Plagiarizing Oneself . . .

. . . And Other Courtroom Inanities

[Back in the 1980s and ’90s, I kept a collection of clippings and notes that I thought could be ideas for plays.  Since I’m not a playwright, though, I never followed up, so the notes and ideas sat accusingly in a folder. 

[Then along came Rick On Theater in March of 2009 and I repurposed several of the ideas into blog posts: “The Group of Hissed Authors” (7 May 2009), “Romeo Coates” (30 May, 31 May, and 2 June 2009), “Sailor on Horseback” (1 September 2009), “Akhzivland” (24 December 2010).  The posts aren’t as exciting as plays would have been, but at least the ideas didn’t die entirely.  And they made pretty good posts, I thought.

[Among the ideas was one represented by a number of clippings about lawsuits concerning the plagiarism of one artist’s work by another or the asserted ownership of the rights to the work or story of one party by another.  They all struck me as examples of “the arrogance of producers who push their ownership rights to absurd lengths.”  Some of the cases struck me as so absurd that I kept the clippings for future possibilities. 

[Now I wonder if the copyright stories could make a decent post.  All the fun of seeing a staged version of the hearings will be lost—I’d have to describe it rather than show it live on stage with singing, playing, and dancing.  (There was no dancing in the trials, but in my head, there’d have to be—raucous, even—in the plays.)  Here, then, is my attempt to capture the inanities of some of these absurd cases.]

In February of 1989, in an instance I labeled “the height of that arrogance” which I mentioned in my introduction above, the producer of Three Faces of Eve (1957) claimed that the release signed by the woman whose situation was the factual basis of the movie gave 20th Century Fox the rights to her entire life, permitting them to prevent her from selling the film rights to a new book she’d written.  

As reported in the 1-7 February 1989 Variety, Chris Costner Sizemore (1927-2016) sued Fox on the argument that the release she signed in 1956 didn’t permit the studio to prohibit her from selling the movie rights to her forthcoming book. 

Sizemore, even though Three Faces was a huge hit, earning $1.4 million in the U.S. when it was released, had received only $7,000.  Aside from that, she was still mentally ill when she signed the release in the office of Corbett H. Thigpen, who acted as her agent as well as his own agent, even though he was also her psychiatrist.

(The new book was published by William Morrow & Co. in September 1989 as A Mind of My Own, but at the time of Variety’s publication of this notice, it was called In Sickness & in Health . . . .  In 1958, under the name Evelyn Lancaster, Sizemore had written Strangers in My Body: The Final Face of Eve with James Poling and, in 1977, she published I’m Eve, written with a cousin, Elen Sain Pittillo.  The 1989 book recounts Sizemore’s life since her recovery from multiple-personality disorder.)

Fox claimed that the 1956 release did, in fact, give it the rights to Sizemore’s whole life, not just the years covered by the movie, which was based on the book of the same title (McGraw-Hill, 1957) by her psychiatrists, Thigpen (1919-99) and Hervey M. Cleckley (1903-84).

Sizemore ultimately accepted a settlement from the studio and no further movie was made.  The case, particularly Fox’s claim to ownership of Sizemore’s entire life story, including the part that hadn’t even happened yet, struck me as an example of the hubris of the rich and powerful—with deep pockets and scores of lawyers to fight through the courts till the individual is brought to heel.  Even when they lose in court, they manage to win on the bottom line.

My friend Kirk Woodward, who comes from a family of lawyers (see his post “A Lawyer and a Life,” posted on Rick On Theater on 11 November 2010), told me of another case that illustrates this same haughtiness.  

In a case litigated by his cousin on behalf of Dr. David Maurer (1906-81), a professor of linguistics at the University of Louisville who wrote a number of books about underworld argots, including The Big Con (originally published by Bobbs Merrill, 1940).  Maurer’s book was used as a source for Universal Pictures’ 1973 The Sting without permission.  In 1974, the author sued Universal for $10 million for plagiarism.

Kirk told me that while his cousin was chasing down evidence in the Sting case, Universal told him to feel free to look through their files.  He found a letter saying, essentially, “We’ve based the script on Maurer’s book, but we just won’t tell him.”  

“A smoking gun,” concluded Kirk.  Maurer settled the case with Universal in 1976 for $300,000, but the studio delayed paying restitution until Maurer died.

Back in the ’80s and ’90s, there were a number of lawsuits concerning the plagiarism of an artist’s work.  Some of the cases struck me as absurd, so I kept the clipping file for future possibilities.  

One case was against John Fogerty (b. 1945), former lead singer and guitarist, and principal songwriter of the rock band Creedence Clearwater Revival from 1967 to 1972.  Fogarty was sued by the group’s former music publisher, Fantasy Inc., who owned the rights to CCR’s old catalogue from 1967 to 1972.  

