Substantially Similar--A Blog on IP Issues, Writing and Film
Question and Answer #7: Can I Write about Real People in Fiction?
by John Aquino on 06/18/13
Answer: In writing classes, we were encouraged to write about what we know. In writing fiction, in trying to make it realistic, we can make characters up from scratch or model them on real people or we may unconsciously be using real people as our models even when we think we are making the characters up from scratch.
The important thing to remember is that the law does not really distinguish between writing that is nonfiction and writing that is fiction. Libel is a published false statement that is defamatory that is of and concerning an individual that causes him or her damage. If an individual claims a character in a novel is based on him and that the portrayal is false, defamatory, of such a nature that people tell him they recognized him as the character, and that the portrayal has caused him damage, even if the name of the character is different from his own, then he can arguably sue for libel.
The problem is some of the elements of libel are such that they make it difficult for an individual to succeed in a libel claim against a novel. This is why individuals –such as the actress Scarlett Johansson--continue to look to other areas of the law.
There is a type of fiction called a “roman a‘ clef,” literally a story with a key, the key being real people and events. A roman a‘ clef is a fiction based on actual events. One type of a roman a clef is a novel set in the past that employs actual people –usually deceased—in fictional situations. In these stories, the novel’s hero meets Mark Twain and Albert Einstein. Legal action is usually not a concern since the dead cannot sue for libel since libel is about damage to an individual’s reputation and that individual cannot sue because he is dead.
Another type of roman a‘ clef is those that could have been memoirs had they been written as nonfiction. Ernest Hemingway wrote Farewell to Arms and the Nick Adams stories in which a fictionalized version of himself encounters fictionalized versions of people he really knew set against a landscape of events that really happened—e.g. World War I. (Toward the end of his life, he wrote a memoir of his experience in Paris in the 1920s called A Moveable Feast that some claim was mostly fiction).
Roman a‘ clefs include the Moon and the Sixpence by W. Somerset Maugham, with a central character based on the painter Paul Gaughin; Queenie, a novel by Michael Korda based on the life of the actress Merle Oberon; White Hunter, Black Heart by Peter Viertel, based on the author’s experience working on the movie The African Queen with director John Huston; the Carpetbaggers by Harold Robbins with a hero based on the tycoon Howard Hughes; Postcards from the Edge by Carrie Fisher, based on the Fisher’s experience with her mother Debbie Reynolds; and the Devil Wears Prada by Lauren Weisberger, with the “devil” character modeled on the magazine editor Anna Wintour.
Of these, Gaughin and Oberon did not sue because by the time the novel came out they were dead. Reynolds did not sue Fisher because she was her mother. Huston accepted Viertel’s portrayal of him in the novel and actually provided a release promising he would not sue when White Hunter, Black Heart was optioned for the movies in 1957, three years after it was published. But a movie was not made until 1990, after Huston died, primarily because the fictionalized portrait of Huston in the book was so negative and Huston was well respected in the movie industry. Wintour actually went to the premiere of the movie version of the Devil Wears Prada and said she enjoyed it because it was obviously satire.
And Wintour’s comment points out one of the problems with suing a novelist for portrayals based on individuals. The portrayal must be “of and concerning” that individual. If the work is a novel, the argument is, it’s obviously not about that individual because it’s about a fictional character. The individual can still sue, and arguably win, but it’s hard. Also, if the individual is a public figure, he or she must prove that the false statements were made with absolute malice, which is either knowledge that they were false or were made with complete disregard as to whether the statements were true or false. If the character is set in a fictional world dealing with fictional people and at least some fictional events, then it’s a difficult task to prove that the author knew the statements were false. Of course, they were false, he may answer, it’s a made-up world, it’s a novel.
Meeting the tough standards for libel has caused some celebrities not to sue for allegedly libelous fictional portrayals. Another reason they may not sue was suggested by Mark Arnot in his article “When Is Fiction Just Fiction: Applying Heightened Threshold tests to Defamation in Fiction,” Fordham Law Review, Vol. 79, Issue 3 (2007). Arnot described what he called was the “small penis rule,” which he acknowledged was really a tactic and not a rule. In 2006, Michael Crowley wrote a negative appraisal of novelist and filmmaker Michael Crichton in the New Republic. In his next novel, Crichton included a character named Mick Crowley who was a pedophile with a very small penis. To sue for libel, arguing that he was not that character, Crowley would have allowed discussion of the actual size of his private part into court. He did not sue. And while this may seem an extreme example, suing for libel does open up discussion of at least certain aspects of an individual’s life in court.
