Substantially Similar--A Blog on IP Issues, Writing and Film

Update on Question and Answer #7, Can I Write About Real People in Fiction?

by John Aquino on 07/07/14

In a previous post, I had mentioned that the actress Scarlett Johansson had filed litigation June 13, 2013 against a French novelist and his French publisher for a character in his novel who is thought to be Scarlett Johansson but turns out to be an imposter. Johansson sued for defamation and for fraudulent exploitation of her name, image and celebrity.

The French court handed down its ruling last week and found in favor of Johansson on the defamation count--Johansson had alleged that the character had engaged in a life style that was not Johansson's--but dismissed the count of fraudulent exploitation of her name, image, and celebrity, noting that the actress had discussed her private life in interviews.

Johansson had asked for 50,000 euros in damages, and the court awarded her 2,500 euros in damages plus 2,500 in legal costs.

The French publisher is claiming victory, noting that the book has already sold 100,000 copies in French and German editions and that it is entertaining offers for an English translation.

It turned out to be not the "landmark" case Johansson's publist had promised when the lawsuit was filed.

I had indicated in my original post that Johansson's libel claims was likely to weakest, which is why celebrities often resort to other legal claims, like Johansson did. Interestingly enough, the court granted in her favor for libel, but awarded just a token amount, and dismissed the other claim. Some judges have exhibited sympathy for celebrities battling stories about their private lives.

For writers, it still comes down to what I wrote originally, that the law does not distinguish between fiction and nonfiction. If an individual claims that a fictional portrayal amounts to false statements that the public can identify with him/her that are defamatory and cause damages, he/she can sue for libel. A writer should keep that in mind in basing fictional characters on real people or using real people as characters. Because or the inherent conflict between fiction and a statement that is false, it has proved difficult for plaintiffs to win in these sitiations. It becomes a benefit/risk assessment for the writer and publisher.

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A Good Collaborator Is a Precious Thing

by John Aquino on 04/28/14

I have recently been legally representing co-authors on a book contract and throughout the publication process. And I had written earlier in this blog about co-authors when discussing joint copyright.

It made me think about what a precious and rare thing having a good collaborator is.

Many of us will collaborate with others in the course of our work. Literary works are usually thought of as solitary things--a novelist writes a novel, a poet pens a poem. This isn't always true. Some novels are co-written--Seven Days in May--although the bulk are not. Some non-writers require the help of professional writers in their memoirs and fiction.

Dramas are also usually thought of as solo activities--Tennessee Williams as a young man working in a box factory gets an idea for a play.

But dramas lend themselves to collaboration more because the theatre itself--director, lighting, costumes, scenery, actors--is a collaborative medium. In the drama of ancient Rome and Greece, from what know the plays of Sophocles, Aeschylus, Aristophanes, Platus and Seneca were solo efforts. Aristophanes' The Frogs, features a debate in the underworld on drama by Euripides, who had just died when the play premiered, and Aeschylus, who had died 50 years before, suggesting they were thought of as solo writers, although they likely benefited from the collaborative theatre process to get their works on stage. When drama was revived in England in the Middle Ages, the Biblical mystery plays were ascribed to, say, the Wakefield Master, but it's conceivable that they were joint efforts of the communities that put on the plays. Tudor drama in England appears to have been written by solo authors, but Elizabethan, Jacobean and Caroline plays were credited to both solo and joint authors on their title pages. And there is even scholarships that some of the plays in the First Folio of William Shakespeare have scenes by other uncredited authors. Shakespeare himself is thought to have contributed lines to the unfinished and unproduced manuscript play The Play of Thomas More. There were so many theatres in London that each company appears to have needed a new play every two weeks, so there was, not surprisingly, a joining of efforts. In the modern drama, although there have been some playwriting team such as that of George Kaufman and Moss Hart, plays have generally been the works of one author.

In the musical theatre--although there have been individuals such as Irving Berlin, Cole Porter, and Steven Schwartz who have written both the music and the lyrics--the composing of music and the writing of lyrics tend to require distinct skill sets and songs are usually the results of collaborations, with one or more persons writing the music and one or more writing the lyrics.

Songs for the musical theatre, then, are perhaps the perfect examples for collaboration. They are joint works with music and lyrics forming parts of the whole. Composers and lyricists have often jumped from partner to partner, perhaps staying with one for a while and then moving on. Successful songwriting teams are rare because they require constant chemistry between the two as well as some luck.

Collaboration is intimate work--close to marriage. There long hours, disagreements, even quarrels, and, when it works, bliss.

Rodgers and Hart. The composer Richard Rodgers is kind of a microcosm of how rare it is to have find a successful partner. He had 40 years of success with two partners and then 20 years of drought.

