 and I'd be executive assistant to business affairs against the dual. Tonight's seminar is the first part and then a two-part series on fair use. The second part will be on Tuesday, May 12th, a week from today at 3 p.m. in the form of a DG Huddle. DG Huddles are online video conferencing sessions that focus on a particular issue, in this case, fair use. Our moderator, Ralph Savage, and associate executive director to business affairs, David Foe, will be answering questions and continuing the conversation from tonight. So if you have follow-up questions that maybe didn't get answered here tonight, we'll be available for the DG Huddle. If you're interested in signing up for this, you can either find me after the session tonight or you can email me. I've also got business cards on the front in case you might love us. And finally, I just want to remind everybody that please silence your cell phones, turn off your electronics, and with that, I will turn everything over to our executive director, Ralph Savage. Thank you. Thank you. Amy, my wonderful assistant. Tonight, we're talking about fair use and what does that mean? What does that mean to you specifically? What does it mean generally? And do you know it when you see it, like pornography, or is it something else? Is it predictable? Is it something you can prepare for? Is it something you need to be aware of? Yes, you can certainly say that. Fair use is the topic, and we're going to be talking about it in the sense of defining it, applying it to the theater industry and the issues that arise there. We're going to be looking at a specific case that happened recently and was resolved. And we're going to be talking about recommendations to you about how to prepare yourselves and how to address this issue as you go forward in your careers. So, to do that, we've invited some folks here tonight who kindly agreed to show up. So, first of all, our author, David Ajmi, his credits are in your program, but the one for the purposes of this evening that you should be aware of is the Play 3C. Also, assume to be graduate of the New Dramatist program. And his agent, Scott Shalov, from William Morris, represents a number of other well-known playwrights, and we'll talk to us also about this issue from the perspective of the agent and the issues involved with that. Palel Parnas is an attorney in private practice who's been involved in many of these kinds of cases and issues who's currently... You have your own practice now? I do. And does litigation and has litigated in this area when you were with Warner Music? Yes. And is an adjunct at Columbia Law School? And me, you know who I am. So, let's talk about fair use. Palel, could you start the ball rolling for us and just give us sort of a broad definition of what that is and where it comes from? Sure, sure. Under the US Copyright Act enacted in 1976, Congress formalized a defense to copyright, which referred to as fair use. And the instructions from the Copyright Act are that there are a set of non-exhaustive factors to be applied to figure out if the use that you've made of a copyrighted work that would otherwise be copyright infringement should be excused because it's fair. And what the act says, it says for purposes such as, again, such as is a non-exhaustive kind of term, criticism, comment, news reporting, teaching, including multiple copies of the classroom use, scholarship or research. And then it gives the four factors which are, and we're gonna be talking about those, the purpose and character of the use, including whether such use is of a commercial nature or is not profit educational purposes. Number two, the nature of the copyrighted work. Number three, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and how much you took. And number four, the effect of the use upon the potential market for or value of the copyrighted work. What have you done financially to possibly harm the original copyright holder? And on the first factor, often the first factor and the fourth are the most important. The first being purpose and character and the fourth being the effect on the marketplace. And when it comes to the first factor, in 1994 the US Supreme Court had a case called Campbell v. A Cup Rose Music, which was about a song parody of Pretty Woman. And the question was, did the parodist transform the original into something new or should they go down for copyright infringement? And in addressing that case, the court talked about the four factors and specifically talked about the first one and talked about the concept of transformativeness. That if the appropriator has transformed it, has transformed the original into something new, that goes a long way towards saying it should be fair. And the way the court phrased it was the more transformative the new work, the less will be the significance of other factors like commercialism that may weigh against a finding a fair use. Meaning even if you are making a commercial use of it, and in this context, I know you all hope to make commercial use of things, even if you're making commercial use of it, that doesn't mean you're not allowed to do it as long as you've somehow made a fair use and often courts will focus on transformative. And sort of to the obverse the court also said that we also agree with the court of appeals that whether a substantial portion of the infringing work was copied verbatim from the copyrighted work is a relevant question for it may reveal a dearth of transformative character or purpose under the first factor or a greater likelihood of market harm under the fourth. So at the same time saying the more transformative it is, the more you've changed it, the better, but also the more you appropriate, the more you take whole cloth, the more danger you're in of being told that you're not transformative, that you've appropriated the marketplace of the original work and that you've not changed it enough that it's not fair to allow you to do that. So, and I'll stop in a second, but a very good example would be, if you think about book reviews, right? Every book review in the newspaper usually will quote a line or two from the book, okay? That is technically copyright infringement. Somebody else wrote that and I'm copying it without the permission of the author or I don't need the permission of the author. The defense is fair use, right? Writing this one line from the book, copying it over, is not gonna harm the marketplace for the book. Ironically, if I write a review that says the book is bad, that might harm the circulation of the book but that's perfectly allowed, but the appropriation itself is not gonna have any impact. And you take the minimal amount possible to get your point across. So if your point is this author has a wonderful writing style, here's one sentence as an example of it. Or alternatively, this writer has a terrible writing style and he says it's an example of it. It's the same analysis, it should be the same. And in films, you see film criticism, showing clips of the film, and it's under that doctrine. They're allowed to do that. You can imagine if they tried to get permission to use the film clip to give it a bad review, how likely the movie studio would give that permission. Right, but there have been cases where if you lift a chapter out of a book, that's too much. That's not gonna be fair because the chapter can actually supplant the need to go by the book, whereas the book review is not gonna supplant that need. We can talk about the Minimus in a little bit. I do wanna take a step back, first, from the four factors to address the larger question, which is why is this exception part of our law? Why at all? Copyright is an exclusive right to control a certain amount of expression. So under the US Constitution, you have the copyright clause in section eight, which says Congress will have the right to promote the progress of the arts and sciences by securing for limited periods of time, we can talk about that issue in a little while, but for limited periods of time, to author is the exclusive right to their respective right. That's the right of part of this, another part about science. For our purposes, that's the part of the constitutional clause that copyright law comes from. But there's another part of the Constitution, that's the First Amendment, which says Congress shall make no law abridging the freedom of speech or freedom of the class. Well, how do you reconcile these two conflicting constitutional provisions? There's the right to have exclusive ownership over this amount of speech, and how does Congress do that when they have no right to restrict speech and freedom of the press? Well, the reconciliation is fair use. Fair use is the safety valve, the First Amendment safety valve of the copyright law, says, well, you have exclusive right except under certain circumstances, which we think are public importance, criticism, commentary, education, the purposes that are outlined in the law. And so to understand fair use, you have to understand where it's coming from. It's coming from a social good. It's coming from this notion of reconciling two constitutional values, freedom of expression and ownership of property. And the reconciliation of that is fair use. So you've got these four factors that Hillel was talking about. You've got the purpose and character you use. How are you using it? What work are you using? Is it a biography? Biographies have what they call a thin level of copyright protection because you can't copyright facts. You can only copyright expression about those facts. So how do you want to copyright the biography? Well, biographies have text aside from the facts. They have structure. They have a way of telling the story. And those elements can be copyrightable, like again, First Amendment, you can't own the facts of the biography, only the expression of it. You have the nature of the