There have been successful suits for libel against films and novels—see Bindrim v. Mitchell, 92 Cal. App. 36 61 (App. 2d Dist. 1979, in which the court refused to let a plaintiff be libeled because the author claimed only to have written fiction)--but not that many.
The difficulties in suing for libel have caused some celebrities to explore other areas of the law such as invasion of privacy and violation of the right of publicity. Often, courts may consider these to be end runs around libel litigation employed because it is difficult to prove libel.
This does not mean a writer should be cavalier and think that putting false statements about a thinly-disguised individual in a novel will be immune from litigation. It will not be. Many of these cases have gone to court and whether the plaintiff won or lost is immaterial compared to the time and expense the defendants wasted. As always, in writing, make sure your facts are correct and your statements are defensible in a court of law.
And also remember that there are also courts in other countries where the laws are different, and in this global media age, one can be sued outside of the United States. The disclaimer that is still employed in most films—“The characters and events portrayed in this film are fictitious and any resemblance between actual people and events is unintended”—was instituted in the mid-1935 after M-G-M lost a libel suit about one of its movies in England. It was announced in early June 2013 that the actress Scarlett Johansson was suing a French publisher in France for use of her name in the novel "The First Thing We Look at," in which a woman believed to be Johansson is revealed after 60 pages to be an imposter. Johansson is reportedly seeking compensation and damages from the "breach and fraudulent use of personal rights." Her publicist is describing it as a landmark case.
Johansson would have difficulty suing for libel because she is not a character in the novel and so it is not “of and concerning” her. The right of publicity in the United States specifically exempts novels, films, and histories. But in other countries, the right of publicity laws can be different.
I had a similar situation with a client who was the focal point of discussions in a novel in which my client was discussed by fictional characters. It was my advice to my client that under U.S. law, there would be difficulty suing for libel, invasion of privacy, or right of publicity. My concern was that the author of the novel would use my client’s photo or image on the cover of the book, which, as a separate artistic expression from the book, could violate my client’s right of publicity. I contacted the publisher about this concern, the publisher responded that they would consider my client's concerns in developing a cover, and the published cover ultimately did not use my client’s image.
Scarlett Johansson is evidently exploring the issues of the use of her name in the text of a novel under French law. The French court will decide whether to take up the case. These types of expression may happen more and more. The ultimate effect of this and other litigations on U.S. law, if any, is still to be explored.
Answer to question below: I'd like to look into more what happened with Patriot Games. Clancy suggested in interviews that he did not ask Charles. When he was questioned by an interviewer if he had heard from Charles about Patriot Games he said, no, that it must have been clear to Prince Charles (and the world) that the character in the book was a fictionalized version of Prince Charles. It's interesting, though, that when they made the movie version they changed the character from Charles to a fictional royal cousin. The filmmakers said that there was concern that showing the kidnapping of the royal family would inspire someone to actually try it. This would suggest, at least to me, some government influence. It reminds me of the 1975 movie Hennessy in which actual footage of Queen Elizabeth was cut into the plot showing an attempt to blow up the royal family. It was very realistic, with the filmmakers using a shot in which the Queen must have looked up when someone dropped something to seemingly show her reaction to the police jumping on the bomber in the cathedral. The government reportedly wanted to have the film withdrawn and finally insisted that the film carry a disclaimer that no member of the royal family participated in the making of the movie. The British are very protective of their royal family.
As to what you can and cannot do, I can only speak generally, of course, but Charles would have difficulty suing for libel in the U.S. because libel is a false statement that is defamatory that is of and about the individual, that is published, and that causes damages based on actual malice for a public figure and negiligence for anyone else. If Charles is portrayed heroically, he would have difficulty with the "defamatory" element. Even if portrayed unheroically he might have problems with the damages, "of and about" and "actual malice" elements, with your publisher arguing that it is clearly fiction. U.S. right of publicity statutes generally have exceptions for fictions. It doesn't mean Charles still couldn't sue (and run up your legal expenses) but the likelihood of his winning would not appear to be high. But laws in other countries are different and since publishing and film are global, one has to be aware of them. That's the reason Scarlett Johansson sued in France, why the British government got involved in the film Hennessy and maybe the film version of Patriot Games.
The proof is in the pudding. If you want to use Prince Charles or anyone living as a character in a novel, you could go ahead, run the finished work by an attorney who can give what you actually express a closer look, and know that it would be likely carefully vetted by your publisher and will make a decision of whether litigation like Scarlett Johansson's is worth the risk.
