<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:95099.wais]
S. Hrg. 108-548
S. 2349: THE PLAYWRIGHTS LICENSING ANTITRUST INITIATIVE ACT:
SAFEGUARDING THE FUTURE OF AMERICAN LIVE THEATER
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 28, 2004
__________
Serial No. J-108-71
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio,
prepared statement............................................. 35
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 40
Kennedy, Edward M. Kennedy, a U.S. Senator from the State of
Massachusetts.................................................. 3
prepared statement........................................... 42
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 45
Leahy, Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont........................................................ 7
prepared statement........................................... 47
WITNESSES
Berlind, Roger, Producer, Berlind Productions, New York, New York 13
Miller, Arthur, Playwright, Roxbury, Connecticut................. 6
Schoenfeld, Gerald, Chairman, League of American Theaters and
Producers, and Chairman, The Shubert Organization, New York,
New York....................................................... 9
Sondheim, Stephen, Composer and Lyricist, New York, New York..... 15
Wasserstein, Wendy, Playwright, New York, New York............... 11
SUBMISSIONS FOR THE RECORD
Berlind, Roger, Producer, Berlind Productions, New York, New
York, prepared statement and attachment........................ 28
Dramatists Guild of America, Inc., New York, New York, statement
and attachment................................................. 38
Miller, Arthur, Playwright, Roxbury, Connecticut, prepared
statement...................................................... 48
Norman, Marsha, Vice-President, Dramatists Guild of America,
Inc., New York, New York, statement............................ 51
Schoenfeld, Gerald, Chairman, League of American Theaters and
Producers, and Chairman, The Shubert Organization, New York,
New York, prepared statement................................... 53
Sondheim, Stephen, Composer and Lyricist, New York New York,
prepared statement............................................. 62
Sweet, Jeffrey, Playwright, Chicago, Illinois, statement......... 64
Wasserstein, Wendy, Playwright, New York, New York, prepared
statement and attachments...................................... 67
THE PLAYWRIGHTS LICENSING ANTITRUST INITIATIVE ACT: SAFEGUARDING THE
FUTURE OF AMERICAN LIVE THEATER
----------
WEDNESDAY, APRIL 28, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:13 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Leahy and Kennedy.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Good afternoon and welcome to today's
hearing on the Playwrights Licensing Antitrust Initiative Act,
or PLAY Act. We have a tremendous panel of witnesses and very
interesting topics. I am truly excited to hear the testimony
here today.
Today, from our left to right, we have the famous Arthur
Miller and Stephen Sondheim. All of these people are famous. We
have Roger Berlind on that side, Wendy Wasserstein, Gerald
Schoenfeld and, of course, as I mentioned, Arthur Miller. This
is an absolutely incredible panel of Broadway's finest, all
side-by-side by Sondheim. Hey, that almost sounds like a song.
[Laughter.]
Chairman Hatch. As an initial matter, I understand that the
word has gotten out that Senator Kennedy and I are rehearsing a
song from the musical ``Gypsy.'' We will be performing it at a
benefit gala this Friday at Ethel Kennedy's home.
One of my more enterprising staffers suggested that we
could raise some money by selling a video of our performance.
He went on to suggest that we could make more if we charged
extra for a version of the video without any audio. I would
like to take this opportunity to publicly wish him well in his
job search.
[Laughter.]
Chairman Hatch. But, seriously, I hope that both our duet
and future Committee action on this bill will be more
harmonious than some of the recent debates we have had in the
Judiciary Committee.
The purpose of today's hearing is to discuss a bill that
Senator Kennedy and I have introduced to help ensure the
continued vitality of live theater in America. I know that I am
not going to be able to match the eloquence and incredible
experience of our witnesses, so I will keep my remarks brief.
I have come to believe deeply that the future quality of
live theater depends on maintaining the artistic independence
and individual expression of dramatists, while giving them a
greater voice in the terms on which their works are produced.
Due to the interaction of Federal labor, antitrust and
copyright law, the dramatists and their voluntary peer
organization, the Dramatists Guild of America, have been
hampered, in their view, in acting collectively in their
dealings with highly organized and unionized groups, such as
actors, directors and choreographers, on the one hand, and the
increasingly consolidated producers and investors on the other.
As a result, playwrights, who are frequently at a substantial
bargaining disadvantage, are forced to accept contracts on a
take-it-or-leave-it basis. At least that is the allegation.
I believe that if we truly want the next generation of
American dramatists to flourish, we will need to give them a
more organized voice on Broadway. The PLAY Act is a narrow
measure that will allow playwrights, composers and lyricists,
through either the Dramatists Guild or any other voluntary peer
organization, to act collectively in dealing with other
industry groups that operate both under and behind the bright
lights of the American stage. In other words, it would permit
these artists to sit down with their creative colleagues for
the purpose of negotiating, adopting and implementing updated
standard form contract terms.
Importantly, the bill covers only the adoption and
implementation, and not the collective enforcement, of an
updated standard form contract. Thus, it would merely allow
dramatists to replace the terms of the current standard
contract, which I am given to understand has remained virtually
unchanged for several decades, with amended terms that reflect
the changing business and artistic landscape on Broadway.
My hope is that the basic ability to update the standard
form contract, as well as provisions ensuring that certain
artists' rights are respected in the production of their plays,
will encourage young, struggling playwrights to continue
working in the field and ensure the continued viability and
vitality and vibrancy of American live theater.
As a longtime enthusiast of theater and a lyricist myself,
I am proud to sponsor the PLAY Act and would encourage my
colleagues to join our efforts. I would also like to commend my
friend, Senator Kennedy, for his leadership on this issue, and
I thank other colleagues on the Committee in advance for their
interest and willingness to be convinced that we should act
favorably on this legislation.
[The prepared statement of Chairman Hatch appears as a
submission for the record.]
So at this point, I will turn to Senator Kennedy, and when
Senator Leahy gets here, we will turn to him.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman. First
of all, thank you very much for having this hearing. It is
enormously important. I am going to comment on that.
You mentioned in your opening remarks that you were a
longtime lyricist, and many of us have had the good chance to
listen to your music and have suggested that you continue that
career and give up your current one. But we have been unable to
persuade you to do so.
Chairman Hatch. I will if you will put some of that Kennedy
money behind it. I think I would have a chance.
Senator Kennedy. You have been trying to get a hold of that
for a long time.
[Laughter.]
Senator Kennedy. Let me say it is a privilege to join with
Senator Hatch in sponsoring the Playwrights Licensing Antitrust
Initiative Act, and I look forward to today's testimony from
our distinguished witnesses about the impact of the bill on the
American theater community.
Our witnesses symbolize the highest level of achievement in
the arts, and we have proposed this legislation because of our
concern about the continuing erosion of support for the
uniquely important work that they do.
From the day he took office, President Kennedy made the
arts one of his priorities for the Nation. He wanted the arts
to be a part of our lives. Robert Frost was a major part of his
inauguration. And, later, in dedicating a library to Frost at
Amherst College, he said, ``The nation which disdains the
mission of art invites the fate of Robert Frost's hired man,
the fate of having nothing to look backward to with pride and
nothing to look forward to with hope.''
Clearly, we fall short on that mission in many aspects of
the arts today. The bill we propose deals with one aspect of
the issue, the need for greater support for the artists who
create the plays and musicals that are an extraordinary part of
the Nation's modern cultural life. This bill will provide
needed protections for those who create the plays and the
musicals that are such an important part of our Nation's modern
cultural life.
American theater has an unequaled and proud heritage. We
have been blessed with some of the finest writers of the age.
At the Kennedy Center, a celebration of the works of Tennessee
Williams is underway. Enthusiastic audiences are preparing for
new productions of ``A Streetcar Named Desire,'' ``Cat on a Hot
Tin Roof'' and ``The Glass Menagerie.'' Audiences return to
these modern classics time and time again because they so
magnificently capture the hopes and dreams that so many of us
share in our own lives, and speak to the tragedies we suffer as
well.
These plays and so many other wonderful American works of
art have enriched our lives immeasurably, and we need to
encourage similar eloquent voices to be heard in the future as
well. It may sound implausible to some, but the antitrust laws
in our modern economy stand in the way of that goal today. The
bill that Senator Hatch and I support will modify those laws
and enable playwrights to negotiate minimum compensation
packages as fair reimbursement for their work. The issue is
fairness and this change is overdue.
Currently, playwrights are prohibited from participating in
any joint negotiation for compensation or control of their
work. And because they are not members of a union, they must
negotiate individually with producers of their work. Even for
well-known playwrights, such negotiations are difficult. For
emerging authors, they can be impossible.
