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DEWAN v. BLUE MAN GROUP LIMITED PARTNERSHIP

August 31, 1999

BRIAN DEWAN, PLAINTIFF,
v.
BLUE MAN GROUP LIMITED PARTNERSHIP, BLUE MAN GROUP PRODUCTIONS, INC., ASTOR SHOW PRODUCTIONS INC., BLUE MAN BOSTON LIMITED PARTNERSHIP, BLUE MAN BOSTON PRODUCTIONS, INC., MATT GOLDMAN, PHILLIP STANTON AND CHRIS WINK, P/K/A BLUE MAN GROUP, DEFENDANTS.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

OPINION

Plaintiff Brian Dewan ("Dewan") brings this action against defendants Blue Man Group Limited Partnership, Blue Man Group Productions, Inc., Astor Place Show Productions Inc., Blue Man Boston Limited Partnership, Blue Man Boston Productions Inc., Matt Goldman ("Goldman"), Phillip Stanton ("Stanton"), and Chris Wink ("Wink"), p/k/a Blue Man Group (collectively, the "Blue Man Group"), seeking a declaration of co-authorship of certain musical compositions and damages for various state law claims. Now before the court is defendants' motion to dismiss for failure to state a claim upon which relief can be granted.

BACKGROUND*fn1

Dewan is a musician who designs, constructs, composes, and performs on his own variation of the Columbian zither, a horizontal-body musical instrument. (Compl. ¶ 15). In the fall of 1990, Dewan was approached by the Blue Man Group to collaborate with the Group on the score for a performance piece. (Compl. ¶ 16). Dewan declined the invitation. (Compl. ¶ 16). Upon further requests, Dewan agreed sometime in January, 1991, to participate in creative "jam" sessions with members of the Blue Man Group, and with Laurence Heinemann ("Heinemann") and Ian Pai ("Pai"), who are non-defendant third parties in this case. (Compl. ¶¶ 17-19). Throughout the first half of 1991, Dewan composed zither lines for inclusion in the score, and performed with Heinemann, Pai, and the Blue Man Group in various North American cities. (Compl. ¶¶ 19-20).

The performance piece, which ultimately became known as "Blue Man Group: Tubes" ("Tubes"), was evidently well-received. Defendants, along with their investors, formed BMGT, Inc. ("BMGT"), and in the summer of 1991, entered into an agreement for an initial six-month run beginning in November, 1991, at the Astor Place Theater in New York City, New York (the "Astor Place Theater"). (Compl. ¶ 22). In the two month rehearsal period before the opening, Dewan, Heinemann, and Pai reworked the existing musical compositions, and composed entirely new musical pieces for inclusion in Tubes. (Compl. ¶¶ 22-23). The vast majority of the musical score for Tubes, which is currently playing at the Astor Place Theater for an unlimited run, was composed, arranged, and honed by Dewan, Heinemann, and Pai during this rehearsal period. (Compl. ¶ 23).

In the fall of 1991, plaintiff first raised concerns about his rights, and those of Heinemann's and Pai's, in the Tubes compositions. (Compl. ¶¶ 24-25). Dewan requested that, prior to the opening of Tubes at Astor Place Theater, an agreement be drafted and executed between the defendants and the musicians. (Compl. ¶¶ 25-26). Dewan's concerns regarding his rights were heightened by discussions of a possible studio recording of the Tubes score. (Compl. ¶ 26). Defendants assured plaintiff that an agreement would be executed once the show was running. (Compl. ¶ 26).

The show opened on November 16, 1991, as scheduled, to considerable financial success. (Compl. ¶ 28). However, no agreement materialized, and Dewan once again requested that the defendants, together with himself, Heinemann, and Pai, jointly undertake an effort to secure the copyrights for the music and arrangement of Tubes. (Compl. ¶ 29). Defendants assured plaintiff that they would file the copyright registration on behalf of themselves, Dewan, Heinemann, and Pai. (Compl. ¶ 29). Goldman, Stanton, and Wink also promised that agreements memorializing the rights of the individual musicians in the compositions would be soon forthcoming. (Compl. ¶ 29).

By early spring of 1992, plaintiff, having received no agreement from the Blue Man Group, retained Sally Gaglini ("Gaglini") as counsel, and so informed the defendants. (Compl. ¶ 30). Shortly thereafter, Dewan obtained and presented copyright registration forms to defendants, Heinemann, and Pai, and encouraged them to complete the relevant sections of the forms. (Compl. ¶ 30). Having received no response for several weeks, Dewan brought additional forms to defendants on at least one other occasion. (Compl. ¶ 31).