In 1988, Fantasy accused Fogerty of plagiarizing himself by using a chorus from his 1970 hit “Run Through the Jungle” in a 1984 song “Old Man Down the Road” (which the company didn’t own).  The record company asked for $140 million in damages.

I’m not even convinced that an artist can plagiarize him- or herself to start with, but in this case, the reappearance of elements from one song (or painting, poem, novel, play, or any artwork) to another, I argue, is what makes an artist’s “style”—the thing that makes him or her unique and recognizable.  It’s innate in his or her art, not a copy of something done before. 

Fogerty, himself, complained, “I was sued for sounding like myself”!  His lawyer, Kenneth I. Sidle, of the Los Angeles firm of Gipson, Hoffman & Pancione, explained it this way: “What similarities there were between the two songs were the result of Mr. Fogerty having written both of them.  Both of them came out of the same musical vocabulary.” 

At a press conference after the hearing, Fogerty said the importance of the case was that it raised the possibility that if he lost, artists could be forced to change their creative styles lest they be sued for stealing their own ideas. 

The press reported that Fogerty revealed: “I saw the specter of a nightmare looming.  I could see William Shakespeare, John Lennon, Bob Dylan and Bruce Springsteen saying, ‘John, don’t blow this.’”

The hearing turned into something of an ad hoc performance—an impromptu mini-concert, if you will.  (We’ll see this again in an even more elaborate presentation shortly.)  Musicologists, of course, appeared at the trial as expert witnesses for both the plaintiff and the defendant.  Then Fogerty took the stand with his guitar to make his point.  

Over a day-and-a-half, the defendant played, riffed, and sang from his works like ''Proud Mary'' and ''Fortunate Son'' to show the way the songs developed and told tales from rock history.  The six-member jury, Fogerty’s principal audience for this special performance, was entertained.

Fogerty won the case.  After just two hours of deliberation, the jury found that the two songs weren’t “substantially similar,” the legal standard that would have constituted copyright infringement.  

A later judge summarized the verdict as “tantamount to a finding that similarities between ‘Run Through the Jungle’ and ‘Old Man Down the Road’ were attributable to the uncopyrightable elements of the ‘Swamp Rock’ genre and Fogerty’s style of songwriting.”

(“I have had a lot of trouble with Fantasy Records,” Fogerty told Adam Sweeting of The Guardian newspaper.  Centerfield, the 1985 album that contained “The Old Man Down the Road,” also included the songs “Mr. Greed” and “Zanz Kant Danz.”  

(These songs were universally understood to be attacks on Saul Zaentz [1921-2014], the owner of Fantasy Records, who instituted a $144 million suit for defamation, claiming that Fogerty portrayed him as “a thief, robber, adulterer, and murderer.”  The two sides settled that suit out of court.  Fogarty did also eventually change to title of the second track to “Vanz Kant Danz” to avoid further legal charges.

(Then there was the matter of Fogerty’s court costs.  Following the lawsuit, the singer-songwriter turned around and sued Zaentz and Fantasy to recover his legal fees and his lost income.  Fogerty lost the first trial because the judge interpreted the law as limiting cost recovery to plaintiffs, not defendants; so Fogerty appealed the verdict.  

(The musician lost again, but decided to see the case all the way to the supreme court.  SCOTUS unanimously decided in 1994 that the standard interpretation of the law was wrong and that a victorious defendant should be allowed to recover; the case was returned to the trial court for reconsideration.  

(This time, Fogerty won and was awarded $1.3 million for attorney’s fees—but he didn’t recover anything for his claim of lost income from not being able to write or perform during the long period of the legal actions, which began in 1985.)

“‘Legal humor,’ wrote David Margolick in the New York Times, “may or may not be an oxymoron. But attempts at it can prove costly, as two comedy writers thrust into the generally unfunny world of litigation recently learned.” 

Margolick’s comment was his introduction to the account of an odd sort of suit in the Federal District Court in Manhattan against the television network NBC by comedy writers E. J. Novak and Debra Studer for copyright infringement.  

The writers contended in Novak v. National Broadcasting Co. that they’d written a series of comedy sketches in August 1985 for Video Vault on WOR-TV, an independent station (now WWOR) in Secaucus, New Jersey, and later had submitted videotapes of the performances to NBC’s late-night comedy sketch show Saturday Night Live for the purpose of seeking employment as writer-performers on the show.

Novak and Studer claimed that SNL appropriated the sketches and characters they’d created on the show without permission and without compensating them.  (For some details on the sketches, see my earlier post “What Constitutes Theft in the Arts?” [5 May 2015; http://rickontheater.blogspot.com/2015/05/what-constitutes-theft-in-arts.html].)