Question and Answer #6--The Difference Between Defamation and Right of Privacy
by John Aquino on 06/04/13
Question: What is the difference between defamation and the right of privacy?
Answer: That’s a big question because these are vast areas of the law. Let me focus on libel, which is written defamation, and false light invasion of privacy.
Libel is a false statement about a person that is made to a third person (published), that harms the person’s reputation, and that is caused by absolute malice if it is about a public figure and negligence for non-public figures. Absolute malice means knowledge that the statement was false or indifference as to whether it was true or not—
When a complaint is filed, the defendant answers, the plaintiff responds, and then, usually, the defendant files a motion to dismiss, arguing that the plaintiff failed to state a claim, meaning one or more elements of the tort, in this case libel, has not been satisfied. Most of the elements—whether the statement is true or not, the degree to which it has been published—are of the type a judge will most likely want to let a jury decide, and so the judge will deny dismissal if the motion to dismiss focuses on them. It’s possible that the statement is so obviously true that the judge will dismiss on a showing of its truthfulness, but, more often than not, truth is not that clear cut. And so, defendants seeking a dismissal will likely go after damages, saying the defendant has not been damaged. And damages in libel is sometimes really hard to prove.
I remember a play titled A Case of Libel by Henry Denker, which was a fictionalized account of a chapter in the attorney Louis Nizer’s book My Life in Court about an actual libel case. My Dad was an attorney, but he, like many attorneys, didn’t talk about the law at home and usually disliked movie versions of trials because of the liberties taken. But when he saw the tv version in 1968 he liked it, feeling it was pretty realistic. (Denker was trained as an attorney and was, after all, working from Nizer’s book.) In the play, the attorney tells the plaintiff he has to show he was damaged by the statements made about him by a powerful, muckraking journalist. There is one scene in which the plaintiff and his attorney talk to a friend, begging him to state in a deposition that he had told the plaintiff he didn’t get the job because of the false statements. The friend, fearful of retribution by the journalist, says he can’t. So you have to prove that you lost your job or didn’t get the speaking engagement, something, to win damages.
But there’s an interesting thing about libel as opposed to slander, which is oral defamation. In a case of slander, absence of damages will not survive a motion to dismiss. Slander is about words in the air, and the reasoning is that if you are not able to show damages from slander in response to a motion to dismiss, which occurs several months after the alleged slander, you won’t be able to show it at trial. But with libel we’re talking about words on paper or on tape or on film. They are relatively permanent. And the reasoning is that absence of damages in a case of libel will survive a motion to dismiss since just because you can’t show damages several months after the event doesn’t mean that by the time of a trial you won’t be able to show that you have lost or your job or lost the speaking engagement or been booted out of your club for the behavior alleged in the published statement. Those allegedly defamatory words are out there and still capable of doing harm. And it often takes harm to reputation a while to be apparent.
This means that if you are sued for libel, unless the statements are instantly provably true and unless you settle, you are likely to have to go through discovery—interrogatories, depositions, etc.—and go at least to the summary judgment stage and possible to trial. This is your time, your attorney's time, fees, and costs.
This is a good reason to do everything you can not to get sued for libel.
Now, even though a plaintiff may be able to go all the way to trial without proving damages, he or she will still have to prove damages at trial to win damages. It is for this reason that you’ll see libel verdicts in which the jury found for the plaintiff but only awarded a penny in damages. You still have to take the damages aspect of libel seriously.
False Light Invasion of Privacy. This tort is not recognized in every state, although states that do not have it may still entertain aspects of it in a broader right of privacy claim. But it does show the big difference between defamation and the right of privacy: defamation is grounded in reputation, and false light invasion of privacy is not.
My favorite false light case concerned the baseball pitcher Warren Spahn. Spahn was a great pitcher but when a writer was commissioned to write an unauthorized biography of Spahn for children he decided he needed to make Spahn’s life more exciting and made a number of false statements, including that Spahn won the Bronze star during World War II, which he did not. Spahn was embarrassed but could not sue for libel. Why?
Libel is a false statement that is defamatory about a person that is made to a third person (published) and that harms the person’s reputation. Saying that someone did brave things in a war does not harm his or her reputation; it enhances it. Therefore, Spahn could not sue for libel. He did sue for false light invasion of privacy, arguing that the harm was not to his reputation but to his privacy. The lower court blocked publication of the book and awarded Spahn damages of $10,000. On appeal, the court affirmed, citing the emotional injury the false statements had caused and would cause Spahn, Spahn v. Messner Inc. 21 N.Y. 2d 124 (1967).