copyrighted work. So you have the purpose of the work, purpose of use and the nature of the work. And you have how much? How much can I take? As Hillel was saying, you can't take everything. Is there a certain number of words you can take? People use rules of thumb like that all the time. Here are 300 words, or it's all nonsense. It's all people reading tea leaves. You know, if you have had a fair use or not, when the judge drops the gavel and says, well, you're not, you're liable. There's a case going on right now involving Madonna and the song, Vogue, and the now. And it's happening now? It's happening right now. I'll explain why in a second. What are we doing here? And the allegation is that the horn blast, if you could think of a song in your head, there's like a horn blast that comes in throughout the song, that that note was lifted from another song. And the reason it's happening now is that they say until computer technology allowed them to realize it, they couldn't prove that that note was lifted from a song in the 70s or 60s. And the case is about one note. So. In the pharaoh, William, in the pharaoh, and the blurred lines. The blurred lines. The blurred lines happening also, right? There's a famous case, the Gerald Ford case, which happened when Ford, after he, he was writing his autobiography and the newspaper was putting out, put out 300 words out of a 500 page book, just about why he pardoned mixing. That was the only part they took. It would be de minimis, or only a little bit, under most, if you were just weighing how many words of the total, it's a tiny percentage. But the court said, no, that's not a fair use because you took the heart of the work. The only reason anybody cares about your presidency is because they wanna know why you did this. And if you co-op their market by publishing that information before the book comes out without permission, that's not a fair use. So de minimis, how much of the work? It really depends. It's a very packed specific kind of analysis. You can't say, well, I'm safe if I use 300 words, but if I use 400, I'll be okay. And by the way, just to further confuse everything. As technology and society continues to change, so in that case, there was no internet, right? So if the newspaper hadn't published those 300 words, they would not have been widely disseminated. But if some kid photocopies the page and puts it up on the internet, then today, then suddenly it is. And the question is, does that change the calculus? Does the easy access to the information change things or not? Some judges seem to think it does. Some don't, which makes it more interesting. And that ties into the fourth factor that we're talking about, the impact of use on the market for the original work. If we look at satire and parity, you would think, well, if you make fun of something, isn't that harming the market for the work? You're talking about, you're disparaging it, in a sense. Well, the courts say that that's not the kind of harm they're talking about. We want people to be able to criticize other things. It's part of our First Amendment tradition. It's part of creative speech that we want to encourage, not discourage, by allowing corporations to own the right to stop you from talking about their product or where they were. So, when you talk about harm in the market, they're not talking about harm to reputation. They're talking about, are you gonna plant the original in the market place? Will somebody buy your thing instead of the other thing? So that's a very different kind of an analysis. But we're talking about all this in the abstract, and we have a very specific situation here to talk about, because we have to play, right? There's Asians sitting right there, so let's make them talk. Tell us what happened. In the case of your play, David, when you first submitted it, did you talk to Scott about this play before you started looking for producers? Well, at the time that I submitted the play, Scott wasn't my agent. I have a different agent. We never really had this kind of conversation. I did a workshop of the play with Playwrights Horizons and Cluck Thumb. They co-produced the workshop of the play, and there was an independent producer who had just done another play of mine who wanted to do it. So we just sort of circumvented the whole submission process. I never really submitted the play, and that's how that happened. But your agent never said, well, you're making, you've written a parody of this company and we have a mission for you. I think they, yes, I mean, I think he did say something like, oh, you should be careful, and blah, blah, blah, and they might shut it down. We all kind of knew, and I had a friend who had worked for the producers who ended up sending the season to Sis and said, oh, they're very litigious and, you know, just be very okay about it. And we thought, well, it's a 99-C theater. It's the Rattlestick, but they're not gonna come down. Yeah, and of course, within four days they were there. And we were very, very sort of careful. But by the same token, we really did push the envelope because the production, we really did make the decision to have the set look like the three's company set, to take the iconography, to take the stock iconography from that show. And, you know, that was a decision that was made with the director and the producers from all of us together. So I wanted to use that iconography. Had we not used that iconography, I'm not sure that, I'm not sure what would have happened. I can't say, but we definitely did choose to do that. Was there anyone at the theater at Rattlestick? There are attorneys who were sending you notes like, don't use your name. Well, the producer, the lead producer on that show was a woman named Wendy Van Inheuble, who has a company called Peace by Peace Productions. And she showed it to her attorney and they thought we were okay, but they also said, you might get sued. I mean, you can't stop someone from suing you, they're gonna sue you. And you can't stop them from sending the cease and desist. So we sort of knew going in, you know, we're gonna flirt with this, we're gonna see what happens. Wendy really believes in the play, Rattlestick believes in the play, I believe in the play. So we just said, let's just do it anyway. Yeah, this is a side note. We often get calls here to go, if I do this, can I get sued? The answer is yes. Anybody can sue anybody for anything. The question is, will you win? That's a separate question. And that has more to do with, do you have the money to fight it? Or can you find good pro bono representation to help you fight it, as in this case? So that often becomes the power of the purse and you get exactly as much justice as you can afford. That's an issue for another day. But let's talk more about the chronology. And so Scott, were you involved at this point? No, David and I started working together after the cease and desist letter, after the production had closed. And so at that point, at the beginning of our working relationship, the issue was how do we extend the future life of this play? How do we get it published? How do we get it licensed in stock and amateur productions, making sure that this one really fascinating piece of work wouldn't be silence, that the production at the Rattlestick wouldn't be the be all end all. And so that's where the two of us started working together was in figuring out, David has publication relationships with both TCG and its Samuel of French, both of whom wanted to publish the play, but weren't able to. The play had effectively been hijacked by the cease and desist letter, and by sort of this ominous threat of, well, we're gonna get you from trying to do anything. Which really wasn't a threat. I mean, it was very real. We knew that, effectively speaking, David couldn't do anything with it. And so for us, it became about, how do we make sure that this artist's work gets out there? How do we make sure that this play continues to have the rich life it deserves and let other people interpret it and let other people derive meaning from it? And that's where we came in. And so both Samuel of French and TCG were incredibly helpful in giving us ammunition. Attached to our initial complaint were letters that they had drafted saying, this is why we're unable to publish it. David's opposition in this is blocking us from doing this. He can't provide the proper demarcation. He can't represent more than he has the full right to move ahead here. So effectively speaking, our hands are tied behind our backs and we want to license this play. Because they wouldn't actually go ahead and sue me. They just kept going like this. You know, like they were gonna do something and it's gonna be bad. And so, you know, I kept waiting around going, you know, like, you know, it's like a horror film. You're turning the corner going, when are they gonna get me? And, you know, my lawyers. And so what happened was actually prior to this, you know, the wonderful playwright, Robbie Bates, John Robin Bates, who, you know, had heard about the play, called me and said, you know, I can't get, he missed the play. He said, I want to read the play. And then he'd heard from his pals what was going on. And I think there was like a rumor happening that there was a cease and desist and I couldn't, you know, extend the play and we couldn't do anything with the play. And so he actually called the New York Times and said, you have to know about this. And then there was a Times article about it. And then Robbie actually wrote, I mean, he's an incredible person. He wrote a sort of a petition and got a bunch of people to sign this petition to help me and really help playwrights and artists, theater artists. I want to jump in at that point because I talked to Robbie about this. He sent the letter he was going to send out to petition and so he ran it past me for my comments. And