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When Spiderman:Turn Off The Dark’s original writer/director ,Julie Taymor, sued the show’s producers late in 2011, nobody was particularly surprised. Ms. Taymor’s lawsuit alleged numerous counts, including the obvious breaches of contract, and the not-so-obvious copyright infringement claims. That suit seeks millions in unpaid fees and royalties allegedly due Taymor, and an order enjoining the producers from using Taymor’s material in any subsequent productions, tours, or other derivatives based on the collossally expensive broadway musical she co-authored with U2′s Bono and The Edge. Observers found little to raise eyebrows about in Taymor’s lawsuit, and have been waiting since November to hear the producers’ side of the story.

Well, the other day, that story came out. The producers have responded to Taymor’s suit with explosive allegations that the academy-award nominated and Tony winning director-bookwriter fundamentally failed to render the services she was hired to perform, instead advancing a story line and overall ‘feel’ of the show that stood contrary to what producers repeatedly requested, and audiences seemingly wanted. With the show in often-extended previews, it was obvious that major changes would be needed. But, the producers indicate, Taymor resisted, arguing against paying attention to audience response. The producers lay the blame for the beleaguered show’s cost overruns, cast and crew injuries, and poor critical response squarely on Ms. Taymor’s shoulders.

At times, the counterclaim reads like a comic book storyline in its own right. The producers cast themselves in the role of the show’s saviors who “engaged in superhuman efforts to save the Musical,” including investing many additional millions of dollars in the show, snatching victory from the jaws of defeat.

The counterclaims contend that due to “the delays and increased expense due to Taymor’s actions,” the producers had to replace her “in order for the show to survive, and for it to continue to provide jobs to the cast and crew and allow investors to recoup their investment.” Following those changes, they say, the Spider-Man Musical is now a hit. “The show is a success despite Taymor, not because of her.”

Well, obviously, this case is one we’ll be watching closely. If it goes that far, the trial will be an enlightening look behind the scenes into the development, financing and production of this, the most expensive Broadway musical ever produced. The drama in the courtroom is likely to be better than the spectacle playing nightly at the Foxwoods Theatre.

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I am often consulted by film and stage producers who tell me they’re ready to start work on raising the financing for their films/ plays/ musicals, or what-have-you, but often as not,  as we get to work, it becomes clear that they’re not as ready as they think. Before going out to investors, it’s important to have your ducks in a row.

Knowing the following six things before you start raising money will dramatically streamline the process, and get you closer to funding, faster.

1. Know your product.

What is a producer’s product? Well, it seems obvious, right? A film/show about X, Y and Z. But is it really? Well, at this point, you’re talking about maybe someday making a film about X, Y, and Z… but that’s not a product (yet)… it’s a dream. Right now… while you’re “in development” your product is an investment opportunity.  Now, of course you’ve got to have a script, a crew, cast and a plan… and you’d better know who’s going to come see the thing and why.

2. Know your customer(s):

So, who’s your customer? At first blush, you might revert to thinking about your audience, and obviously, you DO need to know where your audience is and how you’ll eventually sell them a ticket… but again, right now, you’re selling a dream. That opportunity mentioned above. Who’s going to buy that?

If you answered “Investors”… your partially correct. But, if that’s all you said, you’ve got a lot of work ahead of you. What does the ideal investor look like to you? What is his or her name, age, job, marital status? Do they have kids? Do they travel? Where? How Often?  Where do they congregate?  How will you meet this person?

It’s incumbent on you, the producer, to  answer the question, Why would this person invest in your project? What motivates him or her? What would be the most persuasive thing you can say or do to get him or her on board?

3. Know your budget.

It’s amazing to me that people think they’re ready to go around asking people for money for their projects before they even have a clear picture of how much they’ll need, and where that money is going to go. The job of producing is essentially the job of managing the finances of a project. Leaving aside the fact that you need this information to prepare the legal documents… you need this information for your own internal purposes. Too often producers figure, I’ll do my project with whatever funds I can raise… but haven’t got a real plan. Would you invest YOUR hard-earned cash in someone who says “I don’t know” to the question “How much do you need?”

4. Know your market.

Now we’re talking about how you’re going to sell your project, and to whom. What will the market bear? What ticket price is the “sweet spot”. Will distributors buy this project for distribution? Will they pay sufficient money to make the project financially feasible?  Will audiences like it?  Will they PAY to see it?  Will they TRAVEL to see it?  Why?  Why not?