In 1919, the Queens, New York-born, 17-year-old Rodgers began writing songs with Lorenz Hart, a fellow Columbia University alum seven years his senior. The next year, one of their songs was interpolated in a Broadway show and over the next 20 years they wrote songs for 28 Broadway musicals and 6 Hollywood musical films.

Hart's lyrics were sharp, witty, vernacular (they wrote a song with the most non-musical title they could think of--"I Got Five Dollars"), with sometimes unexpected polysyllabic rhymes. He could also write love songs that were simple, direct, and heartfelt: "Blue Moon, you saw me standing alone/Without a dream in my heart,/Without a love of my own." Rodgers' music was versatile: full of waltz rhythms, jazz melodies and comic numbers. Rodgers sometimes wrote music to Hart's lyrics and just as often and maybe more often as Hart's availability became more erratic, wrote the music first for Hart to wrote lyrics for it later.

Although seven years younger, Rodgers was the more responsible and the luckiest. He was happily married with children. Hart was short, insecure, drank heavily, lived with his mother, was a latent homosexual and yet also fruitlessly pined for Vivienne Segal, who was often the leading lady of their musicals. While Rodgers was very disciplined, Hart once appeared at a meeting with the European film director Ernst Lubitsch with lyrics scribbled on a coacktail napkin. Rodgers appears to have paternal to his older, troubled partner and yet was also something of a cold fish. Hart often disappeared for days, leaving Rodgers to cover for him and sometimes write his own lyrics.

But they worked well together. They were known as a team--Rodgers and Hart. Their contracts even required that their work always be billed as a Rodgers and Hart. When they were under a film contract and Hart was assigned to write English lyrics to Lubitsch's version of the Viennese operetta The Merry Widow which already has a a score by Franz Lehar, the credit read, "Lyrics by Richard Rodgers and Lorenz Hart," even though Rodgers had written nothing for the film.

They worked together for over 20 years. Few of the shows they wrote are ever revived since they are tied to a 1920s muiscal comedy style that Rodgers himself helped supplant. There have been occasional revivals of The Boys from Syracuse and Pal Joey. But they produced an incredibly long string of song hits. By 1943, however, Hart could no longer work. He died that year at the age of 48, shortly after his mother. But even before then Rodgers, so fortunate to have the same partner for two decades, found a second partner that he worked with exclusively for about the same amount of time.

Rodgers and Hammerstein. Oscar Hammerstein II had written lyrics with Rodgers before Rodgers met Hart. He too was a Columbia alum. He was Hart's age. Unlike Hart, he was happily married, solid and dependable. With Jerome Kern, he had written the landmark musical Show Boat but was coming off a long line of failures. When they started working together in 1943. Rodgers asked him, "Do you like to write the lyrics first or will I write the music first?" Hammerstein said, "I always write the lyrics first." And he did.

Hammerstein continued to explore the musical drama approach to musicals that he had started with Show Boat. Oklahoma! began not with a long line of chorus girls but a single cowboy singing as he entered. While Hart saw love as wry and sly and sometimes sad and hurtful, to Hammerstein it was warm and strong and life fulfilling, something you could sense "across a crowded room." Oklahoma! was revolutionary and it was followed by four more mammoth hits: Carousel, South Pacific, the King and I, and the Sound of Music, with one modest success--Flower Drum Song, a well-received television musical--Cinderella, a well-received film--State Fair, one ambitious failure--Allegro, and two outright failures--Me and Juliet and Pipe Dream.

Rodgers adapted his music easily to Hammerstein's style. He broadened his approach, making it a little closer to opera in its sweep.

For all of their great successes, Rodgers and Hammerstein were evidently not close, much of that due to Rodgers. After Hammerstein's death in 1960, Rodgers said that he really hadn't known him well.

Rodgers Without Them. Rodgers was an incredibly fortunate composer--two successful partnerships spanning 40 years. But after that, he went from partner to partner, which has been common in the musical theatre. Having written lyrics for Hart, he wrote his own for the show No Strings (1962), two additional songs for the film version of The Sound of Music, and the score for the 1967 television musical Androcles and the Lion. All were elevated by his name. He tried to partner with Alan Jay Lerner on a musical about reincarnation. Lerner's partner for My Fair Lady and Camelot, Frederick Loewe, had retired due to a heart condition. Lerner's availability was just as erratic as Hart's had been, although for different reasons--Lerner was something of a jet setter. Rogers had evidently become less patient as he aged. The collaboration broke up, and Lerner completed the score for what became On a Clear Day You Can See Forever, with Burton Lane, and it became a modest list.