The Spahn case has been used as a precedent all over the country. The legal definition of false light is that it is a publication by the defendant about the plaintiff that is made with actual malice, that places the plaintiff in a false light, and that would be embarrassing to reasonable people.
Question and Answer #5--The Copyright of "Happy Birthday" and a little on "Miss America"
by John Aquino on 05/17/13
Question: Can I give a public performance of "Happy Birthday?" I heard that it is protected by copyright and that I'll get sued unless I pay a royalty.
Answer: It depends what you mean by a public performance.
If you sing it at your of a friend's home, no, you're not going to get sued for that because it is not a public performance. If you sing it in a restaurant or at a public park, and, of course, on television or at a professional or amateur theatre, Warner Music Group, which claims it owns the copyright for "Happy Birthday to You" and collects over $2 million a year in royalties, says you owe it money. Whether or not they attempt to collect it is its call.
Public performance is defined in the copyright law as performance in public outside of the normal circle of family and friends. The lack of commerical advantage to you as part of the performance would go in favor of it not being a public performance, except that courts have found that restaurants and these other public venues have an indirect commercial advantage from the unauthorized performance of copyrighted material.
Warner claims and asserts the copyright of "Happy Birthday," with the money collected through the venue's ASCAP license, but there are some who dispute the claim.
The problem is the song was created over 100 years ago, a copyright for a book that included a song that has the same music as "Happy Birthday" was registered shortly thereafter, copyright filings for four instrumental versions of "Happy Birthday" and two with the lyrics were registered 40 years later, legal scholars have argued that the copyright for "Happy Birthday" is not in force, but the copyright has been asserted by a very powerful media organization.
While the story of "Happy Birthday" is obscured by the clouds of time, the story of a more recent dispute concerning another well known song, "Here She Is, Miss America" is better known in this electronic news age, up to the point where it was sealed by court order.
"Happy Birthday." The history of the song begins in 1893. Patty Hill taught at the Louisville Experimental Kindergarten School, and her older sister Mildred was a pianist and ethnomusicologist, specializing in African-American music. Together, they wrote a number of songs for Patty's classes, one of which was called "Good Morning to You." It was published in their book "Song Stories for the Sunday School," which was issued by Charles F. Summy. The copyright for the book was registered with the U.S. Copyright Office in 1893 and renewed in 1921.
Early in the 20th century, schools began singing the lyrics "Happy Birthday to You" to "Good Morning to All," making the lyrics fit the music by repeating the first note to cover "happy." No one knows who wrote the new lyrics, and they may just have evolved improvisationally in the process of music classes. "Happy Birthday to You" was published in several song books.
In 1934, As Thousands Cheer, a musical review with a book by Moss Hart and songs by Irving Berlin, opened on Broadway at the Music Box Theatre. It ran for 400 performances during the Great Depression, starred Ethel Waters and Clifton Webb, and featured such Berlin songs as "Easter Parade" and "Heat Wave." It also interpolated what was thought to be a public domain children's song, "Happy Birthday to You." It's ironic that with all of the musical riches from original Berlin songs in the score, there was a lawsuit over the interpolation. A third Hill sister, Jessica, sued for infringement in the U.S. District Court for the Southern District of New York on behalf of Patty and Mildred's estate, Mildred having died in 1916.
The complaint, Hill v. Harris, S.D.N.Y., No. 78-350 (Equity), filed August 14, 1934, claimed infringement of "Good Morning to You," not "Happy Birthday to You." In depositions, Patty and Jessica mentioned "Happy Birthday to You" as if it were the same song as "Good Morning to You," although the sisters never claimed that either Mildred or Parrty wrote the lyrics to the former.
The Chicago publisher of the sisters' book, Charles F. Summy Corp., quickly published four instrumental versions of the song's melody and two versions of "Happy Birthday to You" with music and lyrics. The company filed copyrights for all six versions. The copyright registrations, filed four months after the lawsuit, on Dec. 29, 1934, listed as authors not the Hill sisters but "work-for-hire" composers who were Summy employees. When the copyright for "Good Morning to All" expired in 1949, Summy claimed that "Happy Birthday to You" was a derivative work from "Good Morning to All" with a publication date of 1935.
Warner bought the rights to the song in 1990 and collects its millions in royalties mostly from insurance companies, who pay to clear up potential litigation for films and tv shows. The 1934 copyright would have expired in 1991 were it not for various extensions to copyright terms and, most especially, the Copyright Term Extension Act of 1998, which basically added 20 years to the copyright of works created before 1978 and for which there was heavy lobbying in Congress from such copyright holders as the Disney Corporation, Warner, and the estate of Margaret Mitchell, author of Gone with the Wind. The U.S. copyright for "Happy Birthday" is now set to expire in 2030.
