mon Nov 27th, 2006 03:31 pm by Poet

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 Posted: Mon Nov 27th, 2006 09:44 pm
   
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nancymc
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If I may... a Rule 11 submission is a file against the attorney, is it not, or an unrepresented claimant - and therefore not relevant to Edward Einhorn at all but to his brother? We can all be misled by an errant advisor (if this is what has happened), whether a relative or not.

So firstly, it is surely not an action against 'them' but only against David Einhorn?

Secondly, although you say this still makes it a police matter - I don't think a Rule 11 submission actually is a police matter, is it? I'm fairly sure breach can lead only to a court sanction (which can include financial penalties), but the 'punishment' is very restricted to that which might 'deter repetition' - and can start at no more than a severe reprimand from the Judge.

In fact, if I am right, Rule 11 sanctions are specifically NOT intended to be draconian, lest it deters others from pursuing - and losing - cases which are in any doubt and are then threatened with a Rule 11.

I also don't see where fraud has been committed - but in this country if we have evidence of fraud - a criminal matter - we report it to the police and they handle it all, with no costs to the victim. Surely this is, again, a civil matter? Or, at best, an allegation as yet untried, much less unproven, and for which neither Einhorn should at this stage be called 'guilty' by anyone? Bearing in mind that you know they can be litigious, I should be very careful about such statements if I were you!

And with respect, the 'only' case you lost here was exactly the one which caused the problem in the first place. Had you paid Einhorn, his employee status would have prevented him from claiming any kind of IP, would it not? And, I suspect, he may never have thought to have tried!

As to forcing him to give up the copyright... he has gone on record, several times, to say that now the contract issue is decided in his favour, he quite openly admits your copyright in the work produced by him when employed!!! 

And I do assure you that I had never heard of either of you until your first posting. And I was here first

So you're a non-attorney (I assume) from Great Britain, and yet you are opining on the subject of American Rule 11 sanctions? Sorry but we're paying good money to get legal advice from a professional. I have no use for your musings on American law.

On the witness stand, under questioning, Edward Einhorn said that the copyright registration was his idea. Would you like me to post the transcript here?

The evidence of the fraud is that the Einhorns freely admitted that the copyright was registered in order to instigate a lawsuit. And Judge Kaplan stated the same in his ruling. If you bothered to read my article or my postings in this thread you would know that.

I find it very odd that you claim to be a disinterested party, and yet the main thing you got out of our dispute with Einhorn was that if two parties have a dispute over money, it is perfectly fine if one of the parties does whatever it takes, including lying to a branch of the federal government, in order to try to get their way.

Putting on my producer's hat for a moment - it's odd that you haven't considered that MAYBE if Einhorn hadn't been contemptuous of my partner and I and MAYBE if Einhorn had not made a huge technical error, and then sulked about it when we pointed it out to him, our employer-employee relationship wouldn't have been so bad in the first place.

AND if Einhorn was only interested in his director's fee, he could have taken the case to small claims court. There's no reason why he had to take it to federal court. You do get that, don't you? He did not HAVE to sue us on the basis of a copyright to have his day in court over his director's fee. Why can't you seem to understand that?

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 Posted: Tue Nov 28th, 2006 03:12 am
   
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Edd
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This is it!  No more on this subject.  It is way too negative for this forum.  We've slung enough mud.  This is not a place for the public airing of filthy laundry.  It's over.  This forum will no longer be used to vent, humiliate, degrade or insult other members.  Mr. Einhorn has been dragged through the mud quite enough.  I no longer care who is right or who is wrong.  I'm sure there is enough guilt to go around. The Playwrights' Forum will no longer be a party to slander.  Everything that is said here is picked up by Google.  It is out there with all its foulness.  I am ashamed of myself for allowing this vicious vendetta to fester into this vile cesspool of slander and vindictiveness that is now transatlantic in proportion.  Whenever the name McClaren or Einhorn are Googled, The Playwright's Forum will be on the top of the list.  This is unacceptable.  This has gone on way past its time.  It's over.

 

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