Rodgers then worked with Hammerstein's protégé Stephen Sondheim on the songs for Do I Hear a Waltz. It was a troubled collaboration and was only a small hit that is almost never revived. Rogers then collaborated with Sheldon Harnick, who had written the lyrics for Fiddler on the Roof, for Rex and Martin Charnick for Two By Two and I Remember Mama, both none were hits and are little remembered. Two By Two ran a few months primarily because its star was Danny Kaye, but the others lasted just weeks.

Rodgers' success with Hart and Hammerstein followed by 20 years of different partners and little success shows that a successful collaboration is a rare thing. However difficult it is, it should really be treasured.

I have three more illustrations that illustrate the preciousness of a good collaborator.

Adley and Ross. Jerry Ross and Richard Adler teamed up as a songwriting team in 1950. Each wrote music and lyrics. In 1953, their song "Rags to Riches" was a hit for Tony Bennett and the same year they wrote most of the songs for the Broadway revue John Murray Anderson's Almanac. In 1954, Pajama Game, which has the unlikely musical plot of a union dispute and for which they wrote the score. won the Tony award for best musical. The next year, Damn Yankees, a musical about a baseball fan who sells his soul to the devil, also won the Tony. Both shows were made into successful Hollywood movies and are frequently revived. But in 1955, soon after Damn Yankees' premiere, Ross died suddenly of a heart attack at the age of 29. Adler, who was five years older than Ross, struck out on his own, wrote a number of Broadway shows, but none of them ran long. His last, Music Is, a musical version of Shakespeare's Twelfth Night, closed after eight performance in 1976. His most noteworthy (or notorious) enterprise after Ross died was the 1962 happy birthday to President Kennedy show at which Marilyn Monroe sang happy birthday to the president.

Ross and Adler's talents complemented each other. Together they were successful. Without Ross, Adler was not. Their collaboration was a unique thing.

Menken and Ashman. A related example is that of Alan Menken and Howard Ashman. In their thirties, the composer Menken and lyricist Ashman had a broadway success with their musical adaptation of the 1960 cult horror classic The Little Shop of Horrors about a young man who befriends and later learns to feed a carnivorous plant. In 1989, they helped revitalize the Disney animated musical with The Little Mermaid and won Academy Awards for best song and best score. In 1991, they won the same awards for Disney's Beauty and the Beast, which was also nominated for best picture. Ashman died of AIDS in 1991, and his lyrics for only three songs were used in Disney's Aladdin (1992). Aladdin won Oscars for best music, best score and best song (although the song that won had lyrics by Tim Rice). After that, Menken worked with other lyricists on the scores for the animated Disney features Pocahontas, Hercules, and the Hunchback of Notre Dame and the Disney live action movies Newsies, which was later transplated to Broadway, and Enchanted. He wrote the music for the musical Christmas Carol on Broadway and that was broadcast on tv. There are many ways to say that his career since Ashman died has been successful, unlike Adler's. And yet, none of the movies and shows listed here for Menken without Ashman were runaway hits or even universally praised. The lightning that struck when he worked with Ashman did not strike again.

Gilbert and Sullivan. And then there's the example of Gilbert and Sullivan in the late 19th century. Sullivan was a classically trained composer who was also amenable to writing light entertainments such as Cox and Box. In a way he prefigured Leonard Bernstein who wrote symphonies, operas and Broadway musicals. Gilbert was trained as an attorney, wrote nonsensical verse such as "The Bab Ballads" and plays. He and Sullivan first collaborated in 1871, had a mammoth success in H.M.S. Pinafore in 1877 and were so successful that a theatre was built to play just their works, the Savoy Theatre. Their collaboration was often troubled--while enjoying the money he earned from the Savoy operas Sullivan was often goaded to attempt more serious works--and they fought over which one's contributions was the more important. But together their work appeared golden--The Pirates of Penzance, Iolanthe, The Mikado, the Yeomen of the Guard, the Gondoliers. Even their less successful works such as Ruddigore are sometimes revived. Sullivan's music was written as light opera lightened even more by the wit of Gilbert's lyrics. They broke up in 1890 in a quarrel over the cost of a carpet for the theatre. They wrote for other collaborators, the works were not successful, they reunited for two more operas--Utopia Limited and The Grand Duke, neither of which were successful. The magic was gone. They continued to work apart with others with little success. Sullivan died in 1900, Gilbert in 1911.

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Films about Jesus--How to Succeed

by John Aquino on 04/14/14

As the feast of Easter draws near, it's interesting to reflect on the films based on the life of Jesus Christ. It's a story of expansion of the texts, curses, a few major failures, but more successful films than many people realize.