5. Know the rules.

Too many filmmakers jump the fundraising gun and post notices on facebook, twitter, or their websites saying “we’re now looking for $1 Million” to produce this film/show.”   Guess what… game over! Most film/theatre projects are financed through a ‘limited’ or ‘private’ offering’ exemption from the otherwise expensive and time consuming securities registration requirements. Under these exemptions, advertising the offering is NOT allowed. Other restrictions address WHOM you may approach, and what information you must provide.

If you haven’t studied these rules, and figured out how you’re going to comply with them, consult an entertainment attorney or securities lawyer who handles this kind of thing. Doing it yourself is a recipe for disaster.

6. Know what you’re really offering, and how you’re going to sell it.

Sure, in #1, we talked about your product, but is that really what you’re offering/selling? Investment opportunities abound for folks with money. So, what is it really that you’re offering? You’re selling not just an opportunity to invest in any old business… You’re selling the chance to be a part of a film, play, musical or whatever.  Maybe even to have a credit as an executive producer, or just a “special thanks” mention.  Regardless, you’re selling a fantasy… a dream. Do you know how you’re going to do that?

Once you’re armed with this knowledge, you’ll be ready to get started developing your financing plan (more about this in a future post), and you’ll be ready to start work with your entertainment lawyer to pull the paperwork together.

Related articles

• Best Investment for 2012; The Pop/Rock Band, Cutting Edge (prweb.com)

Thanks.

Mostly, it seems, concerns about designers’ intellectual property are behind the rules, but there may also be safety concerns. The experience of attending theatre begins the moment you walk into the auditorium. Producers, directors and designers take great pains to create a setting in which the audience is drawn in to the story that will soon unfold on stage. Many shows these days use a custom-designed Act curtain, that is hand-painted, from designs created by the scenic designer. The lighting of a pre-show ‘preset’ also represent the creative efforts of the lighting designer. Safety concerns around photography center mostly on the use of flash. Which can distract, or even temporarily blind the performers and crew. Even before the show has technically begun, it’s likely that cast and crew are taking their positions (sometimes at heights above the seating area), and these distractions can be hazardous. Finally, flashes can blind, distract or simply annoy other theatregoers.

But one important consideration omitted from the Playbill article may simply be a preference to give patrons a less technologically laden theatregoing experience.

Going to the theatre is an experience to be savored, and experienced personally, not from behind the lens of a camera, or through the viewing screen of a smartphone. Theatre tickets are expensive, luxury items. (though many of us believe it should be more accessible). It is no more appropriate to take video or photos in a theatre than in a fine restaurant.

So, if you’re going to the theatre, just leave your camera at home. Capture memories in your MIND. If you really must have a souvenir, purchase one in the lobby.

As a lawyer, I’ve often been asked by producers, theatre operators and even patrons just what actions can be taken against patrons who take photos in violation of these rules.

The answer, in most instances, is that the patron be asked to leave the premises and destroy the images in question. Once a patron has been asked to leave, if he or she remains against the will of the theatre, he or she is trespassing, and can be arrested if the police are contacted. Destruction of the images, however, is a more troubling issue. An usher who ‘confiscates’ a patron’s camera or smartphone may actually be comitting a more serious crime: Robbery, and perhaps Assault charges could actually be brought against the persons involved, and the supervisors who directed such action.

If you’re a producer, theatre operator or designer who has questions about these issues, please feel free to give us a call at (310) 443-4185 to discuss your options.

The author(s) of a play or musical own  the copyright in their work, and thus the right to the proceeds therefrom

Unlike a screenwriter, whose work is generally “made for hire”, and therefore belongs to the producer, the author(s) of a play or musical own  the copyright in the work, and are therefore  entitled to receive  proceeds from all exploitation of the show, including all subsequent productions, publication or other exploitations, such as the sale of movie or television rights, cast album rights, etc.

Authors recognize, however, that the contribution a producer makes by developing, producing and building an audience, reputation, and track-record for a show adds tremendous value.     Thus,  for larger scale productions in Regional, off-Broadway and Broadway theatres, Authors often grant Producers a percentage of income derived from exploitation of these so-called “subsidiary rights”.

