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

Avengers: Endgame: Similar to a Play Cycle

by John Aquino on 05/10/19

Like over 100,000 million people ($2 billion in worldwide box office), my wife and I saw Avengers: Endgame over the weekend, the culmination of 22 films that comprise the "Infinity Saga" of the Marvel film comic book universe. I found myself thinking about my days when I was an English literature scholar writing about play cycles.

Play cycles are basically three or more plays on the same story with the second being a continuation of the firs, the third of the second, etc. They can be meant for performance all on the same day or on different performance days, but each is also self-contained. The English medieval play cycles--the York (48 plays), Wakefield (32), Chester (24), and No-Town (42) mystery plays--span from God's creation of the world through Old Testament stories and then through the New Testament and the story of Christ to the Last Judgment and the end of the World. William Shakespeare wrote two groups of plays that can be considered play cycles--1,2, and 3 Henry VI, which is labeled the first tetralogy and tells the story of the War of the Roses (1455-1485), and 1 and 2 Henry IV and Henry V, the second tetralogy, which is basically about the education and growth of Henry V as the ideal English king. But even centuries before that, in ancient Greece, Aeschylus wrote the Oresteia, three plays that recount the murder of King Agamemnon, his children's revenge, and the trial of the murderer, while Sophocles completed three plays about the tragic family of Oedipus--Oedipus Rex, Oedipus at Colonus, and Antigone.

In modern times, George Bernard Shaw's Back to Methuselah premiered in 1922, composed of five plays that span from the Garden of Eden where humans first discovered death to the future where humanity has learned the secret of eternal life. I wrote my Master's thesis on this play cycle and a related article on Shaw's influence on C.S. Lewis' Perelandra science fiction novels that appeared in the Shaw Review--there is a character named Pshaw who quotes from Back to Methuselah that "It is enough that there is a beyond." (Thus, ended my career as a literary scholar.) ; Methuselah is rarely performed--the Washington (D.C.) Stage Guild performed it in separate productions in 2014 (see https://www.youtube.com/watch?v=gmYel51USWA ). A brief college excerpt of the serpent tempting Eve is at https://www.youtube.com/watch?v=4nFJPprzTCY .In 1931, Eugene O'Neill developed a modern version of the Oresteia that was set just after the Civil War and titled it Morning Becomes Electra. It is also seldom performed, but the long and stagy though well acted film version is at https://www.youtube.com/watch?v=-OJ_VyXymTg

Marvel's Infinity Saga is composed of 22 films: Iron Man (2008), The Incredible Hulk (2008); Iron Man 2 (2010);' Thor (2011); Captain America: The First Avenger (2011); The Avengers (2012); Iron Man 3; (2013); Thor: The Dark World (2013); Captain America: The Winter Soldier (2014); Guardians of the Galaxy (2014); Avengers: The Age of Ultron (2015); Ant-Man (2015); Captain America: Civil War (2016); Doctor Strange (2016); Guardians of the Galaxy, Vol. 2 (2017); Spider-Man: Homecoming (2017); Thor: Ragnorak (2018); Black Panther (2018); Avengers: Infinity War (2018); Ant-Man and the Wasp (2018); Captain Marvel (2019); and Avengers: Endgame (2019). As you can see, they were spread out when they started and bunched up at the end to the extent that I haven't seen the last two before Endgame. There have been remarkably few changes in roles for so many films: Edward Norton starred as the Incredible Hulk in 2008 but was replaced for subsequent films by Mark Ruffalo, and Terrence Howard was James Rhodes in Iron Man but was replaced by Don Cheadle in Iron Man 2 and subsequent films when Rhodes also became "War Machine."