The case began in 1985 and after several dismissals and resubmissions of the claims, was finally adjudicated in 1990 with a summary judgment for the defendant (NBC).  Just to be sure the plaintiffs got his point, the judge added that the behavior of Novak and Studer was “not only unseemly and unfunny, but intended to harass” and sent them off with a fine of $3,500 in sanctions ($7,345 today).

From a legal standpoint, this Novak v. NBC would have been a straightforward copyright-infringement case, but what exercised the judge so much was that, while the network retained a mainstream Broadway law firm, the two writers (who were married) went, as they say in the courts, pro se—they represented themselves. 

By now I imagine we all know how the saying goes: The man who represents himself, has a fool for a client.  Well, that was certainly true for E. J. Novak and Debra Studer—at least in the eyes of Judge Robert W. Sweet.  The plaintiffs turned the courtroom into what Sweet called a “playground for comics.” 

After two years of polite exchanges between Novak and Studer and the defense attorneys, in 1989 they wrote the lawyers a note addressed to “Dear Laurel and Hardy” because of their physical appearances.  

When the attorneys complained to the judge, Novak countered, “Their inconsistency and lack of consideration, even by attorneys’ standards, transcends the boundaries of law and enters that funny little netherworld we call—the Rudeness Zone.” 

Novak then sent the defense team another note greeting them simply as “Stan” and “Ollie” (for those too young to know, that’s Laurel and Hardy, respectively).  In his turn, Novak complained to the judge, “The sight of Mr. Jones [one of the defense lawyers; he was Oliver Hardy, a short, very stout actor] rolling toward us in anger is a terrifying experience reminiscent of scenes from either ‘The Honeymooners’ or ‘Mutual of Omaha’s Wild Kingdom.’”  

Margolick (who was the Times’ legal reporter at the time and had a degree from Stanford Law School) reported that Novak alleged in an interview that he and his partner “were victims of pernicious linguistic discrimination.” 

“We could have said, ‘Your Honor, according to habeas corpus writ dictum, this was dilatory and deceitful,’ but I’m not a lawyer,” said Novak. “We used humor where they used legalese.”  He added that the only people who were actually hurt by his language were Stan Laurel and Oliver Hardy, “because they were compared to these lawyers.” 

However amusing and clever Novak and Studer were, they essentially scuttled their own legal boat when they took their comedic tactics into the courtroom.

By far the most theatrically outrageous court hearing that I’ve read about was Patrick Alley v. Mick Jagger, a 1986 suit for $7 million by a Reggae singer-songwriter who charged that the Rolling Stones’ Mick Jagger (b. 1943) had stolen Alley’s 1979 song “Just Another Night” (released in 1982) to make Jagger’s 1985 song of the same title.

The charge in this case was simple plagiarism: one artist contending that another had appropriated his work.  What made this suit noteworthy here was the trial itself.  This is the case that gave me the idea that there was performable material in the scenario. 

The presentation of the evidence offered in court was . . . I’d say it was unique.  In addition to the introduction of transcriptions of the lyrics of both songs (by dueling experts, of course), as you would expect, the New York Times reported that the testimony consisted of music, both live and recorded. 

During the weeklong trial, a Juilliard instructor played the piano; Sly Dunbar, a Jamaican studio musician, performed on drums; and Jagger sang from the witness stand bits of his recordings “Jumpin’ Jack Flash,” “Brown Sugar,” and “Miss You.” 

Predictably, taped recordings of the “Just Another Night” by Alley (b. 1951), a minor-key reggae ballad, and Jagger’s identically-titled up-tempo rock song were played in court as well.  Jagger also played homemade and studio work tapes to show the development of the song, and attorneys on both sides sang snippets of the two compositions. 

Jagger signed autographs during breaks in the trial, and on the day before the verdict was rendered, when the jury deliberated for 3½ hours, fans broke through a courtroom door and tried to reach the Stones singer-guitarist. 

The decision rested on whether the songs’ choruses were substantially the same.  Both versions included the phrase “just another night with you”—five words.  The judge explained the law on copyright infringement to the six jurors and told them “The use of the phrase ‘Just another night with you’ is not enough, standing alone, to constitute infringement.”  Coincidental similarities, he also affirmed, weren’t sufficient to prove plagiarism.

After the seven-day trial, the jury found that Jagger’s “Just Another Night” didn’t infringe on Alley’s earlier song with the same title.  Alley appealed the verdict, but I couldn’t find any record of the outcome of that action.  After the verdict, however, Jagger proclaimed, “My reputation is really cleared.”

While the rest of the case was just what you’d expect in a copyright-infringement trial for a piece of music, the proceedings in court have always made me feel that the Jagger trial should be staged as a theatrical performance.  I mean, really: singing lawyers!  (Not to mention reggae and rock ’n’ roll music—add a little dancing and it’s got hit written all over it!)  Can’t you just picture it?