The legislation provides a way for playwrights and
producers to agree on a package that provides fair return on
the commercial use of their work, and I am hopeful the bill
will be enacted to permit such negotiations to begin as soon as
possible.
We are privileged today to have a very distinguished panel
of witnesses. Arthur Miller is in many ways the patron saint of
American theater. ``Death of a Salesman'' opened on Broadway in
1949, and he has testified only on rare occasions in Congress,
once at the infamous House Un-American Activities Committee and
again before the Senate to call for literary and journalistic
freedoms around the world. The fact that he is here today is a
tribute to the importance of this legislation for his
colleagues in the theater. He is widely recognized for his
principled and courageous beliefs, and it is an honor to have
him with us.
We also welcome Steve Sondheim, who is an icon of American
theater. He has collaborated with Hal Prince and Lenny
Bernstein and our most gifted playwrights to create a body of
work that includes ``Sweeney Todd,'' ``Sunday in the Park with
George'' and ``West Side Story.'' Welcome.
We also welcome Wendy Wasserstein, who has won critical and
popular acclaim for her works, and also for her leadership in
introducing theater to public school children in New York City.
She is a visionary writer and a compelling artist, and we are
honored to have her with us.
It is also a privilege to have with us Gerald Schoenfeld,
who is Chairman of the League of American Theaters and
Producers. We look forward to his testimony and his point of
view on the bill. Thanks also to Roger Berlind for being with
us. Mr. Berlind is a successful businessman and a producer, and
we are grateful to him for coming today.
I especially commend Senator Hatch for convening the
hearing. There are so many issues before Congress that it is
not always easy to provide appropriate attention to these
important issues involving creative artists. We know that there
are major financial considerations involved in producing plays
on Broadway and in communities across the Nation. But we cannot
accept the continuing systematic erosion of the rights of the
geniuses who create the gold for the theater. This is our
bottom line, and it should be the Nation's bottom line on this
key issue as well.
Appropriate action by Congress can encourage new vitality
in theaters in communities across America. Young artists must
know that we respect their potential and we welcome their
creativity. Especially in difficult times like this, it is
essential to reemphasize that one of the founding principles of
our Nation is that there are better ways to change the world
than at the point of a gun.
I thank all of you for coming and look very much forward to
your testimony.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Senator Kennedy.
When Senator Leahy arrives, I will interrupt whoever is
speaking to allow him to make his statement or whenever he
wants to.
Senator Kennedy has introduced the panel, but I am going to
do it again because it is that important. Turning to today's
panel, most of our witnesses need no introduction, so I will
keep this short.
Our first witness is Arthur Miller, the widely acclaimed
playwright best known for authoring ``Death of a Salesman,''
for which he won a Pulitzer Prize, and ``The Crucible,'' which
received a Tony Award. It is difficult to think of a more
distinguished American playwright living today. If I am not
mistaken, this may be the first time he has testified before
Congress since the McCarthy hearings.
Mr. Miller, we want to thank you for being here. We know it
has been an effort to be here and we appreciate it. I feel
certain that you will find this venue a lot more hospitable
than perhaps the last time around.
Next, we will hear from Gerald Schoenfeld--he will be
witness number two--who is the Chairman of both the League of
American Theaters and Producers, and the Shubert Organization.
Mr. Schoenfeld has had a distinguished career both in the law
and in the theater industry, and I certainly look forward to
hearing his views as well.
After Mr. Schoenfeld, we will hear from Wendy Wasserstein,
another acclaimed playwright.
Wendy, am I pronouncing that right--Wasserstein?
Ms. Wasserstein. Yes.
Chairman Hatch. Wendy is the author of ``The Heidi
Chronicles'' and the first woman to win both a Tony Award and
the Pulitzer Prize in the same year for drama.
Next, we have Roger Berlind. I have been absolutely amazed
at how many productions you have been responsible for. I think
everybody is in your debt.
He is a theatrical producer who has achieved both
commercial success and tremendously broad respect for his work
on Broadway. His Broadway productions have won a total of 62
Tony awards for hits such as ``Amadeus,'' ``Kiss Me Kate'' and
``City of Angels,'' just to mention three, and there are so
many others that I wish I could take time to mention.
He is the principal of Berlind Productions and an outside
director of Lehman Brothers, which indicates to me at least
that he probably knows a thing or two about business. And I can
understand where you have enough money to be able to risk on
some of these ventures.
Last but certainly not least, we will hear from the widely-
celebrated composer and lyricist Stephen Sondheim, who is know
for, as Senator Kennedy has said, works such as ``West Side
Story,'' ``Sweeney Todd'' and ``The Assassins,'' just to
mention a few. He has received numerous Tony Awards, as well as
the Pulitzer Prize for Drama for ``Sunday in the Park with
George.''
You could go on and on on every one of these biographies,
but we are just tremendously pleased that you would take time
to be here in the interest of, I think, especially young
creative geniuses. Most of you are going to be successful no
matter what happens, but you are here testifying for young
creative geniuses, and the businessmen are testifying on how to
make this even better.
So we are grateful to have all of you here and we will
begin with Mr. Arthur Miller first.
We will turn the time to you, Mr. Miller.
STATEMENT OF ARTHUR MILLER, PLAYWRIGHT, ROXBURY, CONNECTICUT
Mr. Miller. I am very grateful for the chance to talk to
you people. I think it is a wonderful thing that you are trying
to do. I thought, instead of reading my statement which is
available to you, that I would tell you a personal experience
which indicates the baseline of the Dramatists Guild's attempt
to regularize the life of the playwright.
Way back in 1940-something, I wrote a novel called Focus,
and a then-famous Broadway producer named John Golden--there is
still a Golden Theater on Broadway, which was his theater--
called me and asked if I would come and see him to make a play
out of this novel. I went down to Broadway, and above the
theater he had this gigantic office with a barber chair and a
piano and numerous photographs of himself with President
Roosevelt and Mrs. Roosevelt. He was a very famous fellow.
We talked a little bit about my novel. I couldn't imagine
how to make a play out of it, but I thought I would talk to him
anyway. Then he left me for a moment. He was in his 80's and
had been producing plays for I don't know how long, more than
half a century.
While he was gone, I noticed there was a bookcase full of
books in leather bindings with gold leaf, and I got up and I
took down one of the books and opened it up and it was called
John Golden's Plays. There were about, I don't know, maybe 50
such books, and I leafed through a couple of them.
And then he came back and I said, you know, Mr. Golden, I
never knew you were a playwright, because on the title page it
said John Golden and Joe Smith, or John Golden and Ralph
Meyers, or something. He said, oh, I am not a playwright, but
those are my plays. I said, well, are you then listed as an
author? Yes?
I said, well, how does that work? He said, well, I buy
them. I said, I see, and I said, then they belong to you? He
said yes. He couldn't even understand why I was questioning
him. And I said, then do you make changes in these plays? Oh,
yes, whenever I feel I should, I change things.
And my hair stood up, and I thought here is some poor
playwright who spent a year or two or three, or whatever,
writing a play and he sells it to this man, who owns the
material and could change it any way he likes.
And I said, what do you pay for a play? He says, well, that
depends, of course; if it is a new writer, $500,000, something
like that. And I said, you get all the rights, then? He says,
oh, yes. Including the film? Yes. He says, I have to pay more
if it is a well-known writer.
It was years later that I joined the Dramatists Guild with
that in mind. That is the end game, that is the baseline,
because an individual writer has no power on the economic
stage, excepting by withdrawing his work. And a lot of writers
who are young people can't afford to withdraw their work. They
may have put in a long spell of work and are helpless,
basically, before the economic situation.
So I won't belabor the point, but any help that we can get
to equalize this situation would be much appreciated. I think
it would help revive the idea of playwriting. Formerly, the
playwright was the king of the hill. He is now bringing up the
rear because he has no clout, no economic clout, especially if
he is starting out.
I commend you for paying attention to this problem. I think
in the long run our theater will benefit from it because it
will create a kind of confidence on the part of writers that
they can get a fair shake because, as you know, you can write a
television show in a day or a week and make more than the
playwright generally makes in a season. The same thing for
films.
We are up against terrible odds, and I would hate to see
this art, which is one of the oldest arts known to man,
disappear, as it is, I think, doing in New York. If I am not
mistaken, there is one play on now on Broadway. That is not
enough.
So thank you again for allowing me to speak, and I will
just add for this occasion the end of this statement. The
legislation that the Chairman and Senator Kennedy have
introduced is not intended to change the laws of economics. It
simply says that playwrights should have a seat at the table.