In a 2010 article, George Washington University law professor Robert Brauneis claimed in "Copyright and the World's Most Popular Song," GWU Legal Studies Research Paper No. 1111624 (Oct. 14, 2010) that "Happy Birthday to You" was surely no longer protected by copyright. Among the arguments against the work being protected by copyright are: its authorship attributions were defective and rendered the copyright invalid; the songbooks that first published "Happy Birthday to You" did not carry copyright notices, which under the copyright law in effect the time, pushed the song into the public domain; the 1934 copyrights were for arrangements of an already-published song; and there is some question whether the original copyright for the song was ever renewed.
But unless you want to challenge Warner's copyright, which to date no one apparently has, you may have to pay royalties if you want to sing it in a public performance. It is clear that the cost of the lawsuit would be more than the royalties' for a single performance or even several, and so, unless you are in a business in which "Happy Birthday to You" is sung a great deal, challenging the copyright is probably not worth it. (For his part, Brauneis claimed that the deficiencies for the copyright are so glaring that he thinks the challenge would be successfuly effected rather quickly.)
But I remember 20 or so years ago on tv shows starring Steve Allen and The Tonight Show with Johnny Carson people starting to sing "Happy Birthday" to another guest or someone in the audience and Allen and Carson stopping them, saying, "No, if you sing that we have to pay two little old ladies in Kentucky $100." Of course, the two little old ladies were long dead, and the use fee is now paid to a licensing agency.
Incidentally, Patty Hill died in 1946, and Jessica in 1951. Patty and Mildred had never married or had children, and the family established the Hill Foundation, which under arrangement with the copyright owner, now Warner, receives one-third of the royalties. Patty and her sister Mildred were posthumously inducted into the songwriters Hall of Fame in 1996.
As for the lawsuit against the creators of As Thousands Cheer, who included Berlin, Hart and Sam Harris, the producer, it was dismissed in 1938 for lack of prosecution. By that time, the song's copyright had been registered, Summy was collecting royalties, and litigating the case to a conclusion as to the copyright's validity may not have seemed like a good idea. The lawsuit did, however, provide Summy and the Hills the opportunity to publicly assert their ownership against unauthorized use in a big way.
If you want to delve into the legal history of the song, Brauneis has generaously posted a wealth of legal documents at docs.law.gwu/facweb/rbrauneis/happybirthday.htm.
"Here She Is: Miss America." The song was written in 1954 by Bernie Wayne, who also wrote "Blue Velvet." It was used by the Miss America Pageant in 1955 in a promotional film, and sung first by emcee Bert Parks at the end of the pageant when the winner is crowned. Parks' singing of the song became iconic, and he did it for 24 years. He was fired from the pagent in 1979, sang a parody of the song to a komodo dragon in the 1990 film The Freshman starring Marlon Brando and Matthew Broderick, and was brought on to sing the song in the 1991 pageant, the year before he died.
Wayne's widow, Phyllis Wayne, sued the pageant in 2012 in a copyright dispute, Wayne v. The Miss America Organization, C.D. Cal., No. 2:12-cv-03449, filed 4/20/12), claiming the organization's license to use the song had expired in 2010 and yet the organization continued to use the song in connection with the pageant in 2011 and 2012 and on CDs. This was not a dispute over copyright ownership or authorship but of licensing fees. The song was replaced by instrumental music for the 2013 pageant in January.
The dispute was confidentially settled in December 2012, and the lawsuit dismissed. But on May 7, 2013 the pageant announced that the song would not be used in the 2014 pageant and was no longer to be part of it. No reason was given, and the assumption is that dropping the song from the pageant was either part of the settlement agreement or it is in reaction to the lawsuit and the settlement. The relationship between Phyllis Wayne and the pageant has apparently not been a friendly one. The attorneys are saying the terms of the settlement are confidential, so we probably won't know for sure what happened.
In some ways, Phyllis Wayne is a lot like Jessica Hill, the keeper of the copyrights, the kepper of the flame.
Copyright 2013 by John T. Aquino
Returning to the Stage, However Briefly
by John Aquino on 05/15/13
In this blog a few months ago I discussed a book I had written on artists as teachers and, while mentioning professions in the arts who were also teachers. paid tribute to a professor who taught me at Catholic University in Washington, the late Leo Brady, professor and playwright. I was honored to be invited April 27 to share my memories of Mr. Brady from my blog on stage as the CU drama department celebrated its 75th anniversary.