I assume that if the first two films had bombed at the box office the film saga would have ended. (I remember Remo Williams: The Adventure Begins (1985), which was intended to launch a series of films about the character, and yet there was only the one.) But their success enabled Marvel to create a film universe, aided by decades of comic books about the Hulk and the others as their bases. The filmmakers were able to plot out the entire saga, dropping throughout the films story points about the infinity stones that Thanos in Avengers: Infinity Wars would gather together to destroy half the universe. It reminds me of two television series that I am very fond of--How I Met Your Mother and This Is Us--for which the creators plotted the stories far into the future and felt so comfortable with the material that they were able to go back and forth in time with ease.

There have been other film cycles--the Thin Man, Tarzan, James Bond, Star Trek, but the nature of Hollywood studios was such that the filmmakers seldom thought that far ahead. The Thin Man, for example, was based on a Dashiell Hammett novel. There was no guarantee the movie would be a success. When they discovered it was, Hammett had effectively stopped writing due to a writer's block. He managed to sketch out scenarios for the first two sequels but had nothing to do with the next three, and his complete absence showed in the later films. The Tarzan M-G-M series began in 1932 and lasted for six films with,the same stars and, mostly, the same creative team, but then was sold to RKO Studios with cast changes (Tarzan and Jane three times each) and cheaper budgets for 14 films and then to Paramount and M-G-M for two films each before the character was given a TV series. There have been 24 James Bond films--and six actors playing Bond, with accompanying ups and downs in quality and style. There has not been, consequently, the creation of mostly coherent universes such as those formed in play cycles and, I would argue, Avengers: Endgame.

With the Marvel Infinity Cycle, some films have been better than others. I am not fond of Iron Man 2 or Iron Man 3 and the Thor films are awfully busy for me. I do like Iron Man and all of the Avengers, Guardians of the Galaxy, and Captain America films. As for the Infinity Saga as a whole, I admire its vision and scope, its big moments as well as small--I was bowled over by the meeting of Stark father and son in the last film. The saga reminds me of mystery play cycles and those by Shaw and O'Neill.

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Reviving (at least) Memories of a Forgotten Musical: The Girl Who Came to Supper

by John Aquino on 05/04/19

I posted an article on this blog some time back about Irving Berlin's last musical Mr. President, which had debuted at the National Theatre in Washington D.C. in 1962 with President and Mrs. Kennedy in attendance but ultimately failed on Broadway. The Washington Post rejected the article saying the event was too long ago, even though the article was submitted to commemorate the 50th anniversary of the D.C. premiere. It was also a chapter of a planned book on unsuccessful musicals by Broadway greats. Another chapter of this unfinished project is on Noel Coward's The Girl Who Came to Supper, which premiered on Broadway on December 9, 1963. I thought of it when I found that someone had placed the entire original cast album on youtube at https://www.youtube.com/watch?v=6nC78rR20hU&list=PLExHxFBlAc_RUW2xeh5voZD1lfY6zEeBM . I thought I'd share some of the article with you, especially since you can sample the score yourself.

It was a troubled show. There were cast problems, and then when the show was in Philadelphia soon before its Broadway opening President Kennedy was assassinated. The show was set in 1911 London during the coronation of George V, and, because it mentioned the assassinations of monarchs that were occurring throughout Europe in the early 20th century, especially in its opening number titled "Long Live the King (If He Can)", the show' beginning was hastily reworked before Supper opened on Broadway..(The replacement opening number on the original cast album was cobbled together from an old Coward song.) Even with these revisions, this tuneful operetta about a time a half a century before seemed out of place in a nation deep in mourning and closed after 112 performances. The book and lyrics were nominated for a Tony Award but didn't win. I have always thought it was deserving of a revival.

Noel Coward was once a household name epitomizing sophistication and wit. He was a composer, lyricist, playwright, author, actor and a director. His operettas and musicals, which include Bitter Sweet and Operette, are seldom revived today. Some of his plays--Private Lives and Present Laughter--have been performed on Broadway recently and are frequently done on college campuses and by regional and community theatres. Some of his songs might be remembered--perhaps "I'll See You Again" and "Mad Dogs and Englishmen." By the mid-1950s, Coward was himself feeling a little out-of-step, and so he took a one-man cabaret show to Las Vegas, to great acclaim. After his 1961 musical Sail Away had been a modest success (thanks in part to Elaine Stritch), he was approached to write the songs for a musical version of Terrence Rattigan's play The Sleeping Prince. Harry Kurnitz wrote the libretto.