Threshold for participation

Typically, the producer  must present a threshold number of  paid, public performances before his interest in subsidiary rights vests, and the percentage in question will often increase  as the production achieves various milestones.  For example,  after the producer has presented 22 paid, public performances, he may be entitled to participate in 5% of the show’s subsidiary rights.  Then, after 42 performances, the percentage may increase to 10%, and so on.  Typically, subsidiary rights participations will top out at around 40%.

Notwithstanding the value-added by a successful production, Producers and Playwrights also recognize that this value  dissipates over time. Consequently, the producer’s right to participate in subsidiary rights is typically limited to a time-window of 5 – 10 years, after which the success of the play is attributable to the authors’ contribution, rather than to any particular production.

Other limitations can be placed on subsidiary rights participation, depending on the specific circumstances.  For example  Film and TV rights may be treated differently than revenues from stock- and amateur productions. Likewise, with musicals, certain streams of income from the music may be excluded completely from the producer’s subsidiary rights participation.

Smaller theatres seeking subsidiary rights

There has been, in recent years, a trend of smaller producers and theatre companies to demand subsidiary rights  in consideration of  their productions of new plays. Producers argue that they are investing vast sums to mount a production of a new work, and their potential box-office revenues are unlikely to meet these expenses.  Thus, they argue, they must share in the play’s “back-end” to justify the financial risk they take.

Wise authors will resist granting subsidiary rights participations to smaller producers unless the play is presented very successfully.

In many cases, authors are eager to see their material produced, and make significant concessions on this front.  Experience shows, however, that a small, local production of a new play adds rather little in terms of value to the show in the long-run.  Wise authors will resist granting subsidiary rights participations to smaller producers unless the play is presented very successfully.  Since the authors will again be asked for subsidiary rights when the material is produced on a larger scale, they should be wary of giving away too many slices of the revenue pie to early in the life of the play.

An interesting trend

An interesting trend among the larger LORT theatres has been to stop requiring a subsidiary rights participation in new plays they produce.  These organizations acknowledge that these participations represent a relatively small portion of their annual income, but a relatively large amount of author’s income,  so they’ve decided to let playwrights reap full the rewards of their efforts.

If you’re contemplating a license for production of a play or musical (whether as author, producer or in some other capacity), it’s important to consult with a skilled, knowledgeable theatrical attorney to draw up the contracts.  Call me at 310-443-4185, and  I’ll be glad to help.

Not to be confused with the Integration clause found in many contracts, merger is the point (in time) at which the various creative elements are deemed to be merged or joined into a unified, single work.

Under U.S. Copyright law, a joint work exists from the moment of inception, if the collaborators have manifested their intent to create a work as a single, unified work.  But in the theatre, collaborators often prefer NOT to have their respective contributions (Book, Lyrics and Music) inextricably joined as one until some later point in time.  The merger clause allows the parties to work together on a sort-of trial basis, retaining ownership of their respective contributions until there’s some indication that the show is “finished”.

Up until merger, any collaborator may withdraw or be removed, and frequently may  take his or her contribution out.  After merger occurs, the work is final, frozen, and may not be altered without the mutual consent of all collaborators.

It should be noted that some underlying rights agreements also refer to “merger”, of  components of the underlying material with the adapted pay based thereon.  After this kind of merger, the underlying material becomes a permanent part of the adaptation.

Finally, The event of merger is also viewed by some as a protection for the Producer of a show, who can invest resources in the production, secure that once it is ‘merged’, the show will not change further.

In all of these situations, it is extraordinarily important for  collaborators, rights holders,  and producers,  that the exact timing of merger be determined with great care.

Some typical events that trigger merger are:  The first press preview of the show; the final technical or dress rehearsal; the official opening performance  at a particular venue or level of production.    Each has its merits and its down-sides.  If the merger date is set too late, a disgruntled co-author could withdraw from the collaboration in anger, taking his part of the show with him.  If too early, a collaboration that doesn’t really work well, could be “stuck” with an element (or collaborator)  that undermines the entire show.

The aid of an experienced and knowledgeable theatre lawyer can be invaluable in negotiating and drafting the collaboration agreement, and particularly, in evaluating when merger should be deemed to occur.  If you have questions about merger, or any other aspect of collaboration, please call us for a consultation.

