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Determination of Co-Authorship status under the Copyright Act Cases of Interest >  IP Cases of Interest >  IP >  Copyright
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Thomson v Larson

Thomson v. Larson

147 F.3d 195 (2nd Cir. 1998)

Calabresi, J.

FACTS: In 1989, Jonathan Larson and Billy Aronson began working on RENT, a Broadway musical version of Puccini’s opera, La Boheme. They collaborated until their amicable separation in 1991. Larson obtained Aronson’s permission to continue developing the musical on his own, and Aronson agreed that he would not be a “collaborator or co-author of RENT.”

In 1993, James Nicolla, Artistic Director of the New York Theater Workshop (NYTW), urged Larson to hire a playwright or bookwriter to help develop the shows’ narrative structure. Larson refused, insisting RENT be entirely his own project. After a successful workshop production of RENT, produced by the NYTW, Nicola again suggested that Larson work with a bookwriter. Again, Larson refused and insisted he be the only author of RENT.

In May 1995, while preparing for RENT’s early 1996 Off-Broadway? production, Larson agreed to the NYTW’s hiring of Lynn Thomson, a playwriting professor, as a dramaturg. Thomson’s contract with NYTW did not mention copyright interests or ownership of the final work. Larson and Thomson worked on the show together “extremely intensively” throughout the summer and fall of 1995. Thomson described the “October Version” of the RENT book as the culmination of her collaboration with Larson. In November 1995, Larson signed a second contract with NYTW for further revisions of RENT. The contract incorporated terms of the previous agreement that provided (a) Larson had approval rights of all text changes, (b) all text changes would become his property, and (c) Larson would be billed as the “sole author.”

Larson died suddenly after the final dress rehearsal on January 24, 1996. However, RENT opened Off-Broadway? on February 13, 1996 to rave reviews. RENT moved to Broadway on April 29, 1996 and enjoyed tremendous critical, artistic, and commercial success.

Thomson requested a percentage of the shows’ royalties from the Larson estate. After negotiations between Thomson and the estate broke down, she brought suit against the estate, requesting that she be declared the “co-author” of RENT.

PROCEDURE: The U.S. District Court for the Southern District of New York rejected the Plaintiff’s claim of co-authorship and dismissed the rest of the complaint.

ISSUE(S): (1) Whether Rent, the Pulitzer-Prize? winning Broadway musical, qualifies as a statutory “joint work” co-authored by Thomson; and (2) Whether, even if Thomson is not deemed a co-author, she automatically retains exclusive copyright interests in the material she contributed to the work.

HOLDING: Affirmed. (1) No. Under the co-authorship test announced in Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991), Thomson is not a co-author. (2) Undecided. Thomson failed to plead copyright infringement of any alleged copyright interest.

ANALYSIS: First, the Court states that Thomson’s claim requires it to interpret the copyright ownership provisions of the Copyright Act of 1976 (the Act). The Act defines a “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” The court cites to the legislative history, which reveals the touchstone of the definition “is the intention at the time of the writing is done that the parts be absorbed or combined into an integrated unit.”

The court examines its interpretation of this section of the Act in Childress v. Taylor. In Childress, the court announced that a co-authorship claimant bears the burden of establishing that each of the putative co-authors: (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors.

1. Independently Copyrightable Contributions to the Work

The Court noted that the district court found Thomson “made at least some non-deminimis copyrightable contribution.” Since the district court decided the case on the second prong of the Childress test, it did not address the copyrightable nature of Thomson’s contribution to the plot, characters, or narrative structure.

2. Intent to be Co-Authors?

The Court highlighted that Childress requires the parties “entertain in their minds the concept of joint ownership.” Thomson argued that the Childress standard should be limited to cases where claimants have made minimal contributions. She argued she made a major copyrightable contribution to RENT, and that her collaboration with Larson was evidence of his intent that she be a co-author. However, the Court noted that even a significant contribution to a work does not confer co-authorship status.

The Court emphasized the significance of decision-making authority in co-authorship claims. Here, Larson retained sole decision-making authority in RENT’s book and libretto. The Court relied on Thomson’s statement that she was “flattered that Larson was asking her to contribute actual language to the text.” The Court stated this demonstrated Thomson knew any contribution she may make to the RENT script or libretto was completely within Larson’s discretion.

The Court also found Larson’s Playbill biography persuasive because he listed Thomson as a dramaturg, which supported the district court’s finding that Larson regarded himself as the sole author. The contract with NYTW also provided evidence that Larson considered himself to be the sole author because the contract identified Larson as the author and never mentioned Thomson. Further, Larson’s rejection of working with a playwright or bookwriter on two separate occasions indicated he did not intend to have a co-author. Also, the Court found that Larson understood what co-authorship was because he formed an agreement with Aronson that Aronson would “not be considered an active collaborator or co-author of RENT,” and that Larson had collaborated with co-authors for previous screenplays on unrelated projects.



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