this is where I think it's useful to talk about the satire parody dichotomy or distinction. Because in the letter, you know, Robbie's not a lawyer. He doesn't know what the legal significance is of using the word satire versus using the word parody. So I directed him to pick out satire and to talk about it as parody. And, well, could you tell us why that matters if I'm reading your lead up the right way? It is because you could do two things here, right? You could have used your play to comment on Free's Company or you could have used your play to comment on something else but still use Free's Company to get there. If that's where you're going with it. So an example, a number years back after the OJ Simpson trial, Penguin Books was going to publish a parody, maybe, of the OJ Simpson trial written in the style of Dr. Seuss. And I forget what it was called, but basically it was a combination of the writing style and illustrations that were clearly evocative of Dr. Seuss. Cat in the Hat. Right, no, Cat in the Hat was the original, and I just don't remember what it was called. And the court blocked the publication of the book saying that the object of their parody was not the same as that the entity was being harmed, meaning it was making fun of OJ Simpson at the expense of the Cat in the Hat, at the expense of Dr. Seuss. And to that reason, the book was not allowed to be published. So let's take that example. Had the book written in front of Dr. Seuss, perhaps it would have been allowed to be published and that would have been more of a parody, but because it was a satire in that sense that it was being satirical about Dr. Seuss but commenting on OJ Simpson, it was not allowed to be published. Yeah, the theory there being, you're trading on the fame and notoriety of Dr. Seuss to make some other unrelated point. You can't do that. But if you were writing a parody like Too Live Proof, Pretty Woman at Parity or Play 3C, where you're making fun of the thing, then that's a form of social criticism. That's a critique. That's what fair use is about. And so the distinction between satire and parody has a real legal implication that you need to be aware of. Even when discussing your work, much less as you're writing. Although I have to ask, in this case, you should not answer this question. Now I wanna answer it. Yeah, somebody could argue that you were not commenting on three company as much as commenting on society, societal norms, at the expense of a freeze company. One could make that argument, perhaps somebody made that argument, which would make it more like using Dr. Seuss to make fun of OJ Simpson. Right, but the court also said the case law also indicates that you don't have to just be making fun of freeze company, as long as that's part of the purpose that you're writing for. You can then expand your target beyond and make societal criticism related to what reason you're putting in that particular work. So, in our view, when we wrote our amicus brief, we focused on that aspect, so. So you got your, did the last, the cease and desist letter stop the play while it was running? No, I got the cease and desist on my opening night. My production manager called me Kendra and she was like, David, I have to tell you something. And I remember I was sitting in a tea place in the West Village and I was like, what, you know, and we didn't know what was gonna happen from day to day and eventually the producers were in contact with them. I was not in contact with the producers of the play or in contact with the television producers who held the rights and they worked something out where they said, you know, we'll let the play let the play run, but you can't extend it. And then once you're done, David, you have to agree to not do the play anymore. At which point I said, okay, hold on a second. And then I hung up whatever and I started calling around for lawyer help because I'm a playwright and I didn't have the money to get. I knew I couldn't afford a lawyer and I just kept trying to reach out to different people. Like, could you help me? You know, you hear these people and they're lawyers for the arts. Okay, hi, I'm an artist, help me. Give me some, no, no one would help me. No one wanted to deal with this. And I must have called on 10 or 15 people and no one really was interested in helping me with this. So I just was feeling really like this is a losing battle. And so I just said, you know, fine, I agree. And I sent them a letter saying, I agree informally in this email because I didn't know what else I could do. And then when Robbie, you know, contacted the Times, I thought Pat Healy was gonna do like this little sidebar thing, but it turned out to be this gigantic, it was this huge article with a huge picture of the play and I got, you know, 85,000 texts on my phone that night when I after I saw Sierra Lea's play and I was like, oh my God, what's happening? And I started getting, you know, a bunch of pro bono offers and then I started getting, you know, then the producers from DLT wanted me to send a form. They sent a formal like letter, like sign it right now. Do you know what I mean? And it became much more urgent. Like you have to sign this right away or we're gonna, you know, do something. And so, and I said, no, you know. Yeah, I think we called you even at that point. I think that was in the middle of it. I was getting like a lot of phone calls. And I was like, you know, it was really, it was a little, it was intense. I did wasn't expecting that level of engagement. So we have the guild that recently created an entity called the Dramatist Legal Defense Fund, which we had just started a few years ago for a number of reasons. One is about, it was originally motivated largely because of the claim of directors that they own the Copyright and Stage Direction, which we felt was a diminishment of the public domain and deprived audiences and theaters of their ability to stage the places as often as they were written. And so, but also we were interested in First Amendment issues and censorship and then involved in a lot of high school censorship cases, but it's copyright and First Amendment are principal areas and fair use falls squarely within those two issues. And when we heard about this, we tried to help find an attorney, but David was able to find a Davis at the, Davis Remain, Davis Remain, and we worked with Ed to fund, create, wrote and participate in support of their action, largely drafted by David Foe, my associate executive director and with my two cents money. And so that became part of our mission, but there were people who were very passionate about this because of the implications beyond David's play for you, for other people who wanna be able to exercise First Amendment rights and to have fair use survive because it only continues to exist if people use it. If you don't use it, you lose it. That was a huge part of I think why, let me, if I'm speaking to you correctly here, why we sort of press forward on this thing was the idea that the implications are so much bigger than just this play. You know, we talk about the fourth tentative fair use about what effect is this gonna have on the marketplace of the commercial value of it? I mean, David's written an explosive play, right? There is explicit content. There's a lot of really interesting dynamic theatrical stuff that's in this play that is not necessarily going to appeal to small community theaters across the country. I mean, this plays a bit as far from Bye Bye Birdie or Hello Dolly or whatever it is as he gets. And so at no point was this about let's go out there and try to get as much money as we can from the future life of 3C. It was about allowing an artist's work to go out there and be done and interpreted as other people's soft fit and that kept this play out there, that kept it alive. I mean, I really did not want to go to court, actually. I mean, I even said to you, like, I'm not going to court. You know, it just was really like the whole thing turned me off. I'm not a litigious person. I didn't want to tarry with these people anymore. The whole thing made me crazy. And you know, there was definitely a possibility that they could try to sue me for, you know, if they won, what if they did win? Then they, you know, might have to pay their damage, pay their legal fees. I mean, there were all these contingencies. I was very aware of it. And I was just, the whole thing made me nervous and kind of freaked me out. But I really did think about it. And I was like, you know what, like, I just needed like two seconds to really get myself together and think about the implications and the ramifications of it for everybody and for me and for the play. You know, but it's kind of a drag because if you don't have pro bono representation and you're a playwright, you know, I would never make from this play a fraction of what the legal costs were ever if I won, you know? So it's sort of like, you know what I mean? It's a hard thing for a playwright to know how to deal with this if you don't have a firestorm around you, you know? I think something else to be aware of and I tell this to my clients all the time, you know, whether they're pro bono or not, right? Get past the hurdle, right? You can't pass the hurdle and say, okay, this case is worth me spending money on or worth me securing pro bono counsel for. But how much of your life did it occupy? It actually, I thought it was gonna be much more draining. Yeah. I mean, especially when the first thing, when it all erupted in the press and everything, I thought, oh my God, this is gonna like, it was taking up a lot of bandwidth of my brain and I was like, I can't only, I need to write other things. I don't want to just be fine. I don't want to only be affiliated with like this company my whole life. You know what I mean? I was like, that's not really like my, you know, it's