You might know the plot of The Sleeping Prince if you've seen the 1957 movie version, The Prince and the Showgirl starring Marilyn Monroe and Laurence Olivier (the filming of which was the subject of the 2011 film My Weekend with Marilyn). The plot of the play, the 1957 film, and the musical are the same: While in London for the coronation, the Archduke Charles, Prince Regent of Carpathia, attends a musical titled "The Coconut Girl" and is smitten by Mary Morgan, a member of the chorus. She accepts his invitation for a tryst, but her assertiveness and naivety prolong her visit. They fall in love, but royal duty stands in the way.

In his diary, Coward described a troubled production. Florence Henderson, who had created the title role in the 1954 musical Fanny and starred in some revivals, was looking at the role of Mary as one all her own. She then announced that she was pregnant and would only be with the show for a few months. Jose Ferrer, who played Charles, had won the 1950 best actor Oscar for Cyrano de Bergerac and had sung in the 1954 movie musical biography of the composer Sigmund Romberg, Deep in my Heart. He possessed a pleasant voice but had never performed in a Broadway musical. Coward wrote in his diary about Ferrer that "those evil fairies at his Puerto Rican christening bestowed on him short legs, a too large nose, small eyes, a toneless singing voice and a defective sense of timing." My Mom and I saw Jose Ferrer two years later in the national tour of Man of La Mancha at the National.Theatre, which required even more of him than The Girl Who Came to Supper. He was no Richard Kiley, the incredible baritone who originated the role and immortalized "The Impossible Dream." I remember reading an interview with the great movie baritone Howard Keel who lamented that he had lost the touring company role to Ferrer. "I think Jose conned them with his Spanish 's'," Keel said. Still, Supper had opened to good reviews out of town.

For his part, Coward wrote a glittering score in an incredible variety of styles. There is a Carpathian national anthem; a complete score for "The Coconut Girl," for which Mary sings all the parts for the young prince; and the "Coronation Chorale" where the royals bemoan the boredom of attending coronations ("With stays too tight/We sit bolt upright/In a rigidly unyielding pew./Even British oak/Goes beyond a joke/When you've sat on it from nine til two") while Mary, who has been allowed to attend and, of course, has never seen anything like it, finds it "wonderful" and "entrancing," with the two contrasting viewpoints ultimately sung in counterpoint. For the subplot of the young prince roaming through the outskirts of London, Coward wrote a series of five music-hall-type songs for Tessie O'Shea as Ada, who won the Tony Award for featured actress in a musical, including "Saturday Night at the Rose and Crown," which goes,

Saturday Night at the Rose and Crown

Is just the place to be,

Tinkers and Tailors,

And Soldiers and Sailors,

All out for a bit of a spree,

If you find that you're weary of life

With your trouble and strife,

And the kids have got you down,

It will all turn right

On Saturday night

At the Rose and Crown.

As the punctuation suggests, it's sung, with a little cheating, in one breath.

Ferrer, even with his "toneless" voice, had a show-stopping number, with dizzying shifts of styles, titled, "Middle Age," which begins,

How do you do, middle age?

How do you do, middle, age?

Autumn winds begin to blow

And so

I'd better unbend my mind to you,

Though,

You know,

I'm not quite yet resigned to you.

And the show ends quietly, as does the movie and film, with Mary deciding she can't stay with Charles as he wishes. Charles sings to himself but she can hear him,

I'll remember her

In the evening when I'm lonely

And imagining if only

She were there.

I'll relive, oh so vividly,

A sad and sweet

Incomplete affair.