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Earlier this week, the Tony nominations were announced, and my friend Cricket Myers was honored with a nomination for her work on “Bengal Tiger at the Baghdad Zoo“, starring Robin Williams. Congratulations Cricket!

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The Case of Feldman v. Pro Football, Inc. __ F.3d __, Nos. 09-1021, 09-1023, decided on March 25th, 2011 isn’t, strictly speaking, an entertainment law case, but it could have implications for clients in the theatre business, who struggle with decisions about how to accommodate patrons with disabilities.

(The Court’s opinion can be found here)

The Feldman case was brought by Washington Redskins fans with hearing impairments against the management of the team and of the venue (FedEx Field), where home-games are played.
Specifically, the plaintiffs claimed that they couldn’t benefit from assistive listening devices provided by the venue, and demanded that the information conveyed via the stadium’s public address system, and jumbotron monitors also be made available using a captioning system.

The Maryland District Court made several procedural rulings in the Plaintiff’s favor, and on appeal, the 4th Circuit agreed.

In its ruling, the Appeals court stated that, interpreting Title III of the Civil Rights Act and the ADA narrowly, auxiliary aids beyond the usual Assistive Listening Devices ARE required to convey game-related information, emergency and public address announcements, and the words to music and other entertainment broadcast over the PA system.

“A place of public accommodation violates Title III if it fails to provide auxiliary aids and services –which may be nexessary to ensure effective communication for individuals with disabilities — unless it can demonstrate that taking such steps would fundamentally lather the nature of the goods, services, facilities, privileges or would result in an undue burden” 42 U.S.C. Section 12182(b)(2)(A)(iii); 28 C.F.R. Section 36.303(c).

Implications for Theatres

What this means for theatre owners, operators, managers, and producers is that (in the 4th Circuit, at least) captioning (or some other form of auxiliary aid) is now a requirement, in addition to assistive listening devices for deaf and hearing impaired patrons.

The Feldman vs. Pro Football Court left open to the defendants the choice of which auxiliary aids it would make available. FedEx Field opted to provide emailed lyric sheets for songs played over the PA system at Redskin games upon request. Other information is provided via captioning in the stadium.

While it may be possible to distinguish some theaters from venues like FedEx Stadium, they are, nonetheless considered ‘public accommodations’, and the law will apply to venues of all types and sizes. What’s open to interpretation are the definitions of “effective communication”, “full and equal enjoyment”, and what is an “undue burden”.

As I have previously discussed on this blog, many theaters already provide sign language interpretation for specified performances. Whether this is sufficient is, for now, an open question. The option of providing a script or libretto to deaf theatregoers is really not viable, due to copyright and licensing concerns, as well as the fundamental impact that could have on the theatregoing experience for both the affected patrons and those around them.

Essentially, the determination of which form of auxiliary aid to provide must be taken in each a particular instance. So, the advice of an experienced and knowledgeable entertainment lawyer is invaluable.

Sure, we’ve all  made entryways wider, installed ramps, and configured seating to allow for patrons in wheelchairs.  But what about those patrons with less obvious disabilities, such  as deafness and blindness?

Growing threat of lawsuits

Recently, a number of Disability Rights Advocates announced that they and their “public interest” attorneys would soon be turning their attention to “the theater industry”.   Their concern?  Closed Captioning for hearing impaired patrons.

Last November,  a disability rights group filed a class action against Cinemark theatres over this issue.    They claim that,  “Over two-thirds (2/3) of Americans attend movies each year. Yet without some form of captioning, countless seniors and those with hearing loss, cannot enjoy at trip to the movies because they are unable to hear or understand the dialogue.”  Their suit contends that by not providing  Closed Captions, Cinemark’s they are engaged in discriminatory practices that violate the Unruh Civil Rights Act (California Civil Code sections 51 and 52), which prohibits discrimination on the basis of disability, the Disabled Persons Act (California Civil Code section 54.3), and the Americans with Disabilities Act.

In the world of live theatre, it’s not uncommon to see a live sign-interpreter for certain shows and/or specific performances… but should it be required for all performances?  Should closed-captioning become the standard?

The Americans With Disabilities Act

Enacted in 1990, the Americans with Disabilities Act was created to ensure equal access to “public accommodations” for disabled Americans. Movie, concert, and performing arts theaters qualify under law as “public accommodations.”