not good trade. But I, you know, in the end, it actually was kind of, I also like imagined, you know, like I've Jody Foster in the accused, I'll be honest, you know what I mean? I was like, what if he don't know? I remember when we went that first meeting with David's right, true mate, you know, they have this absolutely massive, gorgeous conference room atop this gigantic skyscraper on 50th Street and we were sitting at this, you know, unbelievably long conference table and they were preparing you for any number of different. They could go into their lives, they could act in a general position, you know, it was like so, it was just like, I mean, the potential could have been, I think, much more. And had we lost this summary, as I was called, the first thing that we asked Mark, I can't remember. But if we had lost that, I think they could have had discovery, which made them, and then they could have, you know, put me down at the depositions and where were you and why'd you do this and show your emails and all that stuff, which, you know, that would have been a drag, had we had to have done that and the judge rejected that. So because of, you know, the way things were, we were able to sort of skirt through it and get out of it and it was not so bad, they just exchanged a bunch of really hilarious briefs. I think the biggest step, the one that was sort of the most inducing was the first one, which was to go ahead and file it. Yeah. That was the thing that was, are we going to do this when we take the office? We had to be the aggressors, so to speak, because they wouldn't sue, so I was like, they were like, you have to do it to get them to sue. And I was like, all right, I guess we'll do it, you know? So. That was the big moment, Debra. Are we doing this? We're doing this. Yeah. There's a number of ways that court could have disposed of the case. You could have gone to trial and gone through that whole process. You could have settled the case prior to the trial. You can, or the court could have decided the case on summary judgment. That is, after looking at all the pleadings and then all the discovery goes on, and then there's a motion saying, just based on all this discovery, you have enough information court to come to a conclusion. This court had a judgment on the pleadings themselves and said, we don't even need to go to somebody. We don't need to go to discovery. The pleadings themselves give us all the information we need to decide this case. And so it was like a complete slam dunk at the end of the day, but it didn't feel like that when you started this trip. No, it could have gone anyway. I mean, you know, we talked about this earlier. It could have just gone in any direction. The first just that we have was it was a different judge. And who knows? I mean, if it was that judge duplicating it, it would maybe turn out different. You don't know? And that's a truly terrifying part of this process. You have to realize, if you're talking about fair use, that means you're in court and you're pleading in affirmative defense. You don't want to be there if you can possibly avoid that. So let's talk about steps that writers can take to avoid that or to deal with it if it does come. Can we talk about, you know, vetting a script? Can we talk? I mean, I believe in Mars, you guys do readings of scripts to determine if there are issues? Yeah, I mean, the process of submitting a play to producers or nonprofit institutions or whomever, I mean, obviously we read the play before we figure out who it is we're going to send it out to and where it makes the most sense. You know, as I was saying to you before we started this conversation today, this has not come up a ton in our office in the last five or so years. The more pertinent thing is what you were talking about earlier about de minimis use. That's the thing that comes across our desk's most frequently is if someone wants to quote a line from a movie or if someone wants to use an excerpt of a song or something like that, generally that's the stuff that we'll end up getting into the nitty gritty on, but in terms of broad issues like David's where we're talking about the entire concept of a play being rooted in an existing material, that's not something we deal with all that often. It's more about figuring out, like you were saying earlier, is it one line? Is it 300 words? Is it something like that? The most regular occurrence in our daily practice is music use. We're finding a sizable chunk of scripts that come across our desk, want to use whether it's a Gershwin song or a Rodgers and Hammerstein song or rap lyrics or whatever it is. That's where it gets a little bit tricky. Generally speaking, when you go ahead to that first production, the theater usually takes care of those clearances. And so there's not a whole lot to worry about. It's when you get into stock and amateur licensing. It's when it gets a little bit trickier and figuring out, can the playwright live without the use of something? Generally speaking, the easy bandage is a song like So-and-so. Just as a matter of advice for your practice of playwrights, if you write a stage direction in your play that says, and then the song Born to Run comes on radio in the background, the producer's going to make you pay for that because it's part of your play. But if you write a stage direction that says, and then a song like Born to Run comes on the radio, well, you have to be prepared to have a song by yourself, like Johnny or any of the producers or something. But one of the things that we do when we are going through contracts is that if someone is really adamant about, I had a client use a theme from a film, a very notable theme from the film. And we were doing the world premiere contract. One of the things that we put in, the re-identification language was literally except the use of this theme, saying that we're making it the hitter's problem as opposed to putting the artist on the artist. Which is, again, it's a band-aid situation because when it comes, in the case of David's play, to the future life of the play, which is where usually playwrights make the bulk of their income off of plays, that's where it gets trickier. So if you put that like word in, then it becomes like a scenic design or a lighting instruction or any other stage direction that the producer has to pay for. You just have to be willing to not have born to run. If that's absolutely fundamentally critical, then you're making it part of your play and you're gonna probably need to license that. The other question that we come across a lot is people wanting to write about famous figures. That can be tricky. If you wanna write a play about Barack Obama, that's one thing. It's when you start writing about his mother or you start writing about a coach of his in high school or something like that. That's where it starts to get murkier. Yeah, we have a series of articles, you guys can look online called The Real Person in Your Play. It deals with issues of privacy and rights of publicity and defamation and all of those things. Fair use is not within that topic, so we're not gonna focus on that tonight, but it's out there for you and if you have questions about that, the answers are on materials. But you did mention indemnity. Is that one way to contract that you can protect yourself? Very often, let's say a producer says, I want you to do a play for me about Barack Obama. What kind of protection should the playwright have in that contract? I think the producer should assume all responsibility contractually for anything that could potentially come up to the use of Barack Obama, any of his affiliates and anyone connected to him in his life, particularly if the producer's coming to you with the idea. If it's material that our president cannot be, I shouldn't say this, generally speaking, copyright our president, right? But if someone's coming to you and saying, I would like you to generate original artistic material in and around this, then they need to be prepared contractually to cover all of your bases. I would never let a client get into a commission agreement like that if the producer wasn't willing to assume those responsibilities. And that's just the contract 101, really. Yeah, I mean, I think part of that gets into the Jersey Boys situation. I don't know how much, because that's an ongoing thing. Can't talk much about it, but in general terms, well, do you have anything you can... Yeah, well, I could say anything I want about it. I don't know anything. But in the Jersey Boys, well, the one I was gonna talk about actually was the Ed Sullivan clip. Oh, okay. Which was a good example here. Maybe that just dodges the bullet a little bit. But in the Play Jersey Boys, when it first came out, and probably still, there is a seven second clip of Ed Sullivan introducing the group before they resume the play, et cetera. And what's amazing is, and this went all the way up to the Ninth Circuit Court of Appeals in California, fighting about that seven second clip and fighting about whether the seven second clip, which was exactly the same clip that was on TV, was transformed or not. Obviously the clip wasn't changed, so it wasn't transformed in that sense. But, and also de minimis comes up, right? You took seven seconds of Ed Sullivan, but the argument was that you took the heart of Ed Sullivan, that the heart of the Ed Sullivan show is Ed Sullivan introducing the acts, where in the counter argument was, no, no, it's just informational. He was telling you who the next act is. There's nothing, there's nothing protectable about that. And amazingly, the court said that the play, first of all, they granted the fair use defense and they upheld the attorney's fees against the plaintiff because the plaintiff had tried something similar in an Elvis case. But amazingly to me, the court said that they imbued it with new