And it ends,

I'll remember her,

Heavy-hearted

When we parted

With her eyes so full of tears

She couldn't see.

And I'll feel inside

A foolish sort of pride

To know that she'll remember me.

It's a beautiful score. Coward gave it his all. It was his last musical, and he spent the remaining 10 years of his life acting in mostly forgettable movies, with the possible exception of the original The Italian Job (1969). I hope you enjoy what you hear. I hope someone revives it some day.

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Tribal Sovereign Immunity and Patents: No More Debate

by John Aquino on 04/16/19

I have written before on this blog on tribal sovereign immunity and patents in regard to a Patent and Trademark Office ruling confirmed by the U.S. Court of Appeals for the Federal Circuit http://www.johntaquino.com/Blog-- Substantially-Similar.html?entry=tribal-sovereign-immunity-and-patents . Given my background as a former executive director of a tribal association, I commented on the importance of this immunity for tribes, lamented that the PTO's Patent Tribal and Appeal Board had been somewhat glib in ruling that the immunity was inapplicable for its proceedings, and hoped that higher courts would provide a more detailed discussion.

But the Federal Circuit affirmed the PTAB's ruling, and on April 15, 2019, the U.S. Supreme Court denied review of the Federal Circuit's decision, letting the Federal Circuit's ruling stand. I regret that the feeling of some patent attorneys that the use of tribal sovereign immunity in this case was a sham will persist and that the broader discussion will not occur.

After the validity of its patents for its dry-eye treatment were challenged in inter partes review (IPR) petitions before the PTAB, which have often been criticized as favoring the petitioners, Allergan assigned its patents to the St. Regis Mohawk Tribe in upstate New York with the plan that the tribe would assert its sovereign immunity before the PTAB. After the PTAB ruled that the immunity didn't apply in its proceedings, on appeal before the Federal Circuit, the court acknowledged the legal existence of tribal sovereign immunity, found that it doesn't apply to actions brought by the federal government, and concluded that an IPR was similar to a federal administrative proceeding, even though, when the IPR was created by the American Invents Act, members of Congress labeled it a substitute for civil litigation where tribal sovereign immunity does apply. Allergan and the tribe petitioned the Supreme Court for review, and some attorneys predicted that the court would grant review, which it ultimately didn't. A denial of review only means that the court, for reasons it usually doesn't discuss, declined to review the lower court's ruling. Some had warned that Congress had been lobbied to decide the matter where it was likely to do so in a manner that would harm tribal immunity. At least in Congress, the matter would have been debated. But that is unlikely to happen given that the court's decisions.

And so the Federal Circuit ruling will stand, and the feeling that the use of tribal immunity was a sham rather than a legitimate business offer that the tribe was allowed to pursue will remain. As if tribes haven't been through enough.

There's a Dakota tribal saying that when you're riding a dead horse you should get off. It's similar to the adage reportedly coined by British member of Parliament Dennis Healy, "When you're in a hole, stop digging." But the end of this, I fear, is that tribes have one less horse to ride when from a business perspective they hadn't been left many to begin with.

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Brexit and the Loss of Faith

by John Aquino on 04/13/19

Brexit (British exit from the European Union) is, to me, reflective of anger by those who feel ignored and abandoned by governments and those around them, of suspicions by those who, while they feel neglected, others, not always like them, are prospering; of a yearning for a national pride some people feel has waned; and, most especially, of a loss of faith. My thoughts have been assisted by those of (probably) William Shakespeare, T.S. Eliot, and Matthew Arnold.

There are signs of the same feelings in European countries other than the UK. I also have friends in the UK who have told me that the 2016 and 2018 U.S. elections are evidence of this as well.