Considering that the story of Jesus in talked about in Christian church services every Sunday and for some every day across the world, it's interesting that there are relatively few films about his life. On the one hand, there is a built-in interest for the story for many people. On the other hand, from a filmmakers' perspective, it's a story that took place 2,000 years ago, and the language and period are difficult to address--the language especially may seem "biblical" in the sense of pretentious and archaic. It is a subject where the audience' devotion to the story puts incredble pressure on the filmmaker to get it right, and, box office performance for stories of the life of Christ have reportedly been poor, although that appears to be a myth.

Early Films and King of Kings. Films about the life of Christ were first made in the late 19th century, following a centuries-old tradition of passion plays such as the Passion Play at Oberammergau, in the German town of that name, which Thomas Edison's company filmed in 1898. Like many of the silent films made about Christ, the 1898 film no longer exists. D.W. Griffith included the story of Jesus' trial and death as one of the four interlocking stories about intolerance in the 1916 film Intolerance. (The British actor Howard Gaye who played Christ became involved in a sex scandal. He was sent back to England, and his name was removed from the credits.)

In 1927, another major director, Cecil B. DeMille, who like Griffith had previously used both a story from the Bible, Moses, that he intercut with a modern story in the 1923 film The Ten Commandments, took on the story of Jesus in his 1927 film The King of Kings. While DeMille discarded his original plan to incorporate the story of Jesus with a modern story, he began the film, not with the Nativity story or a scene from Jesus' life but with an orgy scene featuring Mary Magdelene, who is portrayed as a courtesan, and Judas. Some characterized DeMille's technique as sex and religion epics.

And yet, once he established a scene to lure in viewers who might be lukewarm to religious films, DeMille did some striking things. We first see Jesus through the eyes of a young boy as he regains his sight as a result of Jesus' miracle. DeMille also established a pattern for later makers of films about Jesus--or about anyone's life, for that matter--of having to go beyond the source material to explore a character's motivation and how this particular scene relates to the whole. In John 8.7, which has the story of how Jesus stopped a crowd from stoning a woman accused with adultery, John the Evangelist describes how Jesus sat on the ground and wrote on the earth. Since he deals in images, DeMille has to show what Jesus wrote and why. And so we see that Jesus looks up at a man and writes, "Murderer," whereupon the man drops his stone and moves away. Jesus writes, going from man to man, dropped stone to dropped stone, until all the men have moved away. The conclusion is that he who is without sin should throw the first stone. The Gospel of John doesn't tell us what Jesus wrote, but DeMille presents a reasonable explanation.

DeMille also encountered what was then the unique problem of having to show Jesus being crucified. The crew didn't think about it at first but when they were filming the scene realized that the real cause of death in crucifixtions was usually asphyiation and that if left on the cross while the crew fiddled with the lights or while the other actors muffed their lines H.B. Warner, who played Jesus, could actually die. Someone came up with the idea of nailing a bicycle seat to the cross so that if Warner experienced problems breathing he could just sit down. Otherwise, his body hid the seat from the camera.

DeMille learned from Griffith's problem with Gaye and required that Warner and other actors playing holy men and women sign a contract that they wouldn't drink or smoke in public or behave in a scandal-causing way.

The script was credited to Jeanne Macpherson, who worked on DeMille films from the early 1920s until her death in 1946. She was also DeMille's mistress. Agnes DeMille, the famous choreographer and Decil B. DeMille's niece, said later that Macpherson had wonderful visual ideas but that Agnes DeMille actually wrote the screenplays after conferring with Macpherson. Be that as it may, in the late 1930s, Macpherson went to Italy to make films with Benito Mussolini's son, returning when war broke out.

King of Kings was an incredibly successful film, earning millions for DeMille Productions. A shortened version was made available for years at little or no expense to church and community groups. King of Kings was reportedly so successful that filmmakers thought no one could top it and so no one made another U.S. feature length film about Jesus for 34 years, and that one was also titled King of Kings.

What also may have chilled the idea of a retelling of the story of Jesus with sound was the problem of language. The King James Version of the Bible was written in 1611, and, while there were attempts to modernize it, much of it still stuck in the modernizations, with "shalt" and "lest" and "liveth." This is the language people grew up with in church. How to replace it?

A New King of Kings. Between the two King of Kings, the story of Jesus was used as a backdrop for such major films as M-G-M's Quo Vadis (1951), 20th Century Fox's The Robe (1953), and M-G-M's Ben Hur (1959). Since these films were not based on Bible texts, major writers such as S.N. Behrman, Christopher Fry, and Gore Vidal, showed that it was possible to have people in Jesus' time speak naturally. And these films were likely inspired by DeMille's successful return to the biblical epic in his 1949 film Samson and Deliah.