meaning. So not only is the court able to say these seven seconds didn't harm the original, but the court is also able to say, just in seven seconds, you imbued it with new meaning. Just by putting it up on the screen, using it as an informational cue in the play as opposed to what the original purpose was. And I just thought that was a very interesting thing to say there. In terms of Jersey boys, I guess you're talking about their current controversy, especially now that it's so popular. Yeah. There's more issues about, anytime there's material presented by a producer for you with that, that producer should be taking on all the obligations and indemnifying the claim that arise from those mistakes. The other thing just jumping off of that is very practically speaking is it's your right to ask for a copy of the underlying rights agreement. A lot of people don't do that, but that's important is making sure that the producer actually has all the rights that he claims, he or she claims that he or she's obtained. And asking from the production council for a copy of that agreement is well within your rights. Yeah, because an indemnity isn't worth very much if the party doesn't have the money to identify it. Right. And some producers have to talk a good game, but don't have actually the resources to live up to their promises. And if they don't actually have the rights that they're asking you with that, you're gonna get sued too. And the indemnity is all well and good, but it may not be worth doing that. If incorporating existing material as integral to your player, to your musical, it's worth attempting into contracting the issue. And not all producers will do this to get the producer to assume as much responsibility as humanly possible. And another thing is insurance, right? It's called E&O insurance. Anybody talk of what that is? Errors and omissions are insurance. But I could speak to it, but okay. It's errors and omissions insurance, which would be an extra policy that covers you from these sorts of problems, things you wouldn't necessarily be able to specify. But when something happened where somebody has left something there, it made a mistake or left something out, errors or omissions, usually in the area of not securing your rights, then you'd have insurance, an insurance buffer to help cover that sort of thing. Now that kind of insurance is very expensive. And sometimes it's hard to obtain. But I've seen a lot of contract more and more where authors are asking to be named as additional insurer under those kind of policies when the producer is taking out that kind of insurance. So that's another thing to be aware of as a way of protecting yourself in this area. And I was gonna say also on Jersey Boys, I mean, just to make things even more complicated, again, that's an example of semi-biographical adaptation. So not only do you have a fight about if you have the rights to adapt it into each iteration, but how much of it is protectable in the first place since it's actually about real people. So that just makes everything even messier. Closed back to that issue, I said where facts are not copyrightable and I can't own the facts. In the case I was talking about, they actually said it boiled down to Ed Sullivan's charisma and the court says charisma is not copyrightable. And sometimes it's utterly absent. In 3C, so the court found for David that the work was protected parity and transformative. And therefore not mainstream. And I think that's where the case is now that we do some other activities going on regarding appeals or whatever, but that's the situation in the case at this point. And what are you guys doing with the play at this point? Do you have a publishing deal? The good news is TCG will be publishing it, Samuel French will be publishing it and we should be good to go with theaters across the country and across the world to increase in it, which is great. Thank you. Thank you. Did anybody else have anything they wanted to add? Well, I can just throw in, from a legal perspective, I'll tell you just from reading the decision, the things that jumped out of me if I'm trying to get in the head of the judge about what was important to the judge. And David, you might have different ideas since it was a lot closer to it. But number one was the fact that tone was changed, right? It's the same setup, the same set apparently, it's the same setup, except the entire tone was changed. And there are excerpts in there that show how, and then it's very amusing, the judge summarizes eight different episodes of Reese's Company in the opinion, and those are just a fun read. It really went to task. Well, because I think they had pointed out eight episodes as having elements that were... Because they were literally like, I mean, it was like at one point, I remember the line, Edge sent me a brief, my lawyer says something like, cooking of an onion is not evidence, cannot be copyrighted or something. It was like they were really, really retried. We were just saying before we came out, one of my favorite things in the initial David's Writing complaint was he lets out an existential howl at the void, is one of the ended stage directions. It's something like that. And then the following line is just, that never happened in Reese's Company. But I think the two things that were most salient to the judge were number one, the entire tone was changed, right? It was, while I'm sure there are funny and happy moments to it, maybe. The judge, in describing it, it presents a much darker story, much darker tone, even though it's the same setup. That was number one. And number two, and perhaps most importantly, the male roommate, the Jack Tripper character was not named Jack Tripper in your play, while in three's company was pretending to be gay, actually turns out to be gay in the play. Sorry, spoiler alert. It's in the opinion. And for that, I think the judge also said that that was a major twist on the original. And if you're a fan of the original, as we all are, you need to know about the, I'm sorry, did you know the original? No, I thought you were changing your head. But in order for the parody or the satire, whatever we wanna call it, to work, you have to be invested in the original story, which is the male roommate is pretending to be gay in order to be, to live in that apartment. And the twist on it here is that he actually turns out to be gay and that brings out the social commentary. And I think those two things, just the overall tone and that very specific point to me in reading the opinion were the most salient parts that helped get you where you needed to go. So those are my thoughts, that's my thought there. Also, you mentioned the word heart before. There's a line in there where the judge says that David appropriated not just the heart, but also all of the appendages. And that factor weighed against him because of how much he took, but it was overwhelmed by the other factors, which that should be fair. And that goes back to this four factor test. No one factor is meant to be dispositive. We're also not an exhaustive list. They all call the four factors, but it says factors including, doesn't say only these factors. So as a result, the test about transformative views, has become sort of a predominant mode in which these cases are discussed. Can you talk a little bit about that, the rise of transformative views? Sure, sure, and there's a lot of debate about this in legal nerd circles, but there are arguments to be made that transformative, the word transformative is not in the copyright act, but it was introduced by the Supreme Court as a way of understanding the first factor in a particular case, but you don't need to have it in order to find fair use or you could have something as transformative and still have it not be fair. A recent example, there's a big case going on involving Google Books, where Google has decided to roll machines into eight major university libraries and scan all the books and all the collections to make an online database of books. That is infringing all of your copyrights in the book. Right, so, and that case has been going on for years now, and right now it's up on appeal, but the judges in those cases, and there are several that have sort of been bundled up, so far have found that what Google did was fair on the general theory that they transformed the books from books into a search engine, into a searchable database, and that's very controversial, and I personally think questionable. I've written amicus briefs on the other side against Google. I think it's a question about whether that lives up to the transformative test that Supreme Court said, and there are a lot of reasons about that, but within that there is one amazing line and one of the earlier opinions, because the two main arguments on Google's side was the search engine argument and also that it expanded the audience for books because it allowed Google to take these printed books where people with vision problems or blind people, by turning them to a database, you could then make them accessible to people. But amazingly, one of the courts said that it was transformative because the provision of access for them, meaning for print disabled persons, the provision of access for them was not the intended use of the original work, which was enjoyment and use by sighted persons, and therefore the use was transformative. So the idea of translating a book for the blind transforms it. I personally think that that leak was off, was off base. This is a technical term for that. Hooly. And I think a simple counterpoint to that, which I put in my brief was that you cannot translate a book from English to Spanish and call it transformative and then sell the Spanish copy, even though every word is different than, and even more so, but that is still a derivative work and you can talk about this as well. One of