In March 2016, I was covering the biotechnology/pharmaceutical and medical device industries for Bloomberg BNA (now Bloomberg Law). I heard from UK contacts of their concerns about the Brexit vote that was scheduled for June 26 that, if passed, would require the UK to leave the EU and that, my contacts felt, would damage UK biopharmas and medical device companies and medical research. When I interviewed executives and researcher, their predictions were that if voters supported the referendum, which, at the time, they thought unlikely, the result would be almost apocalyptic .My article is at https://www.bna.com/uk-leaving-eu-n57982069206/ .

On the morning of June 26, I woke up at 4 a.m. ET, turned on the television, heard that the vote had supported Brexit, and called for my prearranged UK interviews. Their reactions were different from those I talked to in March, perhaps indicating a fear of causing a panic. The British biopharma industries would survive, and medical research would continue to lead Europe, they said. My article is at https://www.bna.com/brexit-uk-may-n57982075197/

For all the courageous talk of three years ago, as of March 11, 2019, the European Medical Agency, the European equivalent of the Food and Drug Administration and which was based in London, is now located in Amsterdam, which has both symbolic, employment, and strategic implications for the UK. Estimators of the effect of Brexit on the biopharma and medical device industries and on medical research confess uncertainty because the effect is dependent on the negotiations and agreement of the withdrawal, which have been dragged out until at least October 2019. Uncertainty scares investors away, which dries up innovation. And this same uncertainty has affected most other UK industries, as well as the relationship between England and Scotland, Wales, the Irelands, and the rest of Europe. Many of those who voted for Brexit are admitting that they didn't anticipate the implications. But suggestions of a re-vote have been quashed.

When we have spoken with friends from England and have raised the issue of Brexit, several of them have taken the same approach, with just a touch of "misery loves company": you in the U.S. are going through the same thing with President Trump--a call to nationalism, a fear that immigrants are stealing jobs and resources, and a desire for laws that would restrict U.S. entry. At the same time, as I have written in this blog, the Catholic Church is in crisis over its handling of the priest pedophile scandal. Overall, there is a loss of faith in the U.S., of faith in those in authority, the government, the Catholic Church.

When I think of concern about immigrants flooding the country, I recall the prejudice against our Italian and Irish ancestors my wife and my parents told us about. I remember a passage in the unfinished 16th century manuscript play Thomas More that is often attributed to William Shakespeare where More deals with a mob demanding the expulsion of immigrants: from England

Grant them removed, and grant that this your noise

Hath chide down the majesty of England;

Imagine that you see the wretched strangers,

Their babies on their backs and their poor luggage,

Plodding to th' ports and costs for transportation,

And that you sit as kings of your desires,

Authority quite silent by your brawls,

And you in ruff of your opinions clothed;

What had you got? I'll tell you: You had taught

How insolence and strong hand shall prevail,

How order shall be quelled; and by this pattern,

Not one of you shall live an aged man,

For other ruffians, as their fancies wrought,

With this self same hand, self reasons and self right,

Would shark on you, and men like ravenous fishes

Would feed on one another.

Thinking of the dream of a unified Europe and of a desire for a restoration of nationalism, I remember reading a passage from a speech given by the U.S.-born/England residing poet and playwright T.S. Eliot that he gave in 1951 (The Complete Prose of T.S. Eliot, Vol. 7, Johns Hopkins University Press, 2019): "It seems to me on the whole [to be] a very good thing that each people, in a family of nations such as Western Europe, should regard itself in some respect as superior to all others. This makes for good and even affection relations....In short, it is not only not true that to be a good European it is necessary to be less an Englishman, or a Frenchman, or any other nationality; it is also not true that to be a good European one must have equal and impartial affection for every other European country." It seems to me to be a reasonable approach to current concerns, whatever the country is.

Meanwhile, we must deal with this loss of faith. As Matthew Arnold wrote in "Dover Beach" about the ebbing "Sea of Faith," we must be "true to one another" as we stand "on a darkling plain/Swept with confused armies of struggle and flight/Where ignorant armies clash by night."