I was told that my blog was found by the drama department as part of a Google search. It's nice to be found and read.
The April 27 event was an on-stage celebration, with alumni such as myself sharing memories, the showing of slides and videotapes of past peformances, and alumni recreating past performances and sharing the stage with current students.
I have not been on stage for over 30 years. I forgot how blinding the lights were. I was an English major with a drama minor. I tried out for dozens of plays. When I made my presentation on April 27, I almost said that after being there 25 seconds it was the most time I had ever spent on that stage before someone shouted "Thank you very much" from the dark during an audition. I didn't say that because I was afraid someone in the audience would immediately shout, "Thank you very much." Actors!
It was also the first time I was ever miked on that stage--they had a mike at the podium. I had just assumed that since we were all trained in drama we were all going to project and spent the day doing vocal exercises. We were taught to project our voices and to reach the little boy in the last row who was sitting there because he had saved his pennies to see the play and deserved to hear as much as those who could pay more. But I've been to plays since then at a number of university theatres, and while actors have been trained to work with their bodies in a way we never were and demonstrate incredible flexibility and even grace, they usually don't project as well, and the little boy will be mad.
I was a drama minor, the teacher/directors knew the drama majors, and I was never cast in a CU production. I performed in productions staged by other students and co-founded a theatre company in which I performed in park theatres in the District of Columbia. I met my wife Deborah, fell in love, decided that I had to earn a living, and so, with my English degree, began writing for other people. The fact that I didn't haunt regional theatres in my spare time and try out for anything I could fit into my schedule means, I think, I didn't have the necessary fire-in-the-belly drive that actors must have.
Attending the anniversary celebration were many who had studied at CU. The drama department was founded by Father Gilbert Hartke in 1937. I was there in the late '60s and early '70s. There was a time from the 1940s through the 1960s that the CU drama department was arguably the best-known drama department in the country and with the Arena Stage, and the National Theatre was virtually the only theatre in Washington. That the CU drama was the center of drama activity in the area is demonstrated by the incredible number of photographs of Hollywood and stage stars from the period visiting Father Hartke at CU. At the celebration, speakers discussed this and how CU drama ushered in integration in its casts long before the other theatres in the District did. The CU drama department also spun-off the Olney Theatre and worked with the State Department to develop the National Players who gave performances around the world.
In its July 7, 1947 issue, Time magazine wrote, "The drama department at Catholic University in Washington, D.C. is the best collegiate play factory since George Pierce Baker's 47 workshop at Harvard." It cited CU plays that had been brought to Broadway, including Lute Song and Sing Out, Sweet Land, a cavalcade of American history and music created by then-CU drama professor Walter Kerr. As I wrote before, five of Leon Brady's playwriting students went on to win the Pulitizer Prize for drama.
The drama department brought in guest actors and alumni to star. I remember an actor named Donald Davis doing a wonderful Richard II in 1966 or so. A few years later I saw him on television playing the oriental villain Dr. Yes in a parody of Dr. No on the tv show Get Smart. Philip Bosco is an alumnus, and moviegoers may remember him in such movies as The First Wives Club, My Best Friend's Wedding, and Kate and Leopold. Other alumni include Jon Voight and Susan Sarandon.
It's difficult to describe the great influence of the CU drama department. When I decided to be a writer, I didn't have any writing samples and so I wrote a letter in response to a job ad and noted, "While my experience to date may not seem that exciting, I can only assure you that I am much more flamboyant in person." I received a telegram inviting me to a job interview at one of the national automobile associations headquartered in D.C. and the director there said he loved my letter. "You don't need a writing sample. That is your writing sample!" He then revealed that he had been a CU drama graduate and a member of the National Players. "I'm one of Father Hartke's kids," he said. Things looked rosy until he brought me to the man who would be my immediate supervisor, a sour-faced fellow who was not a CU drama graduate. "So," he said, "you think you're flamboyant. That's not a good thing for our type of writing. And where's your writing sample?" I didn't get the job, but I almost did and it was because of the influence of the CU drama department.
The drama department theatre burned in 1967 and was rebuilt as the Hartke Theatre in 1970. They had a gala opening season and brought in prominent guest artists such as Cyril Ritchard and Helen Hayes. Hayes gave her last stage performance in Eugene O'Neill's Long Day's Journey into Night, directed by Leo Brady.