the rights of copyright owners under the Copyright Act is the right to make derivative works, the right to make new things derived from your own. And there's some invisible line that we don't know exactly where it is between the copyright owners' absolute right to make derivative works and the appropriator's right to make fair use works because at some point you cross over the line from being a derivation to being a commentary and case by case, we're not quite sure where it is. If I could, the two examples, two examples, there are many that jump out, is there, and both of these decisions are cited in your decision, that there was a book written called The Wind Done Gone, which was a takeoff on Gone with the Wind, which was still under copyright. And ultimately the appeals court said that that was fair. That book was written, it was the same series of events that happened in Gone with the Wind, but told from the perspective of one of the slave characters in the book and therefore the court found that that was fair because it changed it and it provided social commentary and it commented back on the original. Somewhat more recently, somebody wrote a sequel to Catcher and the Rye, called Coming Through the Rye 60 Years Later, which was a 60 year later sequel to Catcher and the Rye with the same characters, but an entirely new plot and new things happened. And the courts there ultimately said that was not fair because all you've done is written a sequel to the original work and the author's arguments that he was commenting on the original and deconstructing the original ultimately fell at deaf ears with the court and the court said that the right to write sequels is the absolute right of JD Salinger who was refusing to write sequels and refusing to license sequels and he went to his grave in the middle of this case in fact, never allowing it. And so therefore they said that it's his right not to have sequels to his book. And it's a very fine line to say that that was a sequel versus and therefore not allowed, therefore the revered court versus the wind ungone was a fair use commentary on the original work as well. So if you switch the judges on those cases, do you think the results would change? I think all I can say is it's entirely possible but they would have changed. I think if you could change the judges, you could change the court in which the cases get brought because courts in New York very often think very differently than courts in California as you might imagine and but again, every judges are people and they come to these situations with their own preconceived notions and their own experience and their own background. Sorry, I think we're all driving toward a very similar point which is all we can do for you today is sensitize you to some of the issues but we certainly can't certainly in the abstract we can't tell you oh, there's a 300 word rule, right? That's not gonna work and even in any particular case and this might go down to the practice points later, in any particular case if you take your situation to a lawyer and the lawyer tells you absolutely you're gonna win or absolutely you're gonna lose. Get a new lawyer. Because nobody knows and it's not because you're right or you're wrong or you have the facts and you have the law on your side it's because you just never know where it's gonna end up in front of whom it's going to end up and how it's gonna play out and the best you could do is just arm yourself as best as possible on the way in. With that I think, well I did wanna just address one side issue which is the notion of trademark, fair use of trademark. My assistant David Bowe has done a little bit of reading for this question and I just wanted David to just say what is the current standard when people wanna use a trademark in their play? Is there a fair use to use it in sort of what context? Well when Ralph first asked me to look up what the status is for fair use of a trademark there's one easy test, there's nominative fair use which means if you have a play and you and the character grabs a Snickers from the refrigerator or something, Snickers can't sue you, it's just part of the culture that we live in or they can't sue you. Unlikely to succeed, very unlikely to succeed. They would lose more than they would gain by applying that suit. So that's called nominative fair use, you're just naming something, you're using the trademark as a shortcut for this source of this good which is how trademarks are intended. Other than that, a fair use, Ralph followed it up with a question, what if you wanted to comment on something? What if you wanted to comment on the Girl Scouts of America? So you're using Girl Scouts of America in your play and I said, well, the Girl Scouts of America would sue and whoever the playwright is would fold under the pressure and he said, no, no, billionaires on both sides, theoretically, who would win the lawsuit? So theoretically, you're allowed to use, there is a fair use exception for commentary with trademarks and you can comment on Walmart, you can comment on Girl Scouts of America. Where you would get into trademark trouble is in merchandising, you couldn't sell a souvenir program with the Walmart logo on it that says, you know, if the name of your play is Walmart sucks and you're using the Walmart logo, that would be terrible, but that's if billionaires are on both sides of the equation and that's the status of fair use of trade. This came up in my office today, actually. A client wanted to write a play or is working on a play right now set in a very famous fast food chain and it's currently set in there, a lot of crazy things go down in this one particular franchise and so that's what we were talking about today is is it worth using the name of this big fast food chain or is it worth just generalizing, can you call it burger heaven? That is, I think, a chain and can you call it, I don't know, or pizza and porium, whatever you want. Is your client a billionaire? My client is not a billionaire, my client's a very young playwright. And ultimately, my advice to him in this case was if you can live with it otherwise, just avoid the risk. If it's not going to fundamentally alter the intrinsic qualities of your play, it's better to steer clear of it. I'm a modelist. If you have a question. Yeah, we're about, I'm gonna throw it out, I'm throwing, we're at the question and answer period, so unless anybody else wanted to throw anything out before. Well, I'd had one more thing just to throw in and there's not enough time to go into details about this. But, and I was saying before that different courts approach these things differently. In the second circuit, which is the Court of Appeals that takes federal cases from the New York area and several surrounding states, and it's where the Google Books case is happening as well, there's a lot of uncertainty about transformed abuse. And one example came up in an arts case called Carrie View Prince, where a photographer had a book of photographs of Rastafarian people and the painter, the artist, appropriated the photographs and made a series of paintings where the photographs or pieces of the photographs were in the work, some series of 30 paintings and in different paintings, he did different things to the underlying photographs, some more than others, every painting was different, obviously, but they followed the same theme. And when that went up to the Second Circuit Court of Appeals, the court said that 25 out of 30 were fair, but five, they sent back to the district court, to the lower court, for that court to determine if those last five were fair. But in doing so, did not give a bright line test, did not say, okay, if they made these many changes, then it's okay. And what was amazing to me was that you get, I have to quote here somewhere, you get very, very esteemed judges, multiple judges on this court, saying things like that 25 were fair, five were not enough, quote, for us confidently to make a determination, and later they say we cannot say for sure. So if the judges on the appeals court cannot confidently make a determination, it begs the question of whether this sole judge they sent it back to was gonna be able to make a determination. And then more importantly, I think for all of you, how do you make the determination? How do you figure out which side each of these things falls on? In addition, there's this other brewing issue that came out in this case about, when you are talking about fair use, when you are talking about commentary, what is the source of that commentary, right? So David clearly had a message that he was trying to convey. We talked a little bit before about who are you commenting upon and who are you commenting through. But in this particular case, the court was saying, the court noted that the artist there said I didn't have a message, right? He was not coached properly by his attorney. He said, he said I did not have a message. That's a good argument. And the court said, right, the court said even though he said under oath he did not have a message, that doesn't matter because it's not about what the artist meant. It's about what it is, right? So it says how the work in question appears to the reasonable observer. That's the quote. Raises all sorts of new questions. Who's the reasonable observer? What are you doing in that situation? But what the court there said was that it doesn't matter what the artist intended because, and it works both ways. If the artist intended a message, but did a poor job of it in the eyes of the court or the reasonable observer, then this says that he's not going to get a fair use defense. Or alternatively, if he really didn't have a message and just through paint against a screen, but the observer would see a message in that, then maybe he will get a fair use defense. So it's really interesting and fascinating to me, especially