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