As such, they must ensure that no individual with a disability may be “treated differently than other individuals because of the absence of auxiliary aids and services.” Included in examples of “auxiliary aids and services” are closed captions, rear-window captioning and open captioning for individuals with hearing impairments.

“Closed Captions”  allow  viewers to optionally  see subtitles  providing on-screen text descriptions of dialoge and other sounds.  Open captions  are on-screen all the time and visible to all viewers.  Live sign-language interpreters are similar in character to open captioning, since they’re visible to all viewers.

So, does the ADA require theatres to provide closed captioning?

By law, theaters must provide auxiliary aids and services (such as the common “Assistive listening devices” providing an amplified signal and headphones); however, public accommodations are not required to make every possible device available or to meet the specific, specialized needs of individual customers.

As a safeguard for theaters, the ADA also maintains that if provision of a particular auxiliary aid or service would result in a fundamental alteration of goods, services, or in an undue burden, i.e., significant difficulty or expense, the ADA would allow an alternative auxiliary aid or service, if one exists, which would ensure equal facilitation to the maximum extent for disabled individuals.

The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length and complexity of the communication; and the context which the communication is taking place.

So, closed captioning systems, which may be much more expensive than the headphone-style devices are probably NOT required for most theatres, and in facilities where sign-interpeters are provided, even those devices may not be required.

First Amendment Considerations

Some producers and venue operators have argued that requiring any form of captioning, sign-interpretation, or other assistance amounts to a “fundamental alteration” in the presentation, and that a law mandating such accommodations violates their First Amendment right to free expression.   Their argument goes something like this…  If we provide a sign interpreter, it requires a lighted position on stage, so it affects our scenic and lighting design and distracts other patrons.  If we provide open captioning, it involves projecting the text above the proscenium, disturbing the other patrons, and distracting from the action on stage.  Closed captioning systems are expensive and involve  display screens that spill light into the auditorium and  distracting other patrons.  So, they argue, there really is no good, alternative accommodation.

But this argument hasn’t yet been tested in the Courts.  Such questions are subject to a so-called “strict-scrutiny” consitutional analysis, which requires that the restraint on speech be narrowly tailored to achieve a compelling governmental interest, and must be the least restrictive alternative to achieving those goals.

Conclusion

Ultimately, it’s the responsibility of theatres and producers to consider the issues, and make sound business (and artistic) decisions about how best to accommodate  persons with disabilities.  While it is inevitable that theatres will see more litigation over ADA issues, Theatres that demonstrate  that they’ve investigated the options, and consulted with individuals with disabilities to determine what type of auxiliary aids of services are needed to ensure effective communication, will encounter fewer issues.

As always, it’s wise to consult with an attorney knowledgable about the law governing theatre operations before making these decisions.  I’m always glad to consult on these issues, and can be reached at 310-443-4185.

Note: Many theatre companies have found audiences very receptive to sign-interpreters and/or open captioning. It’s anything but certain that the “distraction” created by the availability of accommodations for disabled persons isn’t outweighed by the positive public-relations value to being perceived as a good public citizen and steward of the arts.

Related articles

• New Guide Gives Practical Tips for Disabilities Act Compliance — The Chicago Community Trust Publishes New Tools For Nonprofits and Others (prweb.com)
• Theater chain sued over lack of captioning (sfgate.com)
• ADA Blues: …a disabled person who believes he… (sf.curbed.com)
• Government wants to update ADA for cyberspace (seattletimes.nwsource.com)
• Deaf moviegoers sue Cinemark theater chain (seattletimes.nwsource.com)

Historically, when shows have opened to bad reviews, they’ve frequently closed quickly, especially where  advance ticket sales  have suffered as a result.  But here, Spiderman has strong advance ticket sales, which begs the question:  ”Do reviews matter anymore?”

Personally, I think that hype and advertising will keep Spiderman going for a good long while. Besides, I’m still not convinced that Spiderman is ever really expected to recoup its record-setting $65 Million capitalization. (As I’ve previously written, I think the Broadway show may be as much about brand maintenance for the comic-book and movie properties, as about profit)

What do you think? Will ticket sales now plunge like an improperly tethered actor falling to catastrophic injury? Post your opinions in the comments on the website.

P.S.  My favorite line from Benjamin Brantley’s review is:  ”How can $65 Million look so cheap?”