The opinion of the court was delivered by: CHARLES S. HAIGHT, JR
In a Memorandum Opinion and Order dated November 27, 1990, this Court granted plaintiff Alice Childress summary judgment against defendants Clarice Taylor, Paul B. Berkowsky, The Moms Company and Ben Caldwell on the issue of copyright infringement. That opinion held that a stage play entitled "Moms," subtitled "The First Lady of Comedy," infringed plaintiff's copyrighted play entitled "Moms," subtitled "A Praise Play for a Black Comedienne." Both plays were about the life of Jackie "Moms" Mabley, a stage performer who died in 1975 in Harlem at the age of 82. Defendant Taylor starred in the infringing play. Defendant The Moms Company produced it. Defendant Berkowsky was general manager of The Moms Company. Defendant Caldwell was the author of the infringing play.
The parties disputed the form of judgment to be entered. I resolved those disputes in a Memorandum Opinion and Order dated February 22, 1991. That Opinion rejected Berkowsky's contention that he should not be included in the summary judgment in plaintiff's favor. Rejecting Berkowsky's contention, I said that there was "no basis in fact or in law to relieve defendant Paul B. Berkowsky from liability in the case or the sweep of any future judgment," concluding "that Berkowsky is liable as a contributory infringer." Slip op. at 3.
Following entry of summary judgment on liability against all defendants, they appealed on the ground that Childress and Taylor were co- authors of the copyrighted play, so that Childress had no viable claim for infringement. The Second Circuit affirmed the entry of summary judgment in plaintiff's favor. 945 F.2d 500 (2d Cir. 1991). Berkowsky did not appeal from this Court's conclusion that he was liable as a contributory infringer.
Thereafter this Court conducted a bench trial to determine the amount of plaintiff's damages. Counsel have submitted post-trial briefs and reply briefs. This Opinion constitutes the Court's findings of fact and conclusions of law under Rule 52(a), Fed.R.Civ.P. To the extent that the Court's recitations of fact in its November 27, 1990 Opinion furnish pertinent background, they are incorporated herein by reference.
For the past 35 years plaintiff has been represented by Flora Roberts, Inc. Flora Roberts, the principal of that agency, has been a literary agent specializing in dramatic literature for 40 years. Roberts has negotiated contracts for a number of significant Broadway productions, including "West Side Story," "A Chorus Line," and "Sunday in the Park with George." Since Roberts began to represent Childress, she has negotiated all of Childress's contracts for plays and books.
Defendant Clarice Taylor is a prominent African-American actress. She and Childress first met when they were both acting in the American Negro Theatre in the 1940's.
The idea for a play based on the life of Moms Mabley originated with Taylor. Taylor's interest in Mabley borders upon an obsession. Taylor testified that she "grew up" on Moms Mabley in Harlem. In 1982 Taylor had portrayed Mabley in a skit which was included in a stage production based on the story of the Apollo Theatre in Harlem, where Mabley had appeared. Preparing for that role, Taylor listened to her collection of Moms Mabley recordings, talked to anyone who might have met her, and became familiar with Mabley's walk and demeanor.
While she was appearing in the Apollo Theatre production, Taylor communicated with her friend Childress about doing a play on the life of Moms Mabley. Childress turned her down at that time.
Taylor's interest in Mabley was sufficiently well known that in late 1985 or early 1986 the producers at the Green Plays Theatre in Lexington, New York contacted Taylor and advised they had an opening for a play in their August 1986 season. The Green Plays producers asked Taylor if she could become involved in a play about Mabley.
Taylor again approached Childress, who this time agreed to work on a script of a play about Moms Mabley. Working against a tight six-week schedule, Childress wrote her play. She filed for and received a copyright for the play in her name.
Childress's play opened at Green Plays in August 1986. Prior to that time, Childress and Taylor had not entered into any firm arrangements. They had not exchanged draft contracts, although Taylor had paid Childress $ 2,500 before the play was produced at the Green Plays Theatre.
After the Green Plays production had run its course, Childress was approached by Stevie Phillips, who was employed by Universal Pictures, had previously produced stage plays (including "The Greatest Little Whorehouse in Texas"), and was related to Steven Foreman, the director of the Green Plays production. Phillips expressed interest in producing Childress's play. Childress said she was interested and referred Phillips to Flora Roberts, her agent. A meeting thereafter occurred involving Phillips, Childress and Taylor. Roberts testified (Tr. 11), and I find, that at that meeting Phillips refused to agree that Taylor play the leading part of Moms Mabley. Phillips also rejected a director that Taylor preferred. Phillips said to Roberts that she wanted to option the Childress play and go ahead with it. However, Childress preferred not to pursue this possibility with Phillips and Foreman, but rather to defer to Taylor's preferences, since, as Childress explained in her testimony, she had written The Moms Mabley play for Taylor to star in and produce.
Childress, represented by her agent Roberts, and Taylor, represented by her agent Scott Yoselow and an attorney, Jay Kramer, entered into prolonged and ultimately fruitless efforts to agree on the terms of a contract. No contract had been agreed upon when, in February 1987, with both parties' consent, the Childress play was produced with Taylor playing the role of Moms Mabley at the Hudson Guild Theatre. Childress added some new material to the script, for which she also received a copyright. The Hudson Guild production of the Childress play ran from the beginning of February through the end of the first week in March, 1987. The playbill credited Childress as the author of the play. The play and Taylor's performance received favorable reviews from critics including those writing in the New York Times and the New Yorker. Taylor was awarded an "Obie."
