Larson's Intent Key in 'Rent' Case

But most vexing question--what is a dramaturg?--remains

American Theatre
October 1997
By Scott. T. Cummings

How do you read the mind of a dead man? That, it turns out, was the task facing Federal Court Judge Lewis Kaplan in resolving the case of Thomson v. Larson. As had been widely reported, the judge found in favor of the estate of Jonathan Larson, ruled that Lynn Thomson was not a co-author (in the legal sense of the term) of the commercially successful musical Rent, and dismissed her complaint that as dramaturg she had made copyrightable contributions to the musical worthy of 16 per cent of the author's royalties. An appeal is already under way.

In the judge's decision, the case turned on the question of intent. Citing a Court of Appeals ruling in the 1991 case of Childress v. Taylor concerning "what it takes, beyond a copyrightable contribution, to be a joint author," Kaplan found that "each of two or more putative joint authors must entertain in their mind the concept of joint authorship" and that, "despite all his warm feelings and high regard for Lynn Thomson," Larson never entertained in his mind the concept that she was or would be a joint author of Rent.

In looking for "a window on the mind" of Larson, who died after the final dress rehearsal of Rent at New York Theatre Workshop in January 1996, the judge found several cloudy panes. These included Larson's contract with NYTW which gave him sole approval over changes in the text; remarks made by Larson in an October 1995 interview; the biography he submitted for the Rent playbill; his filing for copyright on an earlier work as a co-author; his steadfast refusal to bring a book writer onto the project despite the urging of NYTW; and his explicit and repeated crediting of Thomson as "dramaturg" during the period of their collaboration (which began in May 1995 and lasted until his death).

The judge connected these dots, saw a picture of Larson's enduring intent to be the sole author of Rent, and ruled against Thomson. In so doing, he acknowledged that Larson's intent could have changed as a result of his work with Thomson, but he found no persuasive evidence to support that possibility. And he agreed with others who have suggested that the matter would never have come to court if not for Larson's unfortunate and untimely death. Further, Kaplan expressed his belief that Thomson had been a "significant force" in the "radical transformation" of Rent from an unproducible work-in-development into a critically and commercially viable play that she had indeed contributed copyrightable material to it. This is, in large part, the basis of Thomson's planned appeal.

In a digression prompted by "the amount of ink and passion expended on the dramaturg point," Kaplan took the time to express his view that this was not "a test case on the role and rights of dramaturgs in the theatre" contrary to the arguments of Thomson and others. The Rent case has raised tricky and inflammatory issues about literacy and theatrical collaboration and intellectual property rights precisely because of Thomson's insistent claim that it was in her capacity as dramaturg that she made copyrightable contributions to the show. Judge Kaplan has left it to the court of professional practice to take up the perennial question, now more vexing than ever: What is a dramaturg?

Other questions linger: Should the evolving definition of a dramaturg leave room for occasions when she performs authorial functions (and perhaps even collects royalties)? Should dramaturgs limit themselves to the Socratic role of asking probing questions (between making runs to the library and writing program notes)? How creative can you be before you become co-creator? Is the fact that Thomson did not stop in the middle of her work with Larson to renegotiate her relationship with him (and get it in writing) reason enough to exclude her from the benefits of the show's success?

For now, the prerogative of determining Lynn Thomson's share of the Rent pie still seems to rest with Jonathan Larson and he, with all due respect, is not talking.