After keeping a low profile over the royalties dispute between Subversive and Samuel French, Schneiderman speaks out
By ANTHONY CHASE
In a Facebook post on Wednesday, Kurt Schneiderman, founder and artistic director of Subversive Theatre Collective confirmed that Samuel French, Inc. did indeed initiate legal action against the theater for failure to pay royalties. The defiant post implied that since the matter was settled, the dealings at Subversive should not be compared to the current controversy at American Repertory Theater of WNY. Moreover, he asserted that Subversive had somehow been bullied and victimized by Samuel French, Inc.
We went the legal, official route with all this and now that it's all taken care of, we'd like to put it behind us and get back to our quest to bring more theatre into the world.
The post ignited a large flurry of responses over a two-day period, the bulk of which were subsequently deleted, leaving only a handful of mostly supportive remarks. Schneiderman’s statement, in full, is as follows:
“Since people have been making claims about Subversive Theatre, I feel the need to set the record straight. It's true that Subversive Theatre had a disagreement with Samuel French, Inc. over payments of rights for the use of their plays. They threatened legal action but the issue never saw the inside of a courtroom. Our lawyer sat down with their lawyer and arrived at a settlement -- a settlement that was FAR less than what they originally claimed we owed them, by the way (so even they evidently felt that a good chunk of their claims against us were untenable). But anyway, we reached an agreement and we paid them in full. Clearly Samuel French, Inc. is satisfied with our business practices because they've already granted us a license to produce one of their plays for our upcoming season. If anyone has any doubts, you're welcome to check with Samuel French for yourself. We went the legal, official route with all this and now that it's all taken care of, we'd like to put it behind us and get back to our quest to bring more theatre into the world. It would be nice if people would not take this is as some excuse to bad mouth us or make up guesses about us without the facts... I'm not going to sit here and quibble about every detail, but over the last few days I've read several assertions about us that are simply factually wrong and the people saying them really ought to know better. But, hey, for those of you who need to put others down to make yourself feel more important -- have a ball.”
Under the circumstances, it seems surprising that Schneiderman made any comment at all. By staying quiet about their trouble with Samuel French, Subversive Theatre Collective had successfully been flying under the radar. Indeed, Subversive has not had to endure anywhere near the avalanche of criticism that has been visited upon ART/WNY for infractions that appear very similar. Matthew LaChiusa, executive director of ART/WNY, ignited the ire of the cast of Parade, ran afoul of family, had a playwright pull a script from the season schedule, and suffered the indignity of having members of the cast for his upcoming production of Merrily We Roll Along abandon the project so quickly that it has been canceled. Still, confronted with the facts, LaChiusa owned them, stopped making excuses, and apologized publicly. He hasn't said a word since.
Schneiderman has reacted very differently, and even seems to assert that his evasion of royalty payments was a heroic stance against corporate America. An annotated version of his statement might run as follows:
“Never saw the inside of a courtroom,” means that they settled out of court.
“A settlement that was FAR less than they originally claimed we owed them, by the way (so even they evidently felt that a good chunk of their claims against us were untenable)” could mean a number of things, though it is doubtful that Samuel French found their claims untenable. It is possible that claims against Subversive Theatre, which a source at French revealed, “date back years,” had exceeded the statute of limitations. It is also possible that certain dates could not be verified, as French attempted to reconstruct calendars of performances via online reviews. In the end, it is always in the best interest of a publisher to settle in the hopes that the offending theater will later become a compliant customer and source of revenue for itself and its clients.
“We went the legal, official route with all this and now that it's all taken care of, we'd like to put it behind us and get back to our quest to bring more theatre into the world,” means they were caught red-handed and had no choice but to pay up in order to avoid further legal complication and expense. And if the goal was to put matters behind them, it might have been wise to ignore the Facebook chatter altogether.
"Clearly Samuel French, Inc. is satisfied with our business practices because they've already granted us a license to produce one of their plays for our upcoming season," means that while the legalities were being negotiated, it appears that Subversive was blacklisted from performing any French titles, but that once a settlement was reached, and Subversive had paid back royalties and/or the assessed damages, the ban was lifted. For a time, French would not even grant contracts to other theaters seeking to rent the Manny Fried Playhouse. Raíces Theatre Company was told as much when they were declined a contract for a reading.