But other theatre came to Washington around the same time, especially the Kennedy Center, which opened in September 1971. Leonard Bernstein wrote Mass for the Kennedy Center. Theatregoers, when given a choice between a university production and 42nd Street at the National or Long Days Journey with Jack Lemmon and Kevin Spacey at the Kennedy Center, tended to choose the university less.
And theatre tastes were changing. I remember when it started to happen. The CU drama department did several somewhat old-fashioned musicals in the late 1960s and early 1970s, including The Day the Senate Fell in Love and a revival of Sing Out, Sweet Land. For the latter, I remember that Washington Post theatre critic Richard Coe concluded his review saying that the CU drama department could no longer be regarded as an important theatre venue.
That was pretty cruel. What was happening was there was suddenly a lot more theatre, and it was a transitional time for drama. As for musicals, they were being reinvented.
The CU drama department is still one of the best theatre departments in the country. Its contributions to the theatre in Washington and to theatre everywhere in the country are underestimated and surely underappreciated.
It was an honor to be on the stage for this tribute and to share the stage and memories with so many fine actors, directors, and playwrights. Over the years, I may have underappreciated the drama department myself.
Copyright 2013 by John T. Aquino
Lessons in Denying and Taking Authorship Credit
by John Aquino on 05/09/13
Did you ever take credit for something that you really didn't do, or not take credit for something that was yours or mostly your work?
With books, plays, and films, this issue often comes up. Artists can be very competitive. Did Elvis Presley really co-write the lyrics for the 1956 song "Love Me Tender" with Virginia Matson to the Civil War tune "Aura Lee? Actually, the lyric was written by Ken Darby. When asked why he credited Matson, who was his wife, as co-author, Darby said, "Because she didn't write it either."
Similarly, Al Jolson is credited, along with Buddy DeSylva, with the lyrics for the 1920 song "Avalon" with music by Vincent Rose. Jolson didn't write the lyrics but his name on the song sheet as a co-writer was thought to sell records. Rose may not have written all the music either. Giacomo Puccin's publishers sued, saying that the melody had been taken from Puccini's "E lucevan stelle" from Tosca. The court awarded the publishers $25,000 and all future royalties.
And then there's Orson Welles, who at the height of his fame received co-author and sometimes sole author credit for virtually anything he produced and directed, be it radio program or film. Herman Mankiewicz wrote the original script for Citizen Kane which Welles and others pared down and gave input to as the normal part of collaboration. There is little doubt that Welles' vision for the movie helped reshape it, but, outside of the add-libbing that can be part of theatrical and filmic collaboration, it is unlikely that Welels wrote a word of the script. Welles finally agreed to accept only a co-author credit for the film for which he and Mankiewicz received the Oscar for best screenplay in 1941--Welles' only Oscar.
And then you have stories about selfless people like Darby and very gracious people like Oscar Hammerstein II. When he and Jerome Kern were writing the stage musical Show Boat in 1927, they hit upon the idea of using an unused lyric that P.G. Wodehouse, who had written a number of shows with Kern, penned for a song for the ingénue in Oh, Lady, Lady in 1917. Kern adjusted the music to be more appropriate for a middle age woman and Hammerstein adapted Wodehouse’s lyrics.
Wodehouse's lyric ends this way:
He's just my Bill,
He has no gifts at all,
A motor car
He cannot steer
And it seems clear
Whenever he dances
His partner takes chances.
I can't explain,
It's surely not his brain
That makes me thrill.
I love him
Because he's--I don't know
Because he's just my Bill.
In Show Boat, the song is sung by Julie, whose husband had swallowed her Negro blood from her cut finger so that, with Negro blood in his veins, they could be together in the racist South in the 1880s. But, as the years have passed, we see that she is clearly without him, has been with other men, and has developed a drinking problem. She sings the song in a rehearsal for a show. It’s not about her, but as she sings it becomes clear that it is about the life she wishes she had had. Hammerstein's revised lyric ends like this:
He's just my Bill
An ordinary man.
He hasn't got a thing that I can brag about.
And yet to be
Upon his knee
So comfy and roomy
Seems natural to me.
I can't explain,
It's surely not his brain
That makes me thrill.
I love him
Because he's--I don't know
Because he's just my Bill.
Hammerstein obviously used great portions of Wodehouse's lyrics, and yet he transformed it from a sly and silly song about a silly young man to the quintessential torch song for a woman who had dreamed of falling in love with an Adonis and now finds she loves an ordinary guy. Hammerstein kept the last part of Wodehouse's lyrics intact and yet, with his change to what came before, the singer's "I love him/Because he's--I don't know" is now a grappling to explain—love, a love the singer no longer has. I have not seen the song performed—even the 1951 movie with Ava Gardner as Julie--without my eyes filling up.