Failure to pass the legislation will continue the unfair
bargaining situation that the playwrights find themselves in,
and not only will the playwright and the theater suffer, but
society as a whole.
Thank you very much.
[The prepared statement of Mr. Miller appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Mr. Miller. We appreciate
having your testimony.
I am going to turn to Senator Leahy now for his opening
remarks, and then we will go to you, Mr. Schoenfeld.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman. I want to
thank you and Senator Kennedy. You have brought the Broadway
stage into the Judiciary Committee hearing room.
I would tell all of you this is not really the crucible
that some might think it would be. We actually are interested
in what you have to say.
I couldn't help but think, Mr. Miller, that you could give
a lesson to a lot of the professional testifiers who come here.
I was at an Appropriations Committee meeting this morning and
we had several people with long statements which we had all
read, and they proceeded then to read them as fast as they
could to make the light. And I think what you are doing is a
lot better. You actually made us listen, which is not always
easy to do, but then Mr. Sondheim and Ms. Wasserstein certainly
know how to do that, too, and Mr. Schoenfeld and Mr. Berlind, I
am sure, will.
We tackle a lot of intellectual property questions in this
Committee. We usually do it in a bipartisan way. I know
tomorrow's markup agenda, Mr. Chairman, has about a half dozen
IP bills on it. They deal with copyright and patent problems,
and come up with a new technology and distribution method.
But the playwright's question is a longstanding one. It is
not one of these things that suddenly occurred because of the
digital way of distributing matters. Mr. Sondheim, I know the
matters you worry about when people can download music easily,
and so on.
I love live theater. One of my regrets was not seeing Brian
Dennehy play in ``Death of a Salesman.'' I have known him for a
number of years and I would have loved to have seen that
opening scene when somebody his size comes in and slams down
the suitcases.
Mr. Sondheim, I don't mean to be putting all of this on Mr.
Miller. I have been entertained so much by yours. And I will
stop at this point because I am going to leave people out.
I just love going to the theater. I remember one time
within 2 days I had gone to a production of ``Beauty and the
Beast'' and the next night to Patrick Stewart doing ``A
Christmas Carol'' on a virtually bare stage, and both were
fascinating.
I am a proponent, as my fellow Senators know, of the new
technologies which are making audio-visual works available at a
higher quality and much lower price to a far greater number of
people than ever before. I am interested in preserving and
promoting the unique and wonderful experience of live
productions of opera and of community theater. My wife is on
the board of the Washington Opera. I see some operas I don't
like and I see a lot of operas I do like, but I love the fact
that it is live. I think the best of the Internet age can
coexist very well with what we have been doing on stage since
the time of the Greeks.
I am always very cautious about antitrust laws. They were
designed to ensure that competitive marketplaces could operate
without undue pressure. In large part, they have been
effective, but I do recognize that markets can fail and
adjustments sometimes must be made that recognize the
imbalance. Maybe this is such a case. I don't know. I want to
hear more about the situation to make that determination. I
have also asked the Department of Justice to share with us the
views of its Antitrust Division on this proposal.
We are a fortunate Nation to have so many wonderful,
wonderful writers and wonderful artists. But I also want to
make sure of the incentive for them to continue; that somebody
who is in high school now and has a talent will continue with
that talent as they go on so that all of you will have the
benefit of them, whether you are running the theater or
producing a play or writing it.
So, Mr. Chairman, that doesn't answer all the questions and
I have no idea what I am going to do on this legislation, but I
do think what you and Senator Kennedy are doing is extremely
important and I am glad to be here.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Well, thank you so much, Senator.
We will turn to Mr. Schoenfeld at this point.
STATEMENT OF GERALD SCHOENFELD, CHAIRMAN, LEAGUE OF AMERICAN
THEATERS AND PRODUCERS, AND CHAIRMAN, THE SHUBERT ORGANIZATION,
NEW YORK, NEW YORK
Mr. Schoenfeld. I, too, want to thank you for the
opportunity of being able to testify here today, and I hope
that I will be able to put the matter before you in the
perspective of the Broadway theater as it is today and in the
recent years.
The Shubert Organization is the owner and operator of 20
first-class, legitimate theaters and one off-Broadway theater
in the United States, located in the cities of New York,
Washington, D.C., Philadelphia and Boston. It is also a co-
producer of plays and musicals. Among its most recent
productions are ``Cats,'' ``Amour,'' ``The Heidi Chronicles,''
``Sunday in the Park with George,'' ``Passion,'' ``The Ride
Down Mount Morgan,'' ``Indiscretions,'' ``Dirty Blonde,'' ``An
Inspector Calls,'' ``Amadeus,'' ``The Grapes of Wrath,'' ``The
Life and Adventures of Nicholas Nickleby,'' ``Jerome Robbins'
Broadway,'' ``The Most Happy Fella,'' ``Children of a Lesser
God,'' ``Bob Fosse's Dancin','' ``Whoopi Goldberg,''
``Pygmalion,'' ``Chess,'' ``Dreamgirls,'' ``Ain't
Misbehavin','' ``The Gin Game,'' ``A Streetcar Named Desire,''
``Lettice & Lovage,'' ``Skylight,'' ``Closer,'' ``Les Liaisons
Dangereuses,'' ``Amy's View,'' ``Little Shop of Horrors,''
``The Blue Room,'' and ``Dance of Death.'' Indeed, four of the
playwrights here have had their plays produced by the Shubert
Organization.
I have occupied my present position for 32 years and have
engaged in the negotiation of all of the various contracts
involved in theatrical production, as well as in the collective
bargaining agreements with the industry's unions and guilds. I
am personally familiar with the Dramatists Guild and many of
its members, and I have personal knowledge of the matters
hereinafter referred to.
Obviously, the Dramatists Guild must believe it is subject
to the antitrust laws of this country. Otherwise, it would not
be seeking an exemption from its provisions. It is also obvious
that an exemption from the antitrust laws is rarely granted. I
submit that the Guild is not an organization that is deserving
of exemption.
Contractual relations between legitimate theater producers
and Guild members, who are the writers of dramatic plays and
musicals, are incorporated in a suggested contract known as the
Approved Production Contract, the APC. Such has been the case
since 1985. Prior to 1985, an antecedent agreement
incorporating many of the same provisions was promulgated by
the Guild as a mandatory rather than suggested contract, and
was known as the Minimum Basic Production Contract.
Now, the APC sets forth minimum terms and conditions
regarding the production of plays and musicals written by Guild
members. These terms, among other things, relate to fees,
advances against royalties; territorial restrictions; and
participation in subsidiary rights, such as stock and amateur
performances, motion picture, television and radio
performances, and foreign performances both in the English and
foreign languages.
But the APC is a license agreement which grants the
producer the right to produce the play as written by the
dramatist, without any right to make any changes of any kind in
the text, lyrics, or music. It also grants the dramatist the
right to approve the director, the cast, the designers and all
other creative elements of the play, such as the scenic,
costume and lighting designers. The territory granted by the
license is restricted to the United States, Canada and the
British Isles.
The APC also limits the period of time that the licensed
rights may be exploited by the producer, as well as the
duration of the producer's rights to participate in subsidiary
rights. The exploitation of all subsidiary rights is reserved
by the dramatist, as are all other rights not specifically
granted to the producer pursuant to the APC.
In the event that a play or musical is initially presented
in a non-profit or off-Broadway venue in the United States or
in a foreign country, the license agreement governing such
presentations usually contains a provision that in the event
the play or musical is thereafter presented as a first-class
production--that means on Broadway and other places in the
United States--it shall be subject to all of the terms,
covenants and conditions contained in the APC. Membership in
the Guild is a coveted status, since members will derive the
benefits of the APC.
Now, dramatists are represented by agents who conduct the
negotiations on their behalf. Certain negotiated provisions are
added to the APC, such as billing, per diems, travel
arrangements, accommodations, types of transportation, the
number of house seats, approval of the venues, managers, press
agents, attorneys, accountants, and certain additional
financial provisions.
Since the promulgation of the APC in 1985, and in order to
accommodate changing economic conditions involved in the
production of plays and musicals, a form of compensation for
royalty participants, such as the authors, the directors, the
designers and the producers, was created and is now known as
the Royalty Pool.
Now, the Royalty Pool, as distinguished from just getting a
share of the gross weekly box office receipts, provides for a
percentage of the weekly net profits to be allocated to the
royalty participants in the following manner.
