Erickson v. Trinity Theatre, Inc.

Facts

P was one of the founders of Trinity Theatre. Between 1981 and January 1991, P served as playwright, artistic director, actress, play director, business manager, and member of the board of directors. At issue are the rights to three plays: Much Ado About Shakespeare (Much Ado); The Theatre Time Machine (Time Machine); and Prairie Voices: Tales from Illinois (Prairie Voices). P’s creative method for Much Ado was to conduct improvisational sessions with Theatre actors. The editing of the text was accomplished largely by consensus; however, when a consensus could not be had, P made the final decisions. Time Machine’s creation began in 1977 when P was in school when P the Greek-style drama scene. While teaching high school drama, she wrote the second scene based on commedia dell'arte. She also began work on the melodrama and improvisational scenes of the play at that time. P started producing the play independently of Trinity in 1984 with two other actors, Paddy Lynn and Will Clinger. P claimed that she worked to develop the scenes alone; however, the evidence shows that the actors were involved in the development of the melodrama and improvisational scenes. Lynn described the development of the improvisational scene in Time Machine as a collaborative effort. Lynn conceded that P took all of the notes from rehearsals and compiled them into the script; furthermore, nothing was included in the script without P’s approval. Initially, P attributed the script to both herself and Lynn. Lynn also received royalties for performances of the play. P denied that she ever intended to include Lynn as a joint author. She conceded that Lynn was credited on publicity materials as an author but denied that she approved such credit. The later change in attribution, P claims, merely corrected the initial error. In 1990, P developed Prairie Voices. None of the actors initiated writing a script and the play, as it resulted, was based entirely on tales provided by P. P worked with the actors in the improvisational format. P admitted that the actors provided ideas for the dialogue. Another actor, Ruth Ann Weyna, testified that the writing of the play was a creative process involving a number of actors. However, she conceded that P controlled what eventually was put in the script. In 1987, D began paying P royalties for the performances of her plays. On July 5, 1988, P entered into a two-year licensing agreement with D that designated her as a 'playwright' entitling her to royalties for performances of two of her plays, Much Ado, and Time Machine. Trinity continued to pay P royalties after the expiration of the licensing agreement. Trinity discontinued making royalty payments on November 15, 1990. D also paid royalties on Prairie Voices. In July 1988, P signed an actor’s agreement which stated: 'The actor expressly agrees that D reserves the rights to any recording, audio, video or both of the Production . . . .' The contract covered the tour which was forecast to run through June 30, 1989. P left Trinity Theatre in January 1991. She then applied for and was issued copyright registration for Much Ado and Prairie Voices. She received registration for the video productions of Time Machine, taped in October 1989, and Prairie Voices, taped in November 1990. P obtained a copyright certificate for Time Machine on September 12, 1988. On January 21, 1991, P demanded that D discontinue performing P’s plays. D refused. P sued Ds seeking injunctive and legal relief in which she alleged copyright infringement, unfair competition, and other related tortious activity. Some issues were settled. Before the court for P’s motion for preliminary injunction were Time Machine, Much Ado, and Prairie Voices, as well as videotapes of Time Machine and Prairie Voices. The magistrate judge had to establish the appropriate test for determining whether a work has been prepared as a 'joint work' within the meaning of § 101. D maintained that the standard for determining a joint work is 'collaboration alone.” P. contended that the appropriate test for a joint work is the 'copyrightable subject matter' test. The magistrate stated that 'a determination as to joint authorship involves an examination of the putative authors' intent at the time the work is produced.' The magistrate judge followed primarily the Second Circuit's test which identified two elements of joint ownership: (1) the contribution of each joint author must be copyrightable and (2) the parties must have intended to be joint authors. The putative joint authors must entertain in their minds 'the concept of joint authorship.' The magistrate judge ruled for P. The district court examined the two competing tests: (1) the Childress standard, which requires both copyrightability and intent to be joint authors, and (2) the 'collaboration test.' 'The major difference between the approaches is that the latter does not require each of the putative joint authors' contributions to be independently copyrightable.' It then held that P was likely to prevail on the merits under either test. The district court sustained P's objections to the magistrate judge's finding that she was not likely to succeed on the video tape claims. D appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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