“I'm not going to sit here and quibble about every detail, but over the last few days I've read several assertions about us that are simply factually wrong and the people saying them really ought to know better,” means that what is being said about Subversive is essentially true, but if you split hairs and promote adequate half-truths, it is possible to make yourself seem like the victim.
Schneiderman suggests that individuals with doubts can consult with Samuel French, Inc. but before you race to the telephone, be advised that it is nearly impossible to get information about copyright violators from Samuel French, Inc. Typically, they will take your information and pursue your inquiry doggedly, but they will not report back, citing issues of confidentiality. Nonetheless, in this case, Subversive’s violations were confirmed by several sources, including a Samuel French employee.
We get a rare glimpse into the workings of a drama-publishing house in the following exchange of emails between Dramatists Play Service and Matthew LaChiusa. These emails date back to 2009 and reveal that ART/WNY was in the habit of evading royalties almost from its inception. It is probable that the initial contact between Subversive Theatre Collective and Samuel French, Inc.
(and, indeed, DPS, which also went after Subversive for back royalties in the same time frame, but did not pursue litigation) was similar:
LaChiusa's email to DPS
From: MATTHEW LACHIUSA
Sent: Thursday, March 26, 2009 10:54 AM
To: Craig Pospisil
Subject: American Repertory Theater of WNY, Inc
March 26th, 2009
Craig Pospisil Director of Nonprofessional Licensing Dramatists Play Service 440 Park Avenue South New York, NY 10016
Mr. Pospisil,
I am responding to the following message sent to both my email account as well as the American Repertory Theater of WNY's website.
Dear Mr. LaChiusa,
I have learned that the American Repertory Theater produced THE MAN WHO CAME TO DINNER in November and December of last year, THE ROSE TATTOO in April 2008 and WHEN YOU COMIN’ BACK, RED RYDER in February 2008. Dramatists Play Service represents all three of these plays, however, I cannot find any record of receiving any applications or requests from you for permission to produce the plays, nor can I find any royalty payments for these performances. As I’m sure you are well aware that these plays are protected under United States copyright laws, and as such, any unauthorized performances represent a blatant violation of the law and an infringement on our authors’ rights. I must demand an immediate written explanation of how this took place, and a full accounting of the details of these productions, including total number of performances, seating capacity of your theater, ticket prices and actors’ weekly salaries, if any. This letter is written without prejudice to any legal, equitable or other rights or remedies of our client in this matter, and we hereby formally reserve all such rights and remedies of including but not limited to seeking appropriate damages and injunctive relief in an appropriate legal forum.
American Repertory Theater of WNY, Inc is a second-year 501 C3 theater company that produces playwright workshops and fully-staged readings of classic American plays. For all intent and purposes, there has been no profit generated from the presented plays that has benefitted American Repertory Theater of WNY, Inc.
With this I will detail the following productions for ROSE TATTOO, WHEN YOU COMIN' BACK, RED RYDER & THE MAN WHO CAME TO DINNER.
American Repertory Theater of WNY, Inc. did a series of workshops and a fully-staged reading of ROSE TATTOO in April 2008 and it ran for six reading within a four week period on Friday and Saturday evenings. This production took place in the theater space which seats 55 people. Actors volunteered their services.
In February of 2008, American Repertory of WNY, Inc., in a similar fashions, presented WHEN YA COMIN' BACK, RED RYDER. This workshop and staged reading was slated for a four week period, however, the final week of the run was cancelled due to a snow-storm. This limited American Repertory Theater of WNY, Inc. to four readings. Actors volunteered their services.
In November of 2008, a more ambitious attempt with a broader range of dates was slated for American Repertory Theater of WNY, Inc. workshops and fully-staged readings of THE MAN WHO CAME TO DINNER. The scheduled reading dates for this production was 14. Four of the fourteen were listed as a Sunday readings. Several readings were cancelled due to poor performance, December 14th & December 3rd. Due to a December blizzard, the final four readings were cancelled. This left the run at 8 total readings. Due to the fact that space rental was being charged, American Repertory Theater of WNY, Inc. suggested a donation to cover this expense. Actors volunteered their services.