Hammerstein received co-credit with Wodehouse but then spent the rest of his life denying it, saying he had done almost nothing to deserve it. Again, this is the Hammerstein about whom his protégé Stephen Sondheim said, comparing Hammerstein to his partner composer Richard Rodgers, “Oscar was a man of limited talent and infinite grace. Rodgers was a man of infinite talent and limited grace.” I don’t buy the limited talent part of Sondheim’s assessment of Hammerstein, but he seems to have been right about the grace.
On the other end of the spectrum, you have John Wexley. Wexley had written a play called The Last Mile that had made a star of Spencer Tracy and was filmed several times. In the late 1930's and 1940s he had screenwriting credits for some perfectly fine films: The Amazing Dr. Clitterhouse, Confessions of a Nazi Spy, and especially Angels with Dirty Faces and City for Conquest, the latter with James Cagney as a boxer who is blinded by resin dust placed on his opponents' gloves and who affably and touchingly adjusts to his blindness.
In 1943, Fritz Lang was assigned to direct a fictionalized film--finally titled Hangmen Also Die--about the assasination Reinhard Heydrich, the number two man in the Nazi SS and the reprisals the Nazis took. The Austria-born Lang had always wanted to work with the legendary Bavarian-born playwright Berthold Brecht, who, like Lang, had fled Nazi German and was living in Hollywood. Brecht and Lang worked on the original story. Since Brecht did not speak English, Lang turned to Wexley, who spoke German, to work with Brecht to develop the story into a screenplay.
Brecht and Wexley reportedly fought bitterly during their collaboration--Brecht was not easy to work with--and when the film was in production Wexley went to the Screen Writers Guild and demanded a solo credit, saying he had written everything in the screenplay and Brecht had written nothing. In interviews he gave to Peter Bogdanovich, Lang said that it was clear that Brecht had written the majority of the screenplay and testified to the Guild on this point. But, according to Lang, the Guild felt that some day Brecht would return to Germany and Wexley would need the credit more than he. Wexley did receive sole screenwriters' credit. Lang was only able to get Brecht an "orginal story" credit that he shared with him.
A few years later, the House UnAmerican Activities Committee began investigating Hollywood. It called Brecht as a witness, who testified that he was never a member of the communist party. He had to have a translator because he did not speak English, making his testimony difficult for the committee. The committee thanked him, dismissed him, and the day after his testimony Brecht returned to Germany.
Wexley was a member of the American communist party. But, while Brecht had not been a registered communist, he had been schooled in Marxism by some of the founders and prime movers of the communist party in Germany. Wexley's brand of communism was a puppy compared to Brecht's. The HUAC banned Hangmen Also Die as a subversive film, and Wexley was listed as its sole screenwriter. It was cited along with other films he worked on when Wexley was called before the HUAC. Wexley was blacklisted and never worked in Hollywood, or virtually on any other film, again. His only credits after 1947 are two television films made in East Germany.
There is wisdom in being hesitant to take too much credit and in not taking credit for something you did not do.
Oh, and to illustrate how discussing who wrote what can be confusing, and also getting back to Welles, in his preface to the novel based on his screenplay for the 1950 film The Third Man, Graham Greene notes in his preface that although he received sole screenplay credit for the film the most famous line in the movie was add-libbed by Welles. The line is: "Don't be so gloomy. After all, it's not that awful. Remember what the fellow said. In Italy for 30 years under the Borgias, they had warfare, terror, murder, and bloodshed. But they produced Michaelangelo, Leonardo de Vinci, and the Renaissance. In Switzerland, they had brotherly love and 500 years of democracy and peace and what did that produce, the cuckoo clock." The lines do not appear in Greene's novel, which was really his narrative film treatment for the screenplay. This would appear to put Greene along with Hammerstein as one of the generous ones when it comes to credit
Welles' accepted the credit (and even suggested he wrote all of his own dialogue, which is not true), although he later did suggest that the line came from an old Hungarian play. Later commentators have suggested that Welles' borrowed the lines from an 1888 lecture on art by the painter John Abbott McNeill Whistler or that Greene really wrote them himself after all. One reason for disclaiming or at least qualifying the credit for the lines, as Welles himself admitted, is that cuckoo clocks do not come from Switzerland, they come from the black forest in Germany.
Copyright 2013 by John T. Aquino