The success of Ben Hur led M-G-M to attempt a movie telling the story of Jesus, but from a new perspective. Nicholas Ray was the director. He was an offbeat choice in that he had previously tackled the cult teenage hoodlum drama Rebel without a Cause (1955) starring James Dean and other contemporary dramas. His approach was, not surprisingly, to give his retelling of Jesus' story a new even contemporary perspective. The producer was Samuel Bronston.

The writer and director John Farrow, husband of the actress Maureen O'Sullivan, father of the actress Mia Farrow, and a devout Catholic, had worked with Bronston on the 1959 film John Paul Jones and was to direct. He became obsessed with writing the screenplay for King of Kings but, to address the problem of language that the previous King of Kings did not have to deal with, insisted that every word in the script would be from the gospels.

Before he died in 2003, the screenwriter Philip Yordan, in an interview for the cable movie channel Turner Classics Movies, said that Bronston had asked him to read the script and Yordan told him that there was no script, that it was just a collection of lines from the Bible. Yordan took over the script, accepting the only money Bronston could give him--his children's tuition for a Swiss school, and Farrow was let go, never writing or directing a film again.

Yordan and Ray's prologue shows what a divergent approach they had from what Farrow and even DeMille had done. The prologue was written by the science fiction writer Ray Bradbury and spoken by Orson Welles. It shows the Roman counsel Pompey entering Rome in 65 B.C., ordering the death of of the Jewish priests who try to stop him from entering the temple. Entering the holy place by stepping over the priests' bodies, anxious to find the temple's "treasure," he discovers only scrolls containing the holy scriptures. He takes the scrolls, leaves the temple, and is approached by a priest who has survived the massacre and who begs him on his knees for the holy scrolls. Pompey clearly contemplates tossing the scrolls into a nearby fire but, looking down at the old man, on a whim, hands them to him, and so the holy scriptures survive. There's no record that I know of of Pompey sparing the scrolls that became the Bible, but it's a reasonable conjecture of something that could have happened.

And this is Yordan and Ray's approach throughout. Bararbas is not thief but a revolutionary opposing the Roman occupation. A young soldier who spares the baby Jesus during the slaughter of the hold innocents is later seen as the centurion at the cross who says that Jesus was truly the son of God, He becomes a choric figure throughout the film.

Jesus is young and vibrant as played by Jeffrey Hunter. He appeared to be so young that the film was cruelly dubbed "I Was a Teenage Jesus," playing off the 1957 horror film I Was a Teenage Werewolf. Hunter was actually 35 when he made the film, and Jesus was 33 when he died. The contrast may really have been between Hunter and Warner, who was 52 when he made the 1927 King of Kings.

The film had over $25 million in worldwide grosses against a $5 million estimated budget, so it was a financial success, although it was generally not successful in the long run for the participants. Yordan found his forte in writing spectacles, going on to pen El Cid, 55 Days at Peking, and The Fall of the Roman Empire for Bronston. The failure of the last one in 1964 bankrupted Bronston. Yordan too experienced hard times when he was accused of having profited from the blacklist. A prolific writer himself, he was approached by writers who had been blacklisted for having been communists or allegedly supporting communism and agreed to serve as their front. He put his name on their screenplays and shared the money with them. These writers and others later called Yordan a bloodsucking profiteer, while Yordan protested that he had just been helping these writers out and deserved at least some of the money because his reputation could have been harmed by the failure of screenplays that he did not write. As for Ray, Bronston was pleased enough with his work to have him direct his next film, 55 Days at Peking. But Ray had a breakdown, the film was finished by others, and Ray didn't really direct much after that.

Curse of Playing Jesus. There is also the question of the curse of playing Jesus. H.B. Warner, while he was contractually prohibited from drinking in public, drank in private, struggling with the pressure of playing Jesus. He became an alcoholic and never had another starring role. He was in his 60s then, however, and he did have smaller roles in such classic films as You Can't Take It With You (1938), It's a Wonderful Life (1946), and Sunset Boulevard (1950).

Hunter may have been hurt by playing Jesus. How do you followup such a role? He had a few starring part immediately afterward but soon was doing villains in the tv series The Green Hornet in 1966. He was given the part of Captain Pike in the first pilot of Star Trek. When a second pilot was ordered, Hunter was either no longer available or turned it down, depending on the story. William Shatner took over the role, which he played for three seasons and in six moves. In 1968, Hunter played a straight man to Bob Hope in The Private Navy of Sgt. O'Farrell. He died in 1969 as a result of a stroke and a fall at the age of 43.