To reiterate, American Repertory Theater of WNY, Inc. did not generate a profit from these three readings.
Being a playwright, and in hopes of having my own works represented, I am very concerned with copyright infringement and treat this with serious concern. I look to an immediate response and look to resolve this issue between Dramatist Play Services and American Repertory Theater of WNY, Inc.
Sincerely, Matthew LaChiusa
Artistic Director American Repertory Theater of WNY, Inc
716-884-4858 artofwny@msn.com
And ... the response from DPS:
Dear Mr. LaChiusa,
Thank you for responding to my letter, but this does not explain why American Repertory Theater of Western New York did not apply for permission to produce these plays. Whether there was any profit is not germane. Most of the major regional theaters in the country are non-profit organizations, but they pay royalties. Any time you present a play before an audience, whether or not there is a ticket price, whether or not the theater makes any profit, you have to obtain written permission and pay the required royalty fees for the use of the material. You mention paying a rental for the use of the venue, the use of the plays themselves is no less important.
Furthermore, you call these performance “workshops” and “staged readings,” however none of the reviews which I read – and which are accessible through or reprinted on your own website – allude in any way to these performances as staged readings. In fact, the reviews of THE MAN WHO CAME TO DINNER specifically compliment the “production” and commend the director for keeping the “action moving,” and mention “kooky stage business.” And in all my time at the Play Service, I don’t think I have ever had a theater group present a play for more than two or three stage readings. To say that you presented the play for 14 readings leaves me dubious.
In addition, the review of THE MAN WHO CAME TO DINNER from Artvoice also mentions that alterations were made to the text of the play, referring to “some judicious cuts” and saying “some of the topical references have been altered (never to particular advantage).” This represents another violation of copyright, which protects works from any unauthorized changes or alterations to the text. I would like a full explanation of this as well.
The first step here will be to resolve the matter of royalties for the performances of THE MAN WHO CAME TO DINNER, THE ROSE TATTOO and WHEN YOU COMIN’ BACK, RED RYDER? I would like you to send me the actual dates for each individual performance of these plays, so that I can verify this information and determine the appropriate royalty costs.
Sincerely,
Craig Pospisil
Director of Nonprofessional Licensing
Dramatists Play Service
440 Park Avenue South
New York, NY 10016
These emails give us insight into the methods used by publishers to reign in copyright violators, and some of the strategies used to evade compliance. Other methods of evasion include unreported “benefit” performances, unreported “previews” and “discounted dress-rehearsals.”
During the investigative stage leading up to the legal threats at Subversive, Samuel French was somewhat forthcoming in response to inquiries, but the instant the legal threat was deployed, they stopped all conversation, citing the legal action as the reason. It soon became clear that Subversive had been blacklisted, pending a resolution. Finally, when Subversive announced She Kills Monsters, a Samuel French title, for next season, it was apparent that the matter had been settled.
Expect the issue of copyright violation to become a greater part of the national theater conversation. A point of interest: in the wake of the Buffalo royalty controversy, Donna Hoke, our regional representative to the Dramatists Guild, who also sits on the Dramatists Guild Council, has been invited to sit on the Guild's Copyright Advocacy Committee, chaired by Georgia Stitt, who sprang into action upon hearing that ART was producing an unlicensed Parade, property of her husband, Jason Robert Brown.
Many people who have worked with Subversive have stories about the group's tentative finances and business practices.
During the time that Samuel French, Inc. was demanding its back royalties, Susan Forbes was directing The Full Monty for Subversive Theatre Collective. She was also being courted to serve on the Subversive board. Noticing that The Full Monty was not on the Music Theatre International website as a legal production, she questioned Schneiderman, who lamented the tight finances at Subversive and the demands of Samuel French, which he thought were harsh and unreasonable.
“I have to feed my family!” he would say, according to Forbes.
“He actually said that to the guy at Samuel French!" she said. "Of course when I mentioned that royalties are the way that playwrights feed their families and suggested that he might do fewer plays per season and find scripts with lower royalties, he was not interested."