The total of all of the royalty percentages is a
denominator of a fraction whose numerator is the percentage
paid to each royalty participant. So, for example, if the
royalty participants are to receive 35 percent of the weekly
operating profits and the total royalties amount to 15 percent
and the dramatist's royalty amounts to 6 percent, the dramatist
would receive 6/15ths of 35 percent of the weekly net profits.
The dramatists and all royalty participants are also entitled
to receive an agreed upon amount of money weekly for each
royalty percent, regardless of whether there is any weekly
profit.
Now, the Guild has unilaterally decreed that in no event
shall a dramatist receive less than a certain specified
percentage of the total weekly net profits, regardless of what
the dramatist might otherwise receive as a Royalty Pool
participant. Of course, this has an impact on the ability of
the producer to negotiate with other pool participants, since
they too expect to receive pari-passu treatment with the
dramatist.
Unfortunately, these provisions of the APC are not left to
negotiations between the agent and the producer. The ultimate
party that is granted the right to approve the terms and
conditions of the agreement negotiated between the producer and
the dramatist is reserved exclusively to the Guild.
The approval process is subject to what is known as the
certification process, pursuant to which the Guild must certify
that the APC, as negotiated at arm's length, conforms to the
minimum terms and conditions of the APC. If the Guild does not
certify, the APC provides the agreement between the dramatist
and the producer nevertheless may proceed, provided the
dramatist, simultaneously with the submission of the APC to the
Guild for certification, submits a letter of resignation to the
Guild.
This has resulted in a unilateral renegotiation of the APC,
compelling compliance with its provisions upon pain of
dismissal. I know of no agreement amongst producers regarding
the terms and conditions to be included in an APC.
In public offerings relating to the production of plays and
musicals, the significant provisions of a dramatist's agreement
are set forth in the offering documents. They demonstrate no
uniform provisions manifesting the existence of a conspiracy on
the part of producers. Indeed, all dramatists are not equally
talented. Yet, they must receive at least the same terms and
conditions of the APC.
The Guild and its members and their agents, by requiring
compliance with the APC and its certification process, have had
an impact upon the producer's ability to enter into negotiation
on equal terms with the Guild members. The Guild is not a labor
union and thereby exempt by statute from the antitrust laws. If
they are granted exemption, then all inventors, researchers,
painters, novelists and creators of literary property other
than employees for hire would also be entitled to exemption.
Suffice it to say the conduct of the Guild and its members
do not deserve an exemption, but they should continue to be
subject to the strictures of the antitrust laws. They are the
owners of their work and the copyright holder. To ask for
immunity is to seek a shield from both prior and prospective
antitrust law violations. If there are any restraints upon the
production of plays and musicals, they are imposed by the Guild
and its members and not by the producers or the venue
operators.
In addition, please accept an attached letter from the
League of American Theaters and Producers.
Thank you for your attention and your patience.
[The prepared statement of Mr. Schoenfeld appears as a
submission for the record.]
Chairman Hatch. Without objection, we will put that letter
as part of the record, as well. We will also put all full
statements in the record to make sure that this record is
complete.
We will turn to you, Ms. Wasserstein, at this point.
STATEMENT OF WENDY WASSERSTEIN, PLAYWRIGHT, NEW YORK, NEW YORK
Ms. Wasserstein. Mr. Chairman, members of the Committee, I
want to thank you for the invitation to appear before you
today.
It seems to me very fitting that we address here in the
Senate the power of the spoken word on stage and securing its
future. Politics and plays have a great deal in common. Through
the integrity and vision of the individual voice, they both
create an arena to examine and advance the national character.
In the theater, just as here, a well-crafted speech not only
inspires change, but reveals our sense of morals, justice and
ethics. As Oliver Wendell Holmes said, ``Eloquence may set fire
to reason.''
But the independent voice that makes writing for the
theater so compelling has become more and more endangered as
the productions of plays are increasingly dominated by
corporate interests. Moreover, the various individuals and
groups necessary to ensure the success of any production have
become increasingly organized. From the stage hands to the
actors to the musicians, the directors, the choreographers, the
hair stylists, the ticket sellers, to the press agents, all are
represented by unions and all are able to bargain collectively.
But, ironically, those of us who are the fundamental
creators are not able to collectively protect our words. I
remember when my play, ``The Heidi Chronicles,'' was
celebrating its second year on Broadway and we had a party in
the basement of the Plymouth Theater. All the props people,
stage hands, actors and producers came, and I thought to myself
we are here because I sat alone in my room and wrote a play. A
play always begins with the word, and yet the creators of those
words are not able to come to the table. The theater is a
collaborative art form, and yet we are not able to collaborate
in the future life of our plays.
Today, as my colleagues have pointed out, more and more
playwrights find themselves faced with take-it-or-leave-it
contracts and pressures on their artistic integrity. Think of
what the impact would have been to Arthur Miller's ``Death of a
Salesman'' if the producers had demanded that he change the end
of the play to have a happy ending. Imagine, for the sake of
selling tickets, if Eugene O'Neill had been persuaded to
transform the Tyrone family in ``Long Day's Journey Into
Night'' into a fun-loving Brady Bunch. It may sound absurd to
you, but the pressures on young playwrights are enormous and
they are increasing.
Your legislation, Mr. Chairman, rebalances the equation. It
does not force a producer to produce a play or pay a playwright
for something they did not write. What it does is allow
playwrights as a group to develop a standard form contract so
that our work, our copyrights, are respected throughout the
production of our work.
This legislation allows us to update the standard form
contract that was negotiated 17 years ago. Until now, under the
shadow of antitrust laws, we have been unable to renegotiate. A
lot of changes have occurred in the theater over the past 20
years and it is time that the standard form contract be updated
to reflect those changes.
Theater is a vital art form not only for its entertainment
value, but also for the creation of our National community.
Theater is the place where audiences learn to really listen and
consider without distraction. Theater also inspires and
challenges students unlike any other spoken art form.
A number of years ago, I began a program in New York called
Open Doors, in which practicing theater artists like the
director Hal Prince take a small group of public high school
students who have never been to the theater to eight plays over
the course of a year. What we have consistently found is that
the students felt that the theater was the medium, unlike film
or television, where they did not feel manipulated or spoken
down to.
Kimberly Ebanks, a student at DeWitt Clinton High School in
the Bronx, summed up our programs in a speech to New York City
high school seniors by saying, ``Seeing plays has changed me
from a student who believed that in order to be successful in
life, I just had to succeed at math and science. But life isn't
just about math and science. It is about hypocrisy, prejudice,
love, joy, compromise, hate and conflict. These are the things
that we don't examine enough in life, but we do examine it in
the theater.''
This legislation will ensure that the kinds of plays
Kimberly is describing can still be written by an individual
author and not tampered with for the purposes of commercial
success. It will also secure the protection of all playwrights'
words for future generations.
My colleague, Stephen Sondheim, began the Young Playwrights
Festival in New York. Every year, over 1,000 young playwrights
under 18 from around the country submit their plays. This
legislation will secure that the theater will remain a place
where they can bring their unique vitality and insight. With
this legislation, the privilege of writing for the theater will
continue to be granted to every playwright.
What unites all of us here today, Mr. Chairman, is that we
hope this legislation is approved. Without it, I fear that the
show will go on, but it will be a different kind of show
entirely.
Thank you.
[The prepared statement of Ms. Wasserstein appears as a
submission for the record.]
Chairman Hatch. Thank you so much. We appreciate your
testimony.
Mr. Berlind, we will turn to you now.
STATEMENT OF ROGER S. BERLIND, PRODUCER, BERLIND PRODUCTIONS,
NEW YORK, NEW YORK, ON BEHALF OF THE LEAGUE OF AMERICAN
THEATERS AND PRODUCERS, INC.
Mr. Berlind. Thank you, Mr. Chairman, Senator Kennedy and
Senator Leahy. I am Roger Berlind. I am an independent Broadway
producer. My theatrical producing career began in 1976. Since
then, I have produced or co-produced over 40 plays and musicals
on Broadway and many off-Broadway and regional productions, as
well. The Broadway productions have won a total of 62 Tony
Awards, including 12 for best production.
Some of these are ``Amadeus''; ``Nine''; ``Long Day's
Journey into Night''; ``City of Angels''; ``Guys and Dolls'';
``Hamlet''; ``Passion,'' by my friend, Steve Sondheim; ``A
Funny Thing Happened on the Way to the Forum,'' also by Steve;
a revival of ``A View from the Bridge,'' Arthur Miller's
wonderful play; ``Copenhagen''; ``Kiss Me Kate''; and
``Proof.'' This season, I co-produced the Pulitzer Prize-
winning ``Anna in the Tropics'' and the revival of ``Wonderful
Town.'' Several of my productions were actually in partnership
with Jerry Schoenfeld and the Shubert Organization.