More Recent Films. There followed some films that also re-envisioned Jesus. Pier Paolo Pasolini's The Gospel According to Matthew (1964) portrayed him as a Marxist, Martin Scorcese's The Last Temptation of Christ was not based on the gospels but on a novel by Nikos Karantazakis, and Mel Gibson's The Passion of the Christ (2005) told the story of Jesus with graphic depictions of the violence he endured to his body, in a script taken from the gospels but in Arameic with subtitles, the language that Jesus spoke--again addressing the problem of the language. The latter had a worldwide gross of $600 million against a budget of $30 million, showing that religious films do have a audience. It was also described as antisemitic in its strict citing of the gospel story's language.

There is, however, little dispute that the Passion of the Christ is straightforward, earnest, even gritty, and holds the interest. The use of subtitles indicates that it is an ancient story but the passion, if you will seems very real.

A more traditional, big budget approach can be seen in two films: George Stevens' The Greatest Story Ever Told (1965) and Franco Zeffirelli's Jesus of Nazareth. Stevens' film was big-budget with a cast of major stars playing cameo roles--Shelley Winters as a leper who is cured, John Wayne as a centurion, Claude Rains as Herod--that some saw as a distraction. It was dignified, reverential, and somewhat long. Like Shane and other previous Stevens' films, it was low-key, with Jesus quietly talking to his followers. This seemed quite contemporary to a 1960's audience but also added to the slow pace. Stevens cast an actor to play Jesus who was perhaps unknown to many moviegoers but not to students of film--Max von Sydow, who has appeared in a number of films by the Swedish director Ingmar Bergman. With his slightly foreign American accent and sense of gravitas, Sydow was highly praised. But the film was plagued with bad weather in its location shootings--in the U.S. and not in the Holy Land--and drew only $7 million in U.S. grosses against an estimated budget of $20 million. It was Stevens' next to last film.

Zeffirelli's film was made for television and ran six hours, which allowed it to tell the whole story of Jesus without excluding many of the stories from the gospels. It had a literate screenplay co-written by the novelist Anthony Burgess that, like Yordan's, re-envisioning of the story, took reasonable liberties with the story but always with respect. The star cameos were there but somehow didn't seem as intrusive as in Stevens' film.

As for the curse of playing Jesus, in the forty years after The Gospel According to St. Matthew, Enrique Irazoqui who played Jesus only made five more films. von Sydow and Robert Powell, who was Jesus in Jesus of Nazareth, developed careers as supporting actors but did not again obtain leading roles. Neither did the part of Jesus ignite the careers of William Dafoe in the Last Temptation of Christ or Jim Caviezel in The Passion of the Christ--Caviezel is starring in the U.S. tv series A Person of Interest.

It's interesting that no one appears to have become a major star as a result of playing Jesus. A number of major stars--Richard Burton, Tyrone Power--turned down the role.

Son of God. The most recent Jesus film, Son of God (2014), was expanded from the Jesus portion of a tv series called The Bible. It is very respectful, sincere, and moves at a good pace. But again, the problem is with the language. There are really no allusions to the wording of the gospel stories. There are four credited screenwriters and the approach appears to have been to adopt a modern way of speaking. Peter asks Jesus, "What are we going to do?, and Jesus answers, "We're going to change the world." When they find the tomb empty, John asks Peter, "So he is gone?", and Peter answers, "He's not gone. He's back!" Allusions to Arnold Schwarzenegger saying, "I'll be back" in the Terminator movies was probably unintentional--or maybe not.

The film cost an estimated $22 million to make and it took in $58 million in its first week in the U.S. alone, so it is likely to be financially successful. It's not a bad film and provides additional encouragement that the audience is there for such films.

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Ending A TV Series Without Losing Your Way

by John Aquino on 04/10/14

As television series end, there is often a question about whether they will really end, as in concluding the story, at least for now, wrapping up loose ends, and having the characters move on to presumbly other stories in different settings. In March 2014, the CBS series How I Met Your Mother attempted to do just that.

In a very interesting premise, the series began with the father--Ted--talking to his teenage children in the year 2030 describing how he met their mother 20 or so years before. Over the next nine seasons, the series focused on the lives and romantic attachments of Ted and his friends Barney, Lilly and Marshall, and Robin. At first, in the year 2005, it appears that Ted is in love with Robin, but they break up and Robin becomes one of his friends.

The series, then, was primed to end with Ted meeting the "mother." The series finale aired in March 2014, and the fact that it drew over 13 million viewers was a testament to audience interest in the ending. The outcry over the Internet and in print was a testament to their disappointment.