when advising people at the get-go, right, what do you do? My advice certainly is know what your message is and think about that. And when red flags go off, don't keep it to yourself. Make sure you talk to somebody that you trust about it, whether it's your agent, whether it's an attorney, whether it's the guild, don't keep it to yourself because if you're thinking of it, then certainly someone else is going to think of it down the road. And 99 seat theaters are on the internet and therefore discoverable by all. It's all fair game. It's all fair game. Oh, and don't use the internet. So on that, I'll throw it open to questions and you had one on trademark. Yeah, I just wanted to add to your clarity differential mattered on trademarks as much as it does for say, you know, a pre-existing television show. I don't know for certain, but it certainly tracks that way that if you're incorporating the Walmart trademark to make fun of Burger King, then Walmart, I don't know if it, out of actually it might not. It's unparalleled, there's a lack of parallel. You have to understand trademark and copyright have very different purposes. And so the tests around them can be quite different. I had actually two questions. One about the song that like the song. Okay, could you say like the song for the stage directions but still use the actual song? Sure, yeah. But then it's who pays for the song. And then it's who pays for the song. The producer pays for it in that case. I just wanted to true that up. Okay, the second part is visuals and I'm glad you started to bring that up at the end. You wanted to use paintings. They can, let's say it's a European country that owns the paintings or houses the paintings in the museum, but they've circulated the paintings. There are images of the paintings on an internet site. Are you able to use that without securing copyright? So it would depend on a lot of things. But let's assume the paintings, let's assume it's the Mona Lisa. And the Mona Lisa is no longer under copyright, I'm pretty sure. Even though we have a very long copyright period these days, I think it's out of copyright. But the question is who took the photograph of the Mona Lisa that you're using, right? Because if you're using someone else's photograph of the Mona Lisa, arguably that person has rights in the photograph. They might have very thin rights because all it is is a photograph of the Mona Lisa, but maybe they had, maybe they set up the lighting, maybe they took it from a particular angle. So you wanna be careful there as well. I haven't got any images. Right, right, I have a client, I have a client who's in the vacuum cleaner business and he got a letter saying that he had used a photo of dust mites that was under copyright and they're threatening to sue him. And it was one of these houses that just catalogs all these works and I looked it up and yes, they had actually registered an electron microscope photo of dust mites and he had gone on the internet and found a picture of dust mites and said, I'm sure it's fine to use a picture of dust mites and he put it in, but it wasn't. So these things happen. So on that point, you should check who owns the photograph. But if it's a specific artist, not well known, like Da Vinci, okay, whose works have been out in limited ways and the original works are only in a state, in a museum. And then another museum here in the states that showed the artist's work had pictures on the internet to promote and exhibit that person's work. Right, so if you're getting to, if the work itself is under copyright, and we can talk more about this after and I don't want to take the whole thing, but if the work itself is under copyright, if it's a new work, right, then the artist or the owner of the copyright in the work itself is also might have something to say and it may depend on how you use it, right? If it's an incidental background use, you might get away with it, but there's a string of cases that says if you have a poster on the wall in the background, a stage setting, a stage dress and you don't clear it, you don't pay for it, you might be in trouble. So, and you can probably touch this as well, but we're transparent. The only thing I can think of just in terms of what your time would be with what John Logan did with red, which I do not know the answer to that, do you? I do not. That was John Logan's play about. But I still don't play. I don't, we don't represent John, I don't know how that happened. But you also, just a side note, there's a difference between owning the painting and owning the copyright in the image. You can, you know, the artist sells the physical property and you own the physical property, but you can't make posters of it and sell it because the artist still owns the copyright in that image. Even if you own the painting. In this case, the artist is dead. I didn't see a state. Right, right, still live, so I was close, 70. It does tie into a bigger point though that I recommend to anybody here, which is if you're going to use existing material, beginning the rights clearance search as early as humanly possible is just, I mean, that's best practice. There's no question. The minute that a client sends me a play before we know where it's gonna get produced or who's going to pick it up, generally that's an investigation that begins whether it's a music publisher or an estate or whatever it is, doing that kind of research from the get-go can save a lot of headaches later. And the thing you really want to avoid is retroactive compensation. That's the worst. Because once something's taken off and it's a proven commercial success, then you're coming back and asking for a chunk of it. And for a playwright, that can be a lot of money, particularly if something's taken off and started an amateur license. But you know, my lawyer has told me, like it's really good that you didn't ask for permission, because they kept saying, why didn't you ask for permission? But if it's fair use, don't have to ask for permission. And if you ask for permission, you're basically conceding on some level, oh, I don't think this is fair use, and that can really work against you as well. So it's really, I mean, yeah, this is life. As a legal, no, I think as a legal matter, I mean, I think the advice was practical in the sense that asking simply puts you on their radar. Asking doesn't create liability if there was no liability to begin with. If it was a fair use, it's still a fair use. So there is, asking itself doesn't create the liability. I think the, if there's any firm line in the center drops, if you are, if it's different from what David did, which is setting up an entire play in a universe, based off of a universe or, let's say, inspired by a universe that already existed, as opposed to including a painting or including a song or including Walmart, I think there's a distinction there, which is if you're talking about specific, you know, let's say less substantial inclusions, those are things that you want to get into. That's where you really begin the hunt for who do I need to track down and doing it as soon as humanly possible. And having an agent that tries to get it pretty soon to take all the responsibility for it. I've written and adapted five plays on John and Abigail Adams and stupidly signed a contract with Harvard University Press who insisted with the contract that I would have to have end notes of every quote in my play. And now I'm about to, I want to send this to be published. And it's perfectly ridiculous. You know, looking at Bill of Amherst who had a Harvard University copyright, it's ridiculous, no producer is going to have all of the end notes in their copy of the script. Is it possible or probable that I can change that stupid contract? Well, contract, whether or not the obligation is a sensible one, is an issue you should have addressed when you were given the contract. Now that you've signed it, you need to ask an attorney to give you a legal opinion about voiding it or finding other ways to amend it. But I can't address specific legal issues about your contract once it's been signed. I wrote about a historical character and I have about maybe 30 quotes. Some of them might be phrases that I've taken from his wife's diaries. They're not published, but they're quoted in the play. Could I possibly, if I was looking to get permission, I mean, I think I've been told maybe I should try and get permission. Can sometimes they just give it to you or is it probable I'll have to pay? Sometimes they can. It depends. Sometimes the underlying rights holder can be excited about the promulgation of the word. I mean, Anne Washburn's play, Mr. Burns, I thought was absolutely fascinating that the folks from The Simpsons loved it. And they actually referenced it on their lesson. I mean, that to me was, I thought that was extraordinary. So there can be happy endings. Yes, it's just, I think the thrust of this conversation is preparing yourself for the worst case scenario. But yes, if there's one biographer who had access to this and he or she's the primary source of, this primary source information, they might be enthusiastic about it so long as they're properly credited for having found it. There's also a lot of the issue about the right publicity of the wife. Yeah, there are a lot of things. Who's not a public figure. I think whoever owns the diary, I think the permission from right now is the biographer. Probably, yeah, go to the legal source. If you're quoting the diary, it's not. Of course, the diary's just found into the biography, but... Have you read the diaries in the primary source? No, I haven't. Okay, so you're assuming... Where are the diaries located? I think the witness has been... That's funny. That's an attorney question. By the way, none of us are giving legal... Or agency advice. We just play lawyers on television. So you said you