Before I began producing, I was in the investment banking
business. My early partners included Arthur Carter, Sandy
Weill, Marshall Cogan, Arthur Levitt and Frank Zarb.
Through a series of acquisitions, we became a relatively
large company. I am still an outside director of one of our
acquisitions, Lehman Brothers Holdings.
I became a producer not because it was a wonderful
occupation for making money, but because I loved the theater,
and it is my experience that almost every independent producer
I know is besotted with a love of theater.
As I understand the proposed legislation, the playwrights
seek to be free from the restraints of the antitrust laws to
which the rest of us must adhere. I don't believe that would be
a good idea, not for competition, not good for the theater, and
ultimately not good for playwrights, particularly young
playwrights without a proven track record.
The essence of theatrical production is risk. There is
probably no more speculative venture, and having been involved
for much of my life on Wall Street, I know about investment
risk. The risk/reward ratio in theatrical production is not
enticing. We have a fiduciary obligation to our investors to
construct a budget that offers investors a hope of recouping
that investment and making a profit. The process begins with
the initial agreement to license the rights to produce.
I am told that the proposed legislation is designed to
permit playwrights and producers to get together in a Committee
of sorts to negotiate a standard form of license agreement for
licensing plays and musicals. While I know that may sound
reasonable, in practice it just won't work. The proposal
assumes that there are two positions that are quite opposed--a
producer position and a playwright position--and that they will
be engraved in stone. That is just not the case.
There are way too many variables, and at least from the
perspective of the producers we don't all agree on structure,
price or terms. Every show is different and we want the
flexibility to negotiate those things in each and every
different context we face.
It is just a fact that one might not structure the same
arrangement for a brand new, never before produced play by an
unknown author as for one of the distinguished playwrights
sitting here. That is not unfair. It is what allows the unknown
author to become known. If the proposal were enacted, instead
of a free market we would have a closed market with the
Dramatists Guild somehow becoming a gatekeeper for adherence to
pre-agreed terms.
That is what we cannot accept and that is why there are
more productions of plays by non-members of that organization
than by members. As you probably know, foreign authors are not
members of the Guild, with some exceptions, and revivals
generally are by authors who are not members of the Guild. Many
of them are deceased.
The bottom line is that authors are not our employees. They
own their works and we merely license the right to produce. If
authors act in concert to dictate terms, they would be
committing something akin to antitrust violations. A blanket
exemption would be unwarranted.
Producers are independent contractors. Authors are
independent contractors. Producers do not have and shouldn't
have an organization that promulgates minimum acceptable terms,
leaving authors in a take-it-or-leave-it position with no other
options. Neither should authors have such a crude advantage.
I must confess there is a disconnect in my mind between the
motives for the legislation and the desire to improve the lot
of young playwrights. If fair return implies a higher level of
compensation, I don't see how that would encourage the
production of more plays by young playwrights.
For an example, this year I produced a play called ``Anna
in the Tropics,'' by a young playwright named Nilo Cruz. I
picked it up from a production in Princeton and brought it to
Broadway. There would not have been a possible chance of it
happening if the Dramatists Guild APC had been applicable. We
worked out something that was fair in my mind and in the
author's mind and the author's representative's mind, and we
got a production up on Broadway and it won the Pulitzer Prize
before we even brought it in.
But it gave this young author an opportunity to be heard.
It made his reputation. There are going to be many productions
of ``Anna in the Tropics'' around the country this year and
next already scheduled. He came from nowhere and he was
produced in what the Dramatists Guild might consider a sub-
minimal contract, but it was terrific for the playwright
because he got a career and he is well worthy of it. That
ability to negotiate independently, I think, is critical for
young playwrights.
I thank you very much for your attention.
[The prepared statement of Mr. Berlind appears as a
submission for the record.]
Chairman Hatch. Thank you, Mr. Berlind.
Mr. Miller, i know that you have had the flu. So if you
need to leave at any time, we are just grateful to have you
here and have your written statement, as well as especially
your oral statement.
Mr. Miller. Thank you very much.
Chairman Hatch. So we are going to let you go. Is that
okay? Thank you for being with us.
Senator Kennedy. Thank you very, very much.
Chairman Hatch. We appreciate it.
We appreciate all of you being here. This is important and
I appreciate both sides of this issue. It is interesting to me,
and I am sure Senator Kennedy and Senator Leahy, as well. We
just appreciate having you all here.
Mr. Sondheim, you will wrap up. We will turn to you.
STATEMENT OF STEPHEN SONDHEIM, COMPOSER AND LYRICIST, NEW YORK,
NEW YORK
Mr. Sondheim. Thank you. Mr. Chairman, I was president of
the Dramatists Guild from 1973 to 1981 and am now a member of
its council, as is Wendy. I would also like to note that
joining us here today, although not at the witness table, are
John Weidman, the current president, and Marsha Norman, our
vice president.
The purpose of our being here is to ensure that we leave a
legacy of a vibrant theater world to the next generation of
playwrights. The Dramatists Guild is the only professional
association for playwrights, composers and lyricists. We work
to advance the rights of our more than 6,000 members.
Membership, incidentally, is open to all dramatic writers,
regardless of their production history.
The Guild is not a union, and because of our unique status
in the theater, we do not come under the protections of the
National Labor Relations Act. We do not necessarily meet the
definition of employee that would allow us to bargain
collectively, and that is what we are here to talk about, since
it is at the heart of our collective concern about the future
of the theater.
As you know, Mr. Chairman, I have been working for some
time with you and other members of Congress to promote this
legislation. I have walked the halls of Congress and met with
members and their staffs to highlight the problems in today's
theater. Your leadership on this legislation, along with that
of Senator Kennedy, its coauthor, is deeply appreciated, and we
are encouraged by the companion legislation which was
introduced in the House last Congress by Representatives Hyde
and Frank, legislation which will be reintroduced shortly. The
breadth of support for this legislation shows that it is not a
partisan issue confined by ideological boundaries.
Arthur Miller spoke eloquently about the importance of
theater to the Nation and I won't embellish on what he said.
But I would like to underscore his comment that we are not here
today speaking for our own interests. We are speaking for
others whose names may not be as well-known as ours. This may
sound altruistic, but I assure you it is not. Without them, the
theater has no future.
Like Wendy and Arthur, I have been fortunate enough to have
my work win critical acclaim, but if we and others like us can
use our success to ensure the opportunity for others, then we
truly will have spent our time here well.
In walking the halls of Congress during these past months--
and it is an awesome walk--I have learned that changes in our
laws do not come easily, nor should they. Especially in the
antitrust arena, change is very difficult to achieve.
Exemptions should not come easily. Yet, case precedent has
granted the same exemptions we seek to both choreographers and
scenic designers, who are permitted to own their own work and
bargain collectively.
I believe that playwrights, lyricists and composers should
be allowed the same opportunity, and that this proposed
legislation is necessary. Lest this seem to be an adversarial
issue with theater producers, I would like to quote to you a
letter written to the Chairman and Ranking Member in support of
this legislation by Harold Prince, my collaborator for many
years since ``West Side Story,'' our first venture together,
and a man who is generally acknowledged to be the contemporary
American theater's leading producer and director. As much as
anyone in today's theater, he understands both sides of the
issue, since he too is both employer and employee.
I quote, ``As things stand today, some of the great plays
and musicals that have not yet been written may never be.
Increasingly, up-and-coming playwrights face pressures that are
driving them to other media. Our core problem is to encourage a
return to the negotiation process. Hiding behind arguments
about antitrust prevents us from a practical confrontation.
Producers and playwrights are natural allies, or should be.
Before it is too late, we must save a vital resource of our
Nation's artistic life. I hope that your hearings will provide
the momentum to get us back to the table. It sounds
melodramatic--of course, I am in the theater--but time is
running out. It really is,'' end quote.
Since there are serious questions about coverage of the
Dramatists Guild under the NLRA, our ability to work
cooperatively and take collective actions on behalf of our
members might be subject to attack on antitrust grounds. A
standard form contract updating the one that was agreed to as
part of a consent decree more than two decades ago might be
unenforceable as violating the antitrust laws.
This is not just an economic issue, however. It is one of
intellectual property rights. I, like my colleagues here, have
often had to fight for these rights. For example, one show I
wrote called ``Merrily We Roll Along'' is a piece that goes
backwards in time. It starts with the end of the story and
scene by scene proceeds back to the beginning.