It bears mention that these conversations occurred after Samuel French, Inc. had already initiated a process to obtain payment of past royalties. Even while Subversive was being pursued by Samuel French, they had embarked on a production of The Full Monty without a contract from MTI.
Forbes also found that the priorities at Subversive tended to veer from the mission.
"When I suggested ways that he could use some Equity actors," Forbes continued, "he really protested, ‘We don’t want unions in here!’ I thought really? Subversive Theatre Collective in the Manny Fried Playhouse doesn’t want unions? This theater is built on unions and on plays about unions. That’s why we’re doing The Fully Monty!”
Forbes is an Equity member and an officer in the local Equity organization. In order to ensure that her production of The Fully Monty at Subversive was legal, she wrote a personal check to pay for the royalties herself.
“I saw the way they operated and their attitude toward royalties,” said Forbes. “I just made sure I got a letter to use at tax time.”
"The difference between LaChiusa and Schneiderman is that Schneiderman applies some kind of moral relativism akin to a theatrical Robin Hood," says Hoke.
The essence of Schneiderman's argument seems to be that no laws were broken if you got away with it. He also seems to believe that because his Subversive theater is a modest team of volunteers, just scraping by, that they should not be beholden to corporate entities like Samuel French and DPS. Of course, Samuel French and DPS exist to protect the interests of artists. We're not talking about Halliburton, Lockheed Martin, or Wells Fargo here! Ninety percent of royalties collected go directly to the playwrights, or their estates, which are often widowed spouses or descendants.
Hoke, who has devoted considerable energy to the issue, was taken aback by Schneiderman’s ability to rationalize non-payment as somehow honorable.
"The difference between LaChiusa and Schneiderman is that Schneiderman applies some kind of moral relativism akin to a theatrical Robin Hood," says Hoke. "He sees his theater as heroic, and believes the work Subversive does endows him the ability to determine when and if rights should be paid. He has told me in multiple iterations that I am a pawn of corporate America because I expect theaters to properly and legally compensate playwrights. This isn’t a question of oversight or poverty; it’s willful disregard for the rules of the theatrical universe, rules that most other theaters in town abide by while Schneiderman plays by his own."
"Well, how many of you have declared all your earnings (theater and otherwise) on your taxes?”
To get some insight into the moral relativism that seems to be part of the culture at Subversive, their current treasurer's online comments in the discussion of Schneiderman's post are instructive:
“What theater in Buffalo has no skeletons in its closet?” he asks.
Then in a subsequent post he elaborates:
“What a pile-on! sanctimony runs deeper than a southern baptist. Yes, small theaters cut corners to survive in the hope that they can get big enough to NOT cut corners. Who's making a bundle here? Not the little theaters. exec directors and artistic directors get zilch. everything goes back to doing theater. we pay with our own credit cards and volunteer endless hours for nothing. How many of you have gotten your start with the little theaters? probably most of you. Do you say thank you? no, you pile on because somebody says it's ILLEGAL. Well, how many of you have declared all your earnings (theater and otherwise) on your taxes?”
For the record, the vast majority of us have never cheated on our taxes (or run out on a check, or shoplifted). According to the IRS, as reported in the Atlantic, “ If such a thing as American exceptionalism remains, maybe it can be found in this: Despite deep IRS budget cuts, an average audit rate that has plunged in recent years to just 0.6 percent, and a president who has bragged that dodging federal taxes is ‘smart,’ most Americans still pay their income taxes every year. Even more remarkable, most of us feel obliged to pay. To quote the findings of a 2017 IRS survey: ‘The majority of Americans (88%) say it is not at all acceptable to cheat on taxes; this ethical attitude is not changing over time.’”
I also question the implication that most well-established local theaters started out by breaking the law.
The Subversive treasurer elaborates on this theory of moral relativism, and in the process, lends weight to a possible reason why Samuel French settled for less than they originally demanded. He implies that Subversive's violations went back ten years, which means most of the complaint would fall outside the statute of limitations.
So keep Tim [White] in mind before you go around questioning anybody’s “credibility,” you have no idea how tough it is to keep an arts organization afloat until you’ve given it a try.