would not name the black same names? None of the... I changed all of their names. So is that kind of like a... I noticed that there are no black and white rules. I've heard, like, don't use the same names, and I've also heard, put parody in the... Like the word parody in the description of your show. Does that help you at all, or...? Doesn't hurt. Doesn't hurt. And then you should always change the names or can you ever get away with using the same names? Arguably, in your case... In your case, you probably could have used the same names, but you chose... Well, I remember there was a play called Dog Sees God, which was a play that was a deconstruction... Very dark deconstruction of Charlie Brown and the Peanuts. And they did... He did change... And I was in touch with that playwright when this was all going down. And he did change the names. And I think he did work something out eventually. He figured it out with, you know, the... Sure, sure. Yeah, they figured it out. That didn't go to court or anything. But that also was like a way for me to just be like, okay, let me see if I can... I mean, it was torn between pulling away from the whole three-scope thing or trying to like hue to it, you know what I mean? And I think it depends also largely on artistic intent. I mean, there's a big difference between what David was doing with 3C. What's the name of the 50 Shades? It's called 50 Shades, the unauthorized parody or something, or when they did the two-man Harry Potter thing, Potted Potter, unauthorized. Right, they did the names. That's calling attention to the fact that... This is a parody, this is... I mean, my play was a very... I didn't realize that it could meet the standards of parody and be so bleak, because my play is really dork. It's not... I mean, it's about comedy, but it's not really funny. You know? Doesn't it look like black in there without using me or not using me? There's none, but I mean, the place your question is coming from, if you really sort of play it out, is that you're imagining yourself defending your play in court, right? Down the road. And you want to have as many facts on your side, and you want to be able to say, I took the absolute minimum that I needed to get my point across, right? And I didn't need the names, so I didn't take the names. David felt he didn't need the names, but he needed the set, right? And he took the set. A judge could have gone... So the director actually took the set. The director took the set. Sorry, somebody took the set. The director took the set. I apologize, I didn't need the set. The stage directions and the... Anyway, the point is, they took the set, they didn't take the names, right? David took the existential howl. I took the existential howl. And they took the fact that there's two women and a man living together. I mean, there's a wacky neighbor, I believe, who's a dark wacky neighbor. And then the landlord, right? You went with the roper, it's not Mr. Furley, right? Yeah, I wanted to go with the origin. Yeah, the original origin. Yeah. And any of that. But, you know, at some point, and the judge essentially did this in coming to the decision that she did, right? She decided that it was fair because of the message you were trying to convey, and that you had appropriated enough to get the message across, but not too much that it supplanted originally, right? It's also gonna be worth it to do a little bit of research too. I mean, simple Google search is just about history of the underlying rights holders can be helpful. As some people who control hugely culturally significant entities are more litigious than others, and are historically so. And so it can be worth your while just to investigate if someone historically is inclined to enter into it. A question about songwriting. You said there are no rules, 300 out of 500. Number of bars. Right. It doesn't matter. Songwriting, it said maybe if you use three notes. No. I'm gonna use this. No. Well, we go to the first principle, which is anybody can sue you at any time. Okay. Okay. For anything. I worked on a show where we wanted to use, the producer wanted to use the happy birthday song. No. At the time, people thought it was owned by these two little old ladies in Chapel Hill or something. And, but we, you know, they're just saying, we weren't even singing the whole song. Happy birthday to you, happy birthday to you. And not even the second, but we said, isn't that, I mean, that's the minimum. It is hardly, that's 50% of the song they said. So, number of bars is contextual. Is it, if it says, if it's six bars long. Well, the first, well, the first thing to realize, which most people don't, is that, that song is under copyright. That was copyrighted in the first place and it remains under copyright. There's some dispute about that. There is an ongoing dispute about that as my client Warner Music believes that it's under copyright. Okay. Wow. I touched an error. It's okay. But at that time, they're obviously to say it's not. And there's a dispute within the case about the lyrics versus the music, versus the different versions of the song and the sheet music. It's very interesting. But at that time, we thought, we definitely understood it. We didn't realize it was under a copyright and we were told by our attorneys, oh, that's, we thought that was long public domain. I know that the claim was at the time that it was, so we approached them and they wanted some obscene amount of money for two lines of a four line song. And so the writers wrote their own happy birthday song. And didn't make a wit of difference. The show lost six, 12 million dollars. I've been to restaurants that have their own happy birthday songs. There you go. Probably because of this very reason. Yeah. Yeah. Can you speak a little bit about public domain work? The public domain is the reason that copyright law exists. Copyright law was created not to give a class or to give market power to a particular class of bright artists or corporations. It was created as an incentive mechanism to create works that would eventually become available to everyone. The point of copyright is public domain, eventually. So the period of copyright duration has evolved over the years since the original acts. It is now life of the author plus 70 years, which is consistent with European law in this area. Basically, every time Mickey Mouse becomes getting close to public domain, Disney writes a new law that the Congress passes. And they extend the Copyright Act. The last one was the sunny bono copyright extension of 20 years. It used to be life plus 50, so now it's life plus 70. The problem with that is, and you would think as copyright owners, you guys should all be in favor of longer and longer protection of your property, which is theoretically great. The problem is it creates a diminishment of the public domain. You have less work on which to draw to adapt your work. Much of theater, especially in musical theater, but even in dramatic writing, is adapted from works that have pre-existed, that have influenced current work. And as the public domain dries up, this is bad for artists. It's not good for artists. So what's good for Disney isn't necessarily good for you. The irony, of course, being that Disney made its empire, adapting public domain fairytales, and now wants to close the door behind them. You're covered in most standard playwriting and production contracts by that. Generally speaking, in the representations and warranties section of the contract, it will say, I say, I represent a warrant that everything here is original by me, excluding material in the public domain, is almost always the parenthetical you see. You don't have to warrant about public domain, too. How do you find out if something is in the public domain? The Library of Congress Copyright Office will, you can do a copyright search fairly economically. Basically, the rule of thumb in America at this point is anything before 1923 is in the public domain. Stuff since 23 may be in the public domain if certain technicalities and procedure formalities weren't adhered to. In the old days, you used to have to put a little C on it, and you used to have to register. There were formal things you needed to do to maintain it, otherwise it fell into the public domain. Since the 76 Act, there are no formalities. You have a copyright the day you wrote it down. You're still recommended to register your copyright with the Copyright Office, because that's the only way you can actually defend your copyright. And there are other benefits to registration, which is very useful to you. So, but right now it's life plus 70, except it works prior to 23 or in the public domain in America. The only catch that comes up sometimes is if a studio, a film studio, has done a public domain story, and then you go to reference components of the story. You've got to be careful. That, you know, basically, they're all in my studio. That someone invented a character that we think is part of the original myth, but really, it was vis-a-vis Warner Brothers or Disney or Universal or whoever. And that, you can get murky there. And that's the recent Sherlock Holmes cases. I mean, Sherlock Holmes fell into the public domain, certain of the early stories did, but not some of the later stories. And if you want to do a Sherlock Holmes story, theoretically you can do one. But you better not take any aspects of Sherlock that were only created later. And the estate is vigilant. Vigilant. Any more questions? I think we stunned them into silence. I think the heat has stunned them in silence. It's seven o'clock, so actually this is perfect time for your installations on your career. Thank you. Thank you. But I think a victory for one is like a victory for all. And on that joyous note, thank you for coming. And thank you to our panel. Thank you for what I was doing. I'm working with an historical.