One producer tried to reverse the order of the play because
he believed it would be easier for the audience to understand.
Needless to say, it did not improve matters, but even if it
had, it was not the show we had written or intended to be
presented. Because I was a recognized name in the theater and
had a certain amount of what is known as clout, I was able to
protect the piece and stop the production, thus preserving the
integrity of my intellectual property. Not every playwright is
so lucky.
It is partly due to this collective ability of the
Dramatists Guild that those rights can be enforced. But under
the outdated contract we now have with theater producers, our
ability to negotiate realistically based on current market
factors and realities is limited.
As a creative artist in your own right, Mr. Chairman, you
understand how important an artist's intellectual property is.
A limited exemption to the antitrust laws, as your legislation
provides, does not choose sides. Rather, it will help create a
competitive marketplace where all interests can be
appropriately balanced. We all look forward to working with you
and the members of the Committee on this important legislation,
important not only to us writers, but to the future of the
American theater as well.
Thanks for listening.
[The prepared statement of Mr. Sondheim appears as a
submission for the record.]
Chairman Hatch. Well, thank you. We appreciate all five of
you being here today and it has been a really interesting
hearing to me.
Mr. Sondheim, let me just ask you this. When you were a
young writer--and it was years ago--how do you compare being a
young writer just trying to get a break compared to what young
writers trying to get a break have to go through today? Is it
the same?
Mr. Sondheim. Well, first of all, there were many more
productions in the old days or when I was young. There were
many more independent producers. Costs were much less, so there
could be more independent producers, as opposed to corporate
producers, because it costs so much money to put on plays and
musicals today. Therefore, as a young writer I got a much
better chance to have my work heard and produced than young
writers do today.
Also, when I started in the theater there was no such thing
as off-Broadway. So there was no other place to be heard,
except on Broadway, and that was both good and bad. That is the
essential difference. It is harder particularly for
playwrights, also for writers of musicals, but particularly for
young playwrights it is very hard to get work out there that
can be commercially viable and let them afford to write the
next play, because that is what it is about. Playwrights just
want to be able to afford to write the next play.
Chairman Hatch. You have collaborated closely with many
producers over the course of your career. Do you believe that
the proposed legislation would adversely affect the
relationship between producers and writers, including young
writers, in ways that some anticipate?
Mr. Sondheim. No, I don't, because it is a collaborative
process. It seems to me, as Hal says, the producers and
playwrights are the natural allies. They are the two who start
the process. The writer starts the process, as obviously the
only begetter. The producer is next in the process. It seems to
me that what we want is collaboration rather than a kind of
disintegration.
Chairman Hatch. Ms. Wasserstein, let me ask you, just how
extreme are the pressures on playwrights to accept a take-it-
or-leave-it contract that contains perhaps unfavorable terms?
And if you could, could you elaborate on the effect that these
contracts have on artistic independence and even the integrity
of dramatists?
Ms. Wasserstein. I think there is a lot of pressure on
young playwrights, especially as the venue becomes smaller and
smaller. If you think of it this way, there is, I believe, one
or maybe two new American plays on Broadway this season. So a
young playwright is really under a lot of pressure, saying,
well, if you want to get your play done, you have got to accept
this. Actually, by them being able to call the Guild and talk
to somebody, it gives them a bit of backbone to know that they
have right.
The other thing is that, artistically, the difference
between writing for theater and film or television, which is
all wonderful, has to do with intellectual property, so that no
word of a play can be changed without our permission. Once you
start writing film or television, it is completely different. I
think what we are talking about here is when those lines get
blurred.
To me, the Dramatists Guild and that fundamental right of
ownership of the intellectual property of your work is what
makes playwriting into the art form that it is. And the
pressure to lose that right, I really think will fundamentally
not only affect young playwrights, but it will fundamentally
change the art form.
Chairman Hatch. Let me go to you, Mr. Schoenfeld. Do you
believe that the proposed legislation would adversely impact
the profitability of stage productions? Or, in your opinion,
would the increased vitality and creativity that we hope will
result from our bill actually help the business end of these
productions in the long run? I think I know what you are going
to say, but I am not sure.
Mr. Schoenfeld. I hope I surprise you.
Chairman Hatch. I hope so, too.
Mr. Schoenfeld. Candidly, I don't know of any playwright
that has abandoned the theater under the circumstances that
have been described by the Guild. They leave the theater
because the advantages financially are much greater in
television and in movies.
When you are confronted with a contract that sets forth
what the minimum terms are, regardless of who the playwright
is, and that is the starting point for your negotiation, you
can only go in one direction and that is up. Human nature being
what it is, that is the direction that the agents for the
authors seek to achieve, although the original tenor, if you
will, of the litigation that was brought in 1982 was that the
dramatists would accept across the board, whether you were
Sondheim or Schaffer or Neil Simon or anyone else, those
provisions that were in the new APC.
Now, those provisions in the new APC are exceeded regularly
by authors. So we are put in a position now of how close can we
come to the minimum provisions that are in the APC. The most
frustrating unilateral thing that has happened is the
intervention by the Guild unilaterally in the Royalty Pool, a
term which we created or a device which we created to meet the
impact of inflation and the impact of a royalty on gross
receipts regardless of net profits. So out of sheer necessity,
we created the Royalty Pool. That was interdicted by the Guild,
providing that their members can receive no less than a certain
percentage of the overall net profits.
So this idea that we, the producers of shows today, are
strangling the creative marketplace is not evidenced by any
concrete examples that have been put before you today. And I
ask you, are you entitled to the same terms and conditions for
writing songs as Steve Sondheim is? Am I required to pay you
the same basic starting terms as I am with Steve?
Chairman Hatch. Are you implying that I am not as well-
recognized as--
Mr. Schoenfeld. I am implying that your body of work so
far--I hope that it will emerge and flourish, but right now
Steve has an economic advantage over you.
Chairman Hatch. You did good.
Mr. Berlind, my time is up, but let me just ask one
question so I cover the whole panel. Your testimony brought up
the financial risks involved in the production of a play or a
production in the theater. In your opinion, is there any reason
to fear that by allowing a collective negotiation of the
standard form contract, the balance between dramatists and
producers will be upset in favor of the playwrights in a way
that would give too much weight to the creative side of the
equation and unacceptably increase the already substantial risk
taken by producers?
Mr. Berlind. I think, Mr. Chairman, the playwrights would
not be concerned about this and this would not be the matter we
are dealing with today unless they felt that the economic
consequence of a new agreement would be more favorable. And
while that might not be applicable to the more established
playwrights, they are quite rightfully, I think, concerned with
the young, unproven playwrights and protecting their rights.
I don't know how we would go from where we are today to a
better economic opportunity for young playwrights with the
revision of those terms. The way young playwrights can prosper
is to get produced, and to get produced, we have to create an
economic model that allows for the possibility of a fair
return. The fact that it is a new playwright operates against
that concept because there is no name value in the playwright.
Our business is to get plays on to discover new works, and
I think we agree on that. How to get there is the open
question, and if whatever we agree upon can be shot down
arbitrarily by the Dramatists Guild, then there is no point in
even going into negotiation in the first place.
Chairman Hatch. I see.
Mr. Schoenfeld.
Mr. Schoenfeld. May I just add one other observation? Most
plays and musicals today originate elsewhere than on Broadway.
They are originating in non-profit regional theaters throughout
the United States. When a play originates there, there are no
strictures whatsoever in the negotiation between the author and
that regional non-profit theater.
Not only that, though, there are strictures put on there at
the place or origin on any producer who subsequently wishes to
take that play further. That venue gets a share of the
royalties. That theater venue is attached to that play on
Broadway, gets billing on Broadway, sometimes gets
participation in the author's subsidiary rights, and that share
of subsidiary rights is then sought to be imposed on the
Broadway producer.
So there are strictures in the pipeline. They are put there
in the beginning as a result of the agreement between the
author and the originating venue, and we become married to them
as a result of a negotiation to which we had no part.
Chairman Hatch. Thank you.
Mr. Sondheim. If I may add to that, the strictures are put
on by the producers at these venues, and understandably,
because they want to share in whatever profits for their own
theater so that they can afford also to put on more plays.
I would also like to point out that we all want to put on
plays, and the young playwright more than anybody. The young
playwright is therefore in the most danger of being taken
unfair advantage of. That is one of the reasons we are here, is
to protect the young playwright.
Chairman Hatch. Thank you.
Senator Leahy.
Senator Leahy. Thank you.