One might expect that having had his say, Schneiderman would now lie low. He did not. As the argument continued, the Subversive Theatre founder geared up for more.
“Back when Loraine [O"Donnell, current executive/artistic director of the Kavinoky Theatre] and I were working on a production of MARTY -- I was the stage manager/lighting designer, Loraine was part of the cast -- there was the accusation in the press that the rights for the show had not been paid (in a recent article, Tony Chase said this was a New Phoenix show, it wasn’t, it was a show by the Buffalo Ensemble Theatre). At the time, a lot of us working on the show expressed concern (me and Loraine included). No one refused to go on. There were many very fine actors in that show – if anybody had criticized the actors in that show – if anybody had told Loraine that her “credibility was at stake” for being a part of that show, I would’ve told ‘em exactly what I’m telling Doug now: “No, it’s not the actors’ fault, they’re not bad people if they continue to perform, and no one should be questioning their credibility in any way, shape, or form.”
Norm Sham who starred as “Marty” and Loraine O’Donnell do not recall these events in quite the way described by Schneiderman. (And I do stand corrected; the show was done “at” not “by” the New Phoenix Theatre; if I have entirely lost credibility, please stop reading). The two recall confronting the producers about the rights to the show and the status of Equity contracts during the rehearsal period for the show. They recall being ready to walk out on the show. They were assured that, "we're working on it." They then recall being called to a meeting after the opening at which they were told that rights had been secured. As we have seen in similar situations since, they were lied to.
The most vivid and emotional plea in the Schneiderman posts comes next:
“The producer of that show was the late great Tim White who was one of the dearest, kindest, most passionate artists I have ever known. He poured his life’s blood into his theatre and refused to ever be paid a dime. He worked his ass off making more theatre come to life in this town – he worked himself like a dog even when he was life-threateningly ill on dialysis and fighting just to stay alive. I have no doubt that he cut some corners along the way, there were many times when he needed to rob Peter to pay Paul, and I applaud him for everything he did to keep that ship afloat. If it hadn’t been for Tim, a lot of the veteran actors in town today might never have gotten their first shot. So keep Tim in mind before you go around questioning anybody’s “credibility,” you have no idea how tough it is to keep an arts organization afloat until you’ve given it a try.”
Wow!
Where to begin?
Tim White is not alive to defend himself. He can neither confirm nor dispute Schneiderman’s lack of doubt over whether “he cut some corners along the way,” or whether “there were many times when he needed to rob Peter to pay Paul.”
O’Donnell and Sham do not remember Tim White as being actively involved in the contract and rights issue. They recall two Buffalo Ensemble Theatre board members who seemed to be taking the lead. They do not remember Schneiderman as being a large presence during production, much less a part of the decision-making group.
I cannot verify whether Tim would have appreciated being applauded for his alleged involvement in illegal behavior.
I have spent many a wonderful evening at the Manny Fried Playhouse and have often admired the work of the Subversive Theatre Collective. I respect the group’s mission to use theater to support the underdog, but don’t believe that support extends to making unilateral decisions about paying royalties to perceived mega-corporations. I do think that some Subversive members have misjudged the purpose of organizations like Samuel French, Inc. and DPS, which exist to protect artists against a time when they could languish in poverty while their work was being performed across the country. Stephen Foster, the father of American song, died in the charity ward of Bellevue Hospital in New York City with just three cents in his pocket. The argument that writers who are dead do not need royalties seems specious when Subversive also failed to pay royalties to playwrights who are living. I also question the wisdom of a board of directors that would support and even participate in the irresponsible Facebook rants we’ve seen this week, which amount to little more than elaborate efforts to rationalize theft. Surely a labor-oriented theater should be the first to recognize that artists deserve to be compensated for their work, and that includes writers. I did reach out to Kurt Schneiderman for comment, but had not heard back by the time of this posting.
I am glad that Subversive Theatre Collective is now in compliance with copyright law, albeit begrudgingly. I hope we can look forward to continued excellent and provocative work on their stage. I hope that we can expect the same from ART/WNY. And I hope, at last, that we can at least agree on that.