In early May, 1992, the Blue Man Group, along with Heineman and Pai, agreed to meet with Dewan to sort out the nature and degree of their respective contributions to each of the musical compositions performed in Tubes. (Compl. ¶ 32). From that meeting, defendants generated an informal chart indicating the relative percentages of ownership claimed by each of the individuals present. (Compl. ¶ 32). Ownership shares were then assigned to Dewan, Heinemann, Pai, and the defendants according to each person's agreed-upon degree of participation in the composition's creation. (Compl. ¶ 32).

Despite the show's success, plaintiff decided to pursue his solo career. (Compl. ¶ 33). On June 2, 1992, Dewan played his last official performance with the Blue Man Group, although he occasionally served as a substitute performer thereafter. (Compl. ¶ 33). At the time of his departure from Tubes, defendants requested that Dewan provide them with the means to construct a zither, which was exclusively designed and owned by plaintiff. (Compl. ¶ 34). Plaintiff consented to facilitating their efforts on the express condition that he receive attribution for having designed the instrument in the Tubes program (the "Playbill") and in the liner notes of any future sound recordings. (Compl. ¶ 34). Defendants agreed to the condition, and also promised to compensate Dewan for generating the drawings, diagrams, and written instructions necessary to have another zither built. (Compl. ¶ 34). In addition to the design plans, Dewan at defendants' request familiarized his replacement performer with the zither. (Compl. ¶ 37). Although plaintiff eventually received the promised compensation, he has yet to receive attribution as the designer of the zither in the Playbill or otherwise. (Compl. ¶ 34). Moreover, defendants, relying on the designs furnished by plaintiff, had two additional zithers built without compensating Dewan or obtaining his consent or authorization. (Compl. ¶ 35).

The Blue Man Group continued to urge Dewan to participate in a studio recording, even after his departure from the show. (Compl. ¶ 38). However, Dewan stated that he would not perform for a recording until a formal agreement regarding his rights in the compositions was reached. (Compl. ¶ 38). In a June, 1992 meeting, the Blue Man Group once again tried to ascertain whether plaintiff would participate in future Blue Man Group projects, including the studio recording. (Compl. ¶ 39). Dewan reiterated his earlier requests for a formal agreement. (Compl. ¶ 39).

On July 24, 1992, Gaglini received from defendants' counsel a draft of an Administration Agreement (the "Agreement") to be executed between plaintiff and the Blue Man Group. (Compl. ¶ 40). The Agreement stated that the Blue Man Group, as the Administrator, was entitled to receive and collect the gross receipts from the compositions on behalf of co-authors Dewan, Heinemann, and Pai, subject to the condition that it pay each co-author a percentage of the net income derived from each composition. (Compl. ¶ 40). At least three drafts of the proposed Agreement were exchanged between counsel during the summer of 1992. (Compl. ¶ 41). Each of the drafts expressly acknowledged Dewan's status as a co-author in certain musical compositions. (Compl. ¶ 41). At one point, a Schedule (the "Schedule") enumerating the percentage of ownership in each Tubes composition was added to the Agreement. (Compl. ¶ 43; Ex. A). Specifically, the Schedule recognized plaintiff as co-author of nine compositions, all of which are still being performed in Tubes. (Compl. ¶¶ 44-45). The Schedule appeared in all subsequent drafts of the Agreement. (Compl. ¶ 43).

In late July, 1992, Dewan and the defendants participated in a conference call without their respective counsel. (Compl. ¶ 47). During the conference call, Goldman, Stanton, and Wink offered Dewan $10,000 as a one time payment for his copyright interests, and urged him to "leave the lawyers out of it." (Compl. ¶¶ 47-48). Dewan responded that he wanted their attorneys to discuss the offer, and subsequently terminated the phone call. (Compl. ¶¶ 47-48). Negotiation of the Agreement continued through October, 1992. (Compl. ¶ 51). From October, 1992 to October, 1993, neither Dewan nor Gaglini received a response from defendants as to the proposed Agreement. (Compl. ¶¶ 53-54). In October, 1993, Goldman contacted Gaglini to discuss the possibility of purchasing plaintiff's copyright interests in the compositions. (Compl. ¶ 55-56). Gaglini drafted and sent a proposal based on the October, 1993 conversation; defendants, however, never responded. (Compl. ¶ 56). In late 1993, Dewan was compelled to terminate his professional relationship with Gaglini because he no longer had the financial resources to fund her efforts. (Compl. ¶ 57).

In 1994, Goldman, Stanton, and Wink entered into an agreement with BMGT and the newly formed Astor Show Productions, Inc. whereby they agreed to use their best efforts to complete the negotiations with plaintiff on the issue of his co-authorship status in the nine compositions. (Compl. ¶ 58). Nevertheless, such negotiations were never completed nor re-initiated. (Compl. ¶ 59). Meanwhile, during ...


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