The Artful Jurist

My father used to tell me that gumption and tenacity were the secrets to success. But here's a case that proves it's possible to take those things a bit too far.

According to an article in the Blog of Legal Times, a D.C. art dealer who also happens to have a law degree has been hammered with a court decision that ruled he must pay the other party's legal fees to the tune of $630,000.

The U.S. Court of Appeals for the D.C. Circuit upheld a lower court decision in a case where art dealer Robert Fastov sued Christie's over Fastov's unsuccessful attempt to sell a painting through the famed auction house. According to the article, Fastov filed a complaint that was more than 200 pages long back in 1997, and he maintained throughout that his tenacity would eventually win out.

So much for that theory.

The Court's ruling was not kind to Fastov, calling his conduct "egregious" and terming it "bad faith conduct."

So, while tenacity may be a helpful quality for a person to have, it's no substitute for a strong lawsuit.

While I've been puzzling over the company that claims ownership of Oscar Wilde's right of publicity, a much more recent personality has krept into that ring. I'm talking about the actor Marlon Brando, who died in 2004 and whose celebrity image is now the focus of a new lawsuit.

According to an article in the New York Times, the Marlon Brando Trust filed suit against the companies that own a Los Angeles apartment building that's featuring the "Brando Loft." (Since the apartment is said to overlook the Hollywood hills, I guess it would be kinda hard to say the "Brando" they're talking about isn't Marlon.)

Well, obviously, the people at the head of the trust see dollar signs in the Brando name. The question is, is this use of the name a marketing exploitation or just an homage to the actor. In my case, I'm not going to buy a home just because they tack a favorite actor's name on it. So, for me, it's not really much of a marketing use of the name. But then, that's just my opinion. Others might say differently.

Hmmm...Why didn't I think of suing somebody over something like this. I coulda been a contender!

The Shepard Fairey case, in which the artist is trying to prevent the Associated Press from making a copyright infringement claim against him for using without permission an A.P. photo of Barak Obama that Fairey turned into an illustrated poster?known as the "Hope" poster?now has the artist alleging, among other things, that the A.P.'s hands are unclean. That is, in his court pleadings, he says the A.P.'s claims are barred by the doctrine of "unclean hands" because the news organization often publishes photos of the artist's copyrighted work (and other artists' copyrighted works) without permission.

According to the plea, the A.P. is not only using the photos as part of its news dissemination operation. It's also offering them for sale and license through its image licensing database.

News reporting is a safe harbor for fair use of copyrighted works. But the licensing of the images for things that may be other than news...that raises an interesting point.

A friend recently shared with me a post from a theater listserv or bulletin board. The topic had to do with what a dramaturg actually does. If you're not familiar with the term, a dramaturg is someone who's supposed to work with a playwright during the early stages of a new play's production to help that author better craft the play for its performance.

I don't begrudge those who like working with dramaturgs. But, as a playwright, I have to admit I'm a bit skeptical of them. I fail to see the necessity for what amounts to a professional kibbitzer. (Isn't it the director's job to work with the playwright to make a better performance?)

Anyway, the post my friend sent me was composed by a dramaturg who described her role as one who is "an advocate for a dialectical process of meaning-making among people."

Uhhhhm, okay...if you say so.

But here's the part of that dramaturg's post that really troubles me, not only as a playwright but as a lawyer. She wrote, "I think that we get into the problem of the 'intentional fallacy' if we think of ourselves as somehow trying to realize a playwright's 'vision'--it assumes that the author is the source of all possible meaning."

Well, there's no disputing that theater is a collaborative process. But I think you'd be hard pressed to find too many playwrights who would agree with the statement that their vision of their own play isn't the source of the play's meaning. And, while I don't claim that a playwright couldn't benefit from someone else suggesting a new interpretation of the work, I'm very leery of anyone who comes into the process to revamp a play into something that has a meaning other than what the playwright intended.

The problem is one of authorship. The law is quite clear that one doesn't become a collaborator just by making some suggestions. But there have been court challenges where people who helped authors revise their works have later claimed joint ownership of the final product. The case involving the musical Rent was just such a case that ended with the script doctor reportedly getting a settlement payment from the estate of the late Jonathan Larson, who's credited as the work's author.

As a playwright, I don't want to be the next person who has to share proceeds or credit with a person who's supposedly been hired to help me polish up my play. So I'm disinclined to work with a dramaturg.

As a lawyer, I recommend to any playwright who wants to (or is forced to) work with a dramaturg that you first get an agreement in writing with that dramaturg to spell out exactly what that dramaturg will and will not get. It's not enough just to have that clause in the production contract with the theater company. Unless the dramaturg's working as an employee of the company, that company can't enforce its agreement with you over the dramaturg. So my advice is to get the dramaturg's signature on the agreement, or tell that dramaturg to go advocate a dialectical process of meaning-making with some other person.

Just a suggestion to fellow playwrights.

An author wrote to me with a question about the new deal Google has to scan the pages of out-of-print books into its online database. The author was concerned that her now out-of-print (but still copyright protected) book might be swept up in that scanning without her permission.

Well, as I understand the settlement that came out of litigation, Google's plan is to scan so-called "orphan books"?that is, books that are out of print and also have no current, clear copyright owner. These are the kinds of books that make up large percentages of libraries' musty, old shelves. Lots of old textbooks and other treatises that have long since seen their titles disappear from a publisher's catalogue. Trust me, there are no current best-sellers that are orphan books.

To put the author's fears at rest, even if her book is out of print, so long as she, as the copyright holder, is capable of being located, her book is not an orphan and should not end up in Google's net.