Let me follow up a little bit here. You noted earlier that
playwrights are put in these kinds of take-it-or-leave-it
contracts.
I have read your testimony, Mr. Wasserstein, and Mr.
Miller's, and I understand the concern there. I also, though,
always worry about creating any kind of an antitrust exemption.
I am reluctant to do so. I think Congress made a very bad
mistake, incidentally, in creating one for baseball. I think we
have had some real problems as a result. I think we ought to
get rid of the darned thing.
Do either one of you know of any specific instances where a
take-it-or-leave-it contract has forced a talented writer from
the theater? I mean, you have talked about the fact that
obviously some can make more money going off to write sitcoms
or something like that, but a lot of people have a great love
of the theater and stay there. But do you know of any instances
where these take-it-or-leave-it contracts forced them away?
Mr. Sondheim. Excuse me one moment, Senator.
I wanted to get a good, specific example from Marsha. There
was a musical of the movie ``Shane'' written by one of our
Guild members, Sarah Schlesinger, and she was told by the
producer that if she offered to sign a contract that had to
have Guild approval, they would not produce the play, and the
play was not produced. Marsha says there are 17 examples that
she can name of such a thing.
Senator Leahy. I should note for all of you--and Senator
Hatch may have already said this before I came in, but after
you get the transcript back, if you want to add to something or
you have a name or a date wrong, of course, you can do that. We
are not playing ``gotcha'' here.
Mr. Sondheim. No, no.
Senator Leahy. So if you want to add more, you can.
Mr. Sondheim. Well, one of the things I would just like to
say is that you asked about take-it-or-leave-it. The reason the
Guild was formed in the 1920's was because producers presented
playwrights with take-it-or-leave-it arrangements.
Senator Leahy. I am going to actually submit some
questions, but one I had was I understand that you have had the
sort of same standard form contract since 1982. Is that
correct?
Mr. Sondheim. Yes.
Senator Leahy. If you had a renegotiation of the 1982
standard form contract--and obviously a lot of things have
changed; Broadway or anywhere looks a lot different today than
it did back then--would that, in fact, violate antitrust laws
if you wanted to renegotiate that?
Mr. Sondheim. I don't believe so, Senator. But, of course,
I am not an expert on antitrust. I do know that what we want to
do is just be allowed to negotiate or to renegotiate.
Senator Leahy. Has anybody from the producers threatened an
antitrust question if you came back and said, look, we want to
renegotiate this 22-year-old contract?
Mr. Sondheim. I don't know. They did then, of course.
Excuse me. Marsha says they did it this morning.
Senator Leahy. Mr. Berlind, do you want to add something on
that?
Mr. Berlind. Yes, sir. The concept of take-it-or-leave-it
is really implicit in any negotiation. If both sides want to
accomplish something, they will come to an accommodation. If
one side wants more than the other, so much more that the other
party can't conform, then it doesn't happen. You could call
that a take-it-or-leave-it, but that is true of every
negotiation or any business. It sounds draconian, but it is--
Senator Leahy. Any reason why they couldn't renegotiate
their 1982 contract? If they all came together and said we want
to renegotiate the 1982 contract, is that a violation of the
antitrust laws?
Mr. Berlind. The problem with the 1982 contract is that the
take-it-or-leave-it was given to the playwrights by dint of the
certification requirement. Regardless of what the playwright's
wish might be--it might differ from the Dramatists Guild's
artificially-imposed conditions--the Dramatists Guild has the
ultimate say in approving that contract.
Senator Leahy. But would it violate antitrust laws if they
wanted to renegotiate the 1982 contract?
Mr. Berlind. Not wanting to renegotiate that. It doesn't
violate anything.
Senator Leahy. Mr. Berlind, there is only limited time. I
am not going to play word games with you. Please don't do that
with me.
Mr. Berlind. Sure.
Senator Leahy. If they came forward and said we want to
renegotiate that, is that violating the antitrust laws, in your
opinion?
Mr. Berlind. No, I don't think a renegotiation would
violate antitrust laws.
Senator Leahy. Mr. Schoenfeld?
Mr. Schoenfeld. I would like to differ. If producers got
together and agreed amongst themselves what terms they would
afford playwrights, I believe that would be violating the
antitrust laws.
Senator Leahy. Let me ask you this, Mr. Schoenfeld. Correct
me if I am wrong on this, but I understand that scenic
designers retain creative control over their intellectual
property. Is that correct?
Mr. Schoenfeld. Yes.
Senator Leahy. As do playwrights, but they are unionized.
Why shouldn't we allow playwrights the same status as these
designers; in other words, preserve their copyrights, but also
grant them the power of collective bargaining? The designers
have that power. Why not the playwrights?
Mr. Schoenfeld. Because under case law, they are deemed to
be employees, and consequently they have had the privilege of
forming a union and being exempt from the antitrust laws. The
ability to deal with a designer's work, make changes, of
course, with the consent of the designer--but the originating
structure, if you will, of the designer's work is participated
in directly by the producer and the director, and indeed the
author. So there is a degree of flexibility that does not exist
with the dramatist. I hope that distinction has been made clear
by me.
Senator Leahy. I understand what you are saying. We have to
make up our mind whether we agree with it, but I understand
what you are saying.
Mr. Schoenfeld. Let me say this. I can disagree with the
interpretation of whether or not those people are indeed--or
put it the other way; I can say that those people are not
entitled because they are independent contractors, but I have
not had the support, if you will, in the premise. But the
analogy that you make, as I say, is subject to the distinction
that I have tried to provide you with.
Senator Leahy. People disagree all the time. You are going
to be amazed to hear this, but there have actually been times
when Senator Hatch and I have disagreed.
Mr. Schoenfeld. Well, I suggested to Senator Hatch earlier
that he probably should have a guild for songwriters such as
himself where he would be able to get a minimum contract for
his work.
Senator Leahy. I think, Ms. Wasserstein, you wanted to say
something.
Ms. Wasserstein. I just wanted to say that the position of
the playwright is unique. I think in terms of antitrust,
because of our uniqueness, this is not precedent-setting. There
is a cloud over our negotiation in that we sit alone, we write
a play, and then to put on this play we go into a
collaboration. We are in a collaboration with the producers,
the designers, the directors, everybody. It is not like we
write a play and then we just submit it and go home.
You are there; you are there through all the rehearsals.
You have to sit through those previews. When those reviews come
out, you are there. So it is a very unique situation in terms
of intellectual property. We are the creators. It is our
copyright, but we are involved in a collaboration with all of
these artists. In fact, the play itself, as I said before,
would not exist without us.
So I think, therefore, this isn't precedent-making. It is a
unique situation and it has to do with creating, writing for
the theater, uniquely for the theater, not film, not
television. Therefore, it has to do with the future of the art
form.
Mr. Sondheim. I would also just like to add that Jerry is
right when he says that there is input into the scenic
designer's work by the director and the playwright. But he is
wrong when he says there is not exactly the same kind of input
put into the playwright's work, just the way choreographers
also own their own work and are both employers and employees.
They own their intellectual property, but they aware, if they
are any good, that it is a collaborative effort. I know of no
good playwright who doesn't collaborate in the same way set
designers do.
Mr. Schoenfeld. Senator Leahy, if I could make one post-
comment, I do a play on Broadway; I want to do it someplace
else. I can change the scenery, I can change the designs, I can
change the director. I can't make any changes in that play. I
am married to that. I am not married to anybody else.
Mr. Sondheim. You can make changes in the play if you talk
to the playwright.
Mr. Schoenfeld. I understand that kind of a unilateral
conversation, yes, I do.
Senator Leahy. I am intruding on Senator Kennedy's time and
he is senior to both of us here, so I don't want to do that
anymore. I will submit some questions, though, and I wish you
would look at them carefully. I do appreciate all of you being
here. I always wrestle with this question of any kind of an
antitrust exemption. I am not always sure we are dealing with
arm's length transactions, but I will read your answers very
carefully.
Thank you, Ted.
Chairman Hatch. Senator Kennedy, we will turn to you.
Senator Kennedy. Thank you very much. Just to come back to
what Mr. Sondheim said, I was just listening to our
introduction where we were talking with Roger Berlind about
``West Side Story,'' one of the great successes, and you could
mention many of them.
It is difficult, where you have Lenny Bernstein and
yourself and Mr. Berlind, that your people aren't working
together to try and make it a great play, a great musical. I
think many of us have seen all of those pictures at the
rehearsals, where virtually all of you are out there all trying
to work on a common purpose and a common design.