There's an interesting history about the end of series. Usually, series don't end in the sense of wrapping up because the network may cancel them after production for the season has ended. A classic example is the 1960s sitcom Gilligan's Island, which was about seven castways stranded on a deserted island. It ran three seasons on CBS and was actually renewed for a fourth season. But CBS also cancelled the long-running show Gunsmoke, the wife of the head of CBS objected, and in restoring Gunsmoke to the schedule CBS bumped Gilligan's Island after production on the show had wrapped. And so, no ending was filmed, and the castaways remained on Gilligan's Island until pent-up audience demand resulted in three tv movies over a decade later in which the castaways were rescued, marooned again, and ultimately built a hotel on the island.

There has always been an argument that actually ending the story of a series when its network run is finished hurts it when the series is re-run in syndication. An example is the 1960s series The Fugitive starring David Janssen as Dr. Richard Kimble, who comes home, sees a one-armed man running from his house, finds his wife dead, and is accused, tried, and convincted of her murder. He escapes from custody and tries to find the one-armed man to prove his innocence. He himself is pursued by Lt. Gerard played by Barry Morse.

Throughout its three-year run, there was speculation that Gerard's obssession with Kimble was too much and that he may have been the murderer. Some conjectured that it was one of the members of Kimble's family or one of his business associates, rather than the one-armed man. As the ending of the series was announced so that Janssen could pursue film work, there was, literally, nation-wide interest in who the murderer was.

SPOILER ALERT, Kimble, unsurprisingly, found out that the murderer was the one-armed man. Gerard ultimately actually helps Kimble prove his innocence. (Those who thought that he was too obssessed with finding Kimble have evidently never read or seen Les Miserables, whose Inspector Javert was a model for Gerard.) And the important thing is that the series was difficult to sell for syndication because everybody knew the ending.

But when the creators of a tv series actually decide to end it, sometimes they either get too clever and/or lose their sense of direction. The hospital drama St. Elsewhere ended in 1988 with the surprise twist. The camera enters a snow globe that encloses a miniature hospital held by the autistic child of one of the characters and it turns out that the entire series was in the imagination of the child, whose father and grandfather, whom we knew as doctors at the hospital, are working-class people struggling to know what goes on in the child's mind. In other words, all of the characters the audience cared for over the years were fantasies in the child's mind. An audience primed to find out which future path their favorite characters followed found out that they didn't follow any because they were figments of the child's imagination. The series also did not sell in syndication. Why re-watch a story about a hospital that you now know was imaginary? The creators were too clever for their own good.

Something similar was done with the ending of Newhart in which Dick Loudon, the owner of a New England inn as played by Bob Newhart, is knocked out and Newhart is then found in bed with his tv wife Suzanne Pleshette from Bob Newhart's previous tv show, with the whole Newhart series turning out to have been a dream. But Newhart wasn't as popular as The Bob Newhart Show had been, and so the return to the more popular show was regarded as welcome and clever.

Then you have a situation such as the one concerning the syndicated tv series Xena the Warrior Princess. The show especially attracted the interest of gays and lesbians because of the implication that Xena and her friend Gabrielle were lovers. The shoot was an exhausting one for Lucy Lawless playing Xena and worked around her pregnancy and her fractured pelvis sustained when she fell off a horse. She and her producer husband Bob Tapert decided just to be done with it. They expressed no interest in followup tv movies. And in the last episode, which was broadcast in 2001, Xena, who had been killed, decides to stay dead, although she comes back as a ghost to watch over her friend Gabrielle. Its viewers were shocked, the series was, again, a hard sell in syndication, and, like The Fugitive and St. Elsewhere, is seldom seen.

Perhaps the most notorious series ending is Seinfeld. Jerry Seinfeld and his friends were self-absorbed New Yorkers. The series ran nine seasons until 1998. In ending it, the creators--including Seinfeld himself--decided to bring back a lot of the guest stars who had appeared in the show over the years. But here was the premise for the finale: Jerry and his friends are on their way to Hollywood in a private plane that has to set down in a small town for repairs. They see a fat man being mugged and--being self-absorbed--laugh at him. A policeman arrests them, saying that the town enacted a "good samaritan" law requiring witnesses to a crime to render assistance in the wake of the death of Princess Diana, who, it was reported, lay dying from an automobile accident as paparazzi took photos rather than render help. To justify the law, the district attorney finds witnesses--the returning guest stars--who describe how selfish Jerry and his friends are. They are convicted for violating the law and sent to prison.