Following the Hudson Guild run of the play, Childress, Taylor and their representatives were interested in further commercial productions. But the inability of Childress and Taylor to come to terms with each other presented obstacles. The differences between the parties were longstanding. On May 9, 1986, even before the Green Plays production, Taylor's agent Yoselow had written to Childress's agent Roberts, suggesting an agreement that "the finished play shall be equally owned and be the property of both Clarice Taylor and Alice Childress." Childress never agreed to that concept of joint ownership. Taylor seemingly retreated from it when in March 1987, as the Hudson Guild Production was drawing to a close, Kramer as Taylor's attorney submitted to Childress and Roberts a draft agreement whose preamble stated:
The Producer [Taylor] wishes to acquire from the Author [Childress] the rights to produce and present a dramatic play written by Author and heretofore presented at the Hudson Guild Theatre based on the life and career of Moms Mabley. . . .
Taylor's proposed contract provided for a 4% royalty to Childress as author which Roberts testified was unacceptable to Childress, as were other terms of the proposed contract. Tr. 9-10. Childress, Taylor and their representatives met at Roberts' office in March 1987 to discuss the matter, but no agreement could be reached. Taylor, who Roberts described as "very emotional" at the meeting (Tr. 48), read aloud a six-page handwritten statement she had prepared (DX III) and departed. The first paragraph of that statement said:
Alice Childress claims she is the sole owner of the "Moms" script. I will agree to this only after she pays me $ 67,250 for my concept, my research, my expenses and input to the script of "Moms."
Childress did not agree to that suggestion.
Roberts testified that following the critically acclaimed Hudson Guild production of the Childress play, she received several telephone calls, perhaps half a dozen, from third parties expressing an interest in the right to produce the play. Roberts held these inquirers off because she was still in communication with Kramer, Taylor's attorney, and remained hopeful that something would come of the negotiations between Childress and Taylor. In following that course, Roberts regarded herself as acting in accordance with Childress's intent that terms be agreed with Taylor if at all possible. Tr. 51-53.
However, these efforts at agreement came to an abrupt end. Roberts testified:
. . . I never can believe that negotiations and good faith will break down. Just about the time I might have begun to think so, I heard the terrible news about the Astor Place. Tr. 52.
The "terrible news about the Astor Place" refers to the implementation of Taylor's decision to mount a production without Childress. As Judge Newman described the events in his opinion for the court of appeals: "Taylor hired Ben Caldwell to write another play featuring 'Moms' Mabley; Taylor gave Caldwell a copy of the Childress script and advised him of elements that should be changed. The 'Moms' Mabley play that Caldwell wrote was produced at the Astor Place Theatre in August 1987." 945 F.2d at 503. Childress and Roberts learned of the Astor Place production when they read a casting notice for the play in the trade press.
An exchange of correspondence between the parties' representatives then ensued which for present purposes I need not relate. It is sufficient to say that the Caldwell play has been judicially determined to have infringed Childress's copyrighted play.
The Moms Company performed the infringing play at the Astor Place Theatre during the weeks ending August 9, 1987 through December 13, 1987, and on a road tour of four cities (Washington, Atlanta, Cleveland and Philadelphia) during May and June, 1988. In addition, The Moms Company presented the infringing play at the Walnut Street Theatre in Philadelphia for the period August 9 through August 21, 1988. Taylor enacted the role of Moms Mabley in all these productions.
The parties have stipulated that the Astor Place production of the infringing play grossed $ 466,250 at the box office. They further stipulated that the total gross during the road trip and the return to Philadelphia in August 1988 was $ 350,085.
It is equally undisputed that The Moms Company lost money on these productions. From the gross box office receipts of a play, the producer must pay the salaries of the actors and other members of the company, rent to the theatre owners, and other expenses. The Moms Company incurred combined financial losses from the various productions in an amount in excess of $ 180,000.
In addition to her salary as an actress in the productions, Taylor received $ 1,597 as a 1% royalty for services rendered as producer and $ 4,390 as a 2% royalty for services rendered as an author. Caldwell received an advance against author royalties of $ 2,500 and additional author royalties of $ 6,987. These amounts are also undisputed.
Flora Roberts, who qualified as an expert witness in respect of "business arrangements between playwrights and producers and other persons and entities which exploit plays on and off Broadway and throughout the country," Tr. 7, gave opinion testimony in support of Childress's claim for actual damages. Roberts testified that the defendants' infringing production at the Astor Place Theatre "destroyed" the value of the Childress play about Mabley "for a long time to come." Producers would not be inclined "to read another play with the same name as a play that's already on at the Astor Place, regardless of who wrote it." Tr. 15. During cross-examination Roberts gave that chilling effect as the reason why no efforts were made to interest producers in the Childress play after the infringing Astor Place production closed. Roberts estimated that "about five years" would have to pass before the Childress play could be marketed, given the effect of the production of the infringing play. Tr. 53-54. Rather than proceed in that fashion, Childress determined to clear up any uncertainties by bringing this action for copyright infringement.
Roberts testified that if the Childress play about "Moms" Mabley had been produced, it would have fared better than the Caldwell play. She testified:
. . . my opinion is that Ms. Childress's play would have made a good deal more. It was a better play, it would have had her name on it, she has a following in both the theatre and the book world. And it would have run longer and sold more tickets. Tr. 16.
Given that testimony, plaintiff adopts the gross box office receipts achieved by the Caldwell play as a "conservative" basis for determining actual damages for the infringement. Roberts testified that in negotiations with a producer for the Childress play, she would have negotiated and obtained an author's royalty of 6% of the gross box office receipts. Applying that royalty percentage to the gross receipts realized by the infringing productions, Childress calculates her claim as follows: the Astor Place Theatre production grossed $ 466,250; 6% of that gross is $ 27,975. Deducting the $ 2,500 advance Childress received from Taylor, "the total minimum amount that Ms. Childress would have received from granting the Off-Broadway rights to her play thus is $ 25,475." ...