I imagine you are always looking at the reviews: the play
is too long, the language isn't good, all of these kinds of
things that come in. As a politician, you make a bad speech,
you have a bad day, and you want to try and get it right. You
are trying to all be part of a team on this.
It is extraordinary to me at the end of the day when you
consider that you have two ingredients here. You have one that
is going to be the producers and the other the creators, but in
the meantime all the other people get paid before you. I mean,
the actors get paid, the musicians get paid, the stage hands
get paid. The rental costs go up. The makeup people get paid,
the dressers get paid, the ushers get paid, security gets paid.
Everybody gets paid.
Yet, you are the essential, maybe the other end in terms of
the producers, but you are the essential; you are the one that
sits in that room and writes that first word. I mean, having
listened to all of it, it is difficult not to say at the very
end that you are getting the short end. I mean, that is just
the way it comes across.
You can take a hard position and say, well, look, we are
locked in and nothing can be changed or altered in any of
these, and every one of these other people have to work and we
have to risk. But everyone takes a chance on this. They are
risking, as well.
You could say, well, it is collective bargaining and the
definition of ``employee,'' and then you get to define
``employee'' under the law. What we are trying to do is find a
way where we can make sure that people that are going to be
creative, the younger people--and I have enormous respect for
all of you coming down here today. You didn't have to do it.
I have enormous respect for those who are in the creative
aspect because none of them had to do it. And around this town,
most people don't have that kind of an attitude. The fact that
they are here and willing to do it is enormously impressive and
important, and carries a lot of credibility, quite frankly. I
am sure that is true of our friends from the producers.
And that is the dilemma, it seems to me. This is not an
even balance. You can say, well, we can take this and we can go
to some other place; all of these people aren't going to get
employed and we can go to any other place. They are the ones
that are writing and that are creating, and it seems to me to
be a balance and they are pretty much at the short end.
You can look through to the final end about who gets paid.
The Royalty Pool is 35 percent of the weekly profits, and then
it is 6/15ths of 35 percent. This is a pretty thin reed on this
for people that have as much--you know, people who are creative
can be big losers, too.
Mr. Sondheim. Two years of your life.
Senator Kennedy. That is a big chunk of time and that is a
big loss, too. I think it does present a dilemma. We don't want
to get caught up in just these words that can be hidden behind.
I know people aren't looking for hiding behind them in order to
try and leverage a particular position. Maybe people are; maybe
people will be. I mean, they do that all the time around here.
But we ought to be able to get this so that we are not going to
lose that kind of capability.
Mr. Schoenfeld. May I just say one thing so I don't appear
to be put in the realm of somebody who is grasping here?
Senator Kennedy. Sure.
Mr. Schoenfeld. When we enter into the APC, we are required
and we agree to a substantial payment as a fee to the author in
the tens of thousands of dollars, and a substantial advance
against royalties to the author in the substantial tens of
thousands of dollars. So up front, that is the largest payment
made to anyone in the collaborative scheme.
Furthermore, if we don't exercise the option, we lose those
payments. So the other people are getting paid when the show is
being presented in the theater, as indeed the author is.
Certainly, the disparity between what the author receives and
what these other people receive is, I think, due recognition of
the author's contribution to the play, to the work, to it being
there, which I agree completely is the raison d'etre that we
are here today.
Mr. Sondheim. Well, we all agree that it needs to be
renegotiated, so let's renegotiate.
Senator Kennedy. I have been fortunate to have a very, very
good friend, as a matter of fact, someone that worked not on
this Committee, but on the HELP Committee for 10 years, and
went into producing and happened to get very lucky. He has just
made a very big chunk of change.
I think that we need more people that are going to be
involved in all this, in producing and getting more help and
assistance in terms of taking some chances with writers. I
think I would certainly be open to all of that kind of
consideration in terms of support. Other countries do a lot of
other things. I don't think the mood is probably there now to
try and do what they do in other countries.
I was very, very fortunate to know my son Teddy's roommate,
who was the screenwriter for ``A Beautiful Mind.'' He was a
classmate of my son Teddy's and now is making more money that
you can possibly imagine, a very talented, creative kind of a
person. He has talked to me about some of these things. He
comes up and visits with us. He is godfather to my grandson and
a very capable and wonderful, wonderful writer.
I hear from him exactly what I heard from Mr. Sondheim and
Mr. Miller and Wendy Wasserstein. I hear exactly the same kind
of thing. He has made it big out there and he is staying out
there. I am not going to bother you with personal stories. He
was out there and was sort of a wordsmith for some of the
productions for his classmates. Many of us have listened not
only to the other side of the table here, but also have been
listening to some of what is happening out there.
I want to thank to thank the Chairman. This has been very
informative and helpful. I think the Chairman would agree that
the best thing is to try and get all of you together and to try
and come up with something that we can work out and all work on
closely together.
Senator Hatch and I know we have been able to work together
and been able to get things done. We have worked together and
we have compromised and gotten things done. We have worked
together with groups that have gotten things done, and that is
the best way to try and get things done around here. But other
times, if there is unfairness, then we have to try and sort of
deal with those issues as well. We are hopeful that we can try
and do this, and do it right and well.
I want to thank the Chair. As the Chairman of the Judiciary
Committee, Orrin has a lot of things to do and he has spent a
lot of time on this.
Finally, I want to thank Wendy Wasserstein for all her work
on the arts.
Ms. Wasserstein. Thank you.
Senator Kennedy. That is a wonderful program.
Ms. Wasserstein. Yes, it is. It is a great program.
Chairman Hatch. Well, thank you, Ted.
I want to thank all of you for being here. As somebody who
has written music for 10 years mainly as an enjoyment,
something that is uplifting and helps me to tolerate serving on
this Committee with Senator Kennedy and Senator Leahy--
[Laughter.]
Chairman Hatch. It expands your mind and it keeps your
creative juices going. It helps you to be more empathetic.
There are so many advantages to writing music, but not all of
us can be a Stephen Sondheim. Now, I am aiming for that in my
spare time, what little I have.
But I do know one thing, that songwriters have a very, very
difficult time. I can name some of the greatest writers in this
country that barely get by. By the time they recoup from their
royalties what has been paid to keep them alive while they have
been writing, they really don't have an awful lot to show, some
of the best writers in the country. It is a tough way to make a
living. I think it is even tougher to make it into live
theater; I think much tougher than that.
I mean, for the short time that I have written music, I
have been fortunate to write with good people. I am certainly
not getting rich from it, but I will never forget when I got my
first royalty. It was, I think, $62 or something like that, and
I was an ASCAP national meeting, about 1,000 writers. I said I
just got my first royalty check for about 60 bucks, and I held
it up and the place went wild. I mean, they stood on the chairs
and clapped and cheered. And I thought, my goodness, they sure
treat us members of Congress nicely.
I sat down next Marilyn Bergmann and she said, Senator, the
reason they are so excited about your first royalty check is
that there are a lot of wonderful writers out there and hardly
any of them will ever get a royalty check.
Mr. Sondheim. But ASCAP is the protective organization for
all of us.
Chairman Hatch. It is the protective organization, but my
point is that I wish we could come up with some way that could
help people to be able to break through the difficulties in
making it, because I see some people who just give up who are
marvelous geniuses in music. I can imagine how much more
difficult it must be in the fields that we have been talking
about here today.
You business folks deserve a lot of credit for taking the
risks and doing the things that you do. On the other hand, I
don't see where you are going to be tremendously hurt if you
can negotiate a similar agreement.
Now, you need to write to me, Mr. Schoenfeld, and you also,
Mr. Berlind. We are open to your ideas, but it seems to me it
is not going to hurt you to work out an agreement that would be
applicable for the benefit of these young writers, as well as
older writers. We can opine up here all day long, but you are
the people who are the experts and I feel like we have been
greatly blessed today to hear from you real professionals and
it means a great deal to me.
We love what you do. We love the creativity. We know what
comes from it. We know the uplifting qualities for the most
part that theater has throughout America, we know what it has
meant to this country, and we want to keep you going. We want
to make sure that somehow or other there is going to be an
expansion of these creative rights in the future, and you have
got to help us to know how to do it. With all of the invasions
of privacy today and all of the ways of stealing and taking
advantage of artists and creative people, we have got to have
some help from you experts.
So, with that, we are grateful that you all took the time
to come here. I am grateful that my colleagues have been with
me here and we will see what we can do to resolve this matter.
Thanks so much.
The Committee stands adjourned.
[Whereupon, at 3:46 p.m., the Committee was adjourned.]
[Submissions for the record follow.]
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