What rubbed everybody the wrong way was that they always knew that Jerry and his friends were self-absorbed. But to have the characters' selfishness be so great that they are sent to prison for it seemed very unfunny. It was comparable to the idea of Lucy in the 1950s tv series I Love Lucy being sent to a psychiatric ward at the end of that series because she did such crazy things. (That series ended with no ending, except that it was clear Lucy and Ricky were less affectionate and in real life Lucille Ball and Desi Arnaz later divorced.)

A recent Washington Post article claimed that the fact that Seinfeld does appear in syndication indicates that all the furor was for nothing, that all is forgiven. I think the viewers of Seinfeld in syndication are new viewers. I never watch it when it comes on, and a lot of people I know who followed it it when it when it was new feel the same.

And then we come to How I Met Your Mother. Again, here was a series primed to end with the meeting of Ted and his wife. The character of the mother was introduced at the end of the penultimate season and throughout the last season she appeared during the many episodes about Barney and Robin's wedding but she and Ted kept missing each other.They do meet in the end (in 2014). But we also see that the mother dies 10 years later, Barney and Robin get divorced, and Ted presumably in his 50s,. finishes telling the story to his children in 2030. They respond to him that the story is not about how he met their mother but about how he loves Aunt Robin. The series ends with Ted going to Robin where they will presumably renew their relationship.

The series prided itself on going back and forth in time and presenting twists and other surprises. After it aired, the ending was described by one of the show's creators as just such a twist. He seemed oblivious to the potential audience reaction. We've waited to meet the mother for years, we fall in love with her in the last season, and then you kill her! And it turns out, as his children said, the show wasn't about what we were told it was about, it was about something else.

Sometimes you can be too clever and just lose your way.

The best series endings, the ones that may not be as bold and brass--like Cheers which had some characters like Frasier moving on (to his own series) and avoided the expected big moment in that Sam and Diane don't get married after all--seem more satisfying.

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Copyright and Three's Company

by John Aquino on 02/25/14

In these blogs, I've written about how you cannot copyright an idea and how sometimes you can claim copyright in a character. I've described cases where the authors of novels based on Gone with the Wind and other well-known works have been sued for infringement, argued that under the fair use analysis their work is not infringing, and then they and the copyright owners have settled.

In January 2014, a playwright filed for a declaratory judgment of noninfringement after having received a cease and desist order from the copyright owner. On the face of it, it would seem that he had done a lot right, availing himself of some of these approaches and techniques. Of course, the lawyers threatened suit anyway. He withdrew the play, but now he is asking the court for an answer--does my play infringe the copyright held by this company?

The play is clearly suggested by a U.S. television show of the 1970s named Three's Company. It starred, originally, John Ritter, Suzanne Somers, and Joyce DeWitt. It ran from 1976 to 1984. It was a licensed adaptation of a British tv series titled Man About the House. Both series concerned a man who loved women but pretended to be gay in order to economically share an apartment with two women. The landlord had no trouble with the arrangement because he thought the man was gay.

Some men who were gay thought the U.S. series was offensive. Times have changed and in many places a man would no longer have to pretend to be gay or homosexual to share an apartment with two women.

The playwright David Adjmi wrote a play called 3C about a gay man living with two women in an apartment. Unlike Three's Company, 3C is not a comedy. The names of the characters in the play are different from those in the tv show. And yet the play's title and the basic situation show an influence from the tv show.

DLT Entertainment sent Adjmi a cease and desist order, claiming that the play infringed its copyright of Three's Company and that the play was causing DLT injury but affecting its ability to create a stage adaptation of the tv series.

Adjmi at first withdrew the play from performances, but he then decided to file a lawsuit, Adjmi v. DLT Entertainment, S.D.N.Y., No. 1:14-cv-00568, filed 1/20/14, asking the court for a declaratory judgment of noninfringement.

In his complaint, Adjmi uses a fair use analysis. As to the purpose and character of his use of the copyrighted material, Adjmi claims that it is not a spoof of the original but instead has its own unique characters and plot. It refers to Three's Company "only to explore the disparity between culture and reality."

Adjmi writes that "like any parody 3C makes use of recognizable features of the work it parodies and does so in a transformative way." Here, Adjmi uses the term parody broadly, just as the novel based on Gone with the Wind did, to include social commentary.

Continuing with the fair use analysis, Adjmi writes that as to the amount of the original work that is being used much of what he uses are uncopyrightable ideas rather than copyrightable expression. "None of dialogue is copied, and the development of plot is vastly different."

As to the fair use element of the effect of the play on the original's market, Adjmi asserts that no one seeing 3C could mistake it for Three's Company, "give the play's tragic tone."

We'll see what comes of this. It may settle as others have and therefore produce no legal precedent. There would be an advantage to those of us who write--although not necessarily Adjmi--if it goes to court and generates a decision.

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