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Catholic Church Scandal: With Work Comes the Healing

by John Aquino on 04/01/19

I have written reactions in this blog to the scandal in the Catholic Church about accusations that priests over the years had sexually abuse young men and children and that their supervisors had covered it up. On Sunday, March 31, there was either a coda or a new chapter.

Cardinal Donald Wuerl has been the Cardinal Archbishop of Washington since 2006, having previously served as bishop of Pittsburgh. He succeeded Cardinal Theodore McCarrick in the Washington, D.C. archdiocese, who was removed from public ministry on June 18, 2018 as a result of accusations of abuse that a review board of the Archdiocese of New York had found credible. (On February 16, 2019, the Vatican announced McCarrick had been defrocked). A grand jury report on the priest sexual abuse in Pittsburgh that was released August 14, 2018, implicated Wuerl, not in the abuse but in the cover-up. The report did note that Wuerl had often been proactive in dealing with reports of sexually abusive priests and in one instance traveled to Rome to insist that a priest be stripped of priestly duties even after the Vatican ruled his duties be restored. But in other instances, Wuerl was reported to have allowed those accused to remain priests, decisions that were based on psychological evaluations that it would be appropriate for the priests to continue in their duties. Wuerl responded that he had trusted in the science and the science had been wrong. Pope Francis accepted Wuerl's resignation on Oct. 12, 2018, which Wuerl had previously, and routinely, submitted in 2015, and on April 4, 2019 the Catholic News Agency announced that Pope Francis had appointed Archbishop Wilton Gregory of Atlanta as the next Archbishop of Washington, D.C.

A friend of mine told me a story about how he had gone to Cardinal McCarrick and asked him to pray for someone close to him who was seriously ill. McCarrick took my friend to a private room, and they knelt together and prayed together. My friend also asked Cardinal Wuerl for his prayers who, gesturing broadly to priests who were members of his staff and standing near, said that "all of us will pray." The contrast was between McCarrick's personal response and Wuerl's more general, more abstract one. The two men had different styles: McCark's more personal, Wuerl's more objective, logical. Of course, one could argue that McCarrick's personal, one-on-one approach may have left him open to problems in certain circumstances.

Cardinal Wuerl continued as Archbishop of Washington until his replacement took over and mostly stayed out of the public eye. Every year of late, a recording of his resonant voice asking for contributions to the needy has been played during Sunday masses in the archdiocese at the beginning of the year. But this March, a recording of one from one of the auxiliary bishops was played instead. But on Sunday, Cardinal Wuerl celebrated Mass in honor of the work done by Catholic health professionals and spoke at the reception afterwards. In his remarks, he applauded the work of the professionals being honored and analogized what they do to the Church scandal. He said that in medicine there is diagnosis, treatment, and continued monitoring. The church had diagnosed the "illness" two decades ago, he said, alluding to when the scandal broke in 2002. We have been treating it, he said, and things are better. But we need to monitor and make sure the illness doesn't reoccur. He prayed that the bishops would continue to monitor. "The ordinary work of the Church goes on, the work of the lay women and lay men goes on, and with that comes the healing, with God's grace," he said.

The remarks reminded me of the contrast between Cardinal McCarrick and Cardinal Wuerl in response to my friend's request for prayers. Wuerl's provided a generalized account of what had happened. And yet, when he had finished, the audience, members of an organization for which Wuerl had been a frequent celebrant at masses, a homilist, and a lunch speaker as well as a sponsor, stood up and applauded, long and loud, honoring the memory of his good works. The event ended, and the group of dedicated Catholic laypersons and religious left to do the more work.

Pope Francis'selection of Archbishop Gregory is significant. Gregory, as president of the U.S. Conference of Catholic bishops,

chaired the 2002 meeting in Dallas addressing the conference at which the church set the standard of "zero tolerance" of priest sexual abuse.He will also be the first black archbishop of Washington. With the new archbishop appointed, Catholics in the Archdiocese of Washington and Catholic throughout the world will continue to struggle with what has happened, and the work of the church will somehow go forward.

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