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In reporting on the dispute between Ars Nova and Howard Kagan, a lead producer of Natasha, Pierre and the Great Comet of 1812, both The New York Times and the New York Post have seemingly reduced the dispute, at times, to three words or two words, respectively. They’re not wrong about this being triggered by “a mere three words” in the language of the Times report. But there’s really something deeper going on that such diminishment does not fully convey.

For those who have not read about this situation previously, here’s a precis. Ars Nova, a small company well known for staging inventive new works, including not only Great Comet, but Jollyship The Whiz-Bang, Small Mouth Sounds and the current Underground Railroad Game, among others, staged the premiere of Great Comet in 2012. With Howard and Janet Kagan leading the producing team, along with Paula Marie Black, the show transferred to a tent, dubbed Kazino, under the High Line in 2013, later moving to an empty lot on 45th Street near Eighth Avenue. It then was produced at American Repertory Theatre in late 2015 before the current Broadway production began previews at the Imperial Theatre last week, for a mid-November opening.

According to reports, Ars Nova learned two weeks ago that instead of receiving its contractually agreed upon billing on the title page of the Great Comet Playbill, which was to read “the Ars Nova production of,” only their name appeared, as the last in a list of above the title producers, albeit on its own line and immediately before the title of the show. The bulk of the producers were shown in a fairly standard block arrangement, with American Repertory Theatre also afforded its own line after that block, and before Ars Nova. The Kagans appear in first position. The title page also contains language, in much smaller type at the bottom of the page, stating “Originally commissioned, developed, and world premiere produced by Ars Nova,” accompanied by similar language noting ARTS’s contributions.

To date, Howard Kagan and the Great Comet production have issued no statement regarding the billing change, and Ars Nova has only issued a general statement and shared information with the Times. However, the Times report affirms the contractual language that Ars Nova says has been breached, and the company’s managing director, Renee Blinkwolt, says that Kagan began to seek a billing change on October 9, but no such alteration was agreed upon. Press representatives from both Ars Nova and The Great Comet have declined to answer any questions from Arts Integrity.

"The Great Comet" at Kazino in 2013

“The Great Comet” at Kazino in 2013

The implication that this dispute over billing is somehow petty, because it involves only three small words, including “the” and “of,” belies the importance of such a credit to a not-for-profit organization, especially one as small as Ars Nova. While the company may have built a strong reputation in a relatively short period of time, Great Comet is their first show to reach Broadway, and the number of people who will see it nightly will outstrip the number of people who could see any show in their home theatre on 54th Street in a week. This could result in more people taking an interest in seeing work at their home base, in addition to raising their profile in the funding community. Because the current billing now equates them with ART, and denies them a possessory credit, their primary role in fostering and premiering the work is diminished, with any lost impact unknown.

One can only guess at Kagan’s rationale for the unilateral change in the credit. But perhaps given the show’s growth and transformation from Ars Nova to Kazino to ART to Broadway, Kagan feels that the show has developed far beyond what was first seen at Ars Nova, and that with his leadership and financing, it is a transformed production. But ultimately, that doesn’t matter. There is – so far as we know – a contract in force, Kagan was unable to renegotiate it, and neither he nor the current production have the legal right to ignore its terms, regardless of how large or small the alteration.

The Times report included mention of potential legal action by Ars Nova, noting that the theatre’s attorney, “accus[ed] Mr. Kagan personally of breaching his fiduciary duty as an Ars Nova board member by threatening to initiate “a smear campaign in the press in order to irreparably harm Ars Nova’s reputation” as well as by harming its gala.” In a seemingly retaliatory step, the production scheduled its recording session opposite the Ars Nova gala, where the Kagans were to be honored and the Great Comet cast was to perform.

The matter of fiduciary responsibility is not small. While most often thought of as a financial responsibility, the term is really more expansive. According to law.com, a fiduciary is “a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty.” Board members of corporations, not-for-profit or otherwise, have a fiduciary responsibility to that organization, and it is understood (and often spelled out in writing) that they will operate in that entity’s best interests.

In not-for-profit management, it has become increasingly common for conflict of interest policy to be included in board guidelines, and even for board members to annually sign a disclosure form delineating any possible conflicts of interest. Whether Ars Nova has such a policy or not, the conflict as it is publicly known suggests that by putting any aspect of the commercial production ahead of the interests of Ars Nova, a breach may indeed have occurred.

Howard Kagan is hardly the first board member of a not-for-profit to play a role in taking a production from a company in which they are involved into the commercial arena. Whether as producers or investors, it’s often a matter of pride for board members to participate in the future life of a project. But such relationships require greater scrutiny by the board of directors or trustees (regardless of the term used) to insure such conflicts of interest don’t arise. Even if there is an annual questionnaire, even if it is properly vetted by a board committee empowered to do so, circumstances can arise which change the equation. It is incumbent on board members to disclose even the potential of such situations as they emerge, as well as for boards to seek out such information.

Brittain Ashford and Denee Benton in "The Great Comet" at American Repertory Theatre in 2015

Brittain Ashford and Denée Benton in “The Great Comet” at American Repertory Theatre in 2015 (Photo by Gretjen Helene)

It’s worth noting that this is not unique to board members. In the case of Great Comet, the company’s artistic director, Jason Eagan, is fifth billed on the production, alongside Jenny Steingart, president and co-founder of Ars Nova; Eagan himself is also listed as a board member of the organization. This presents yet another somewhat incestuous relationship between Ars Nova and the Broadway Great Comet, even if it is clear from his public stance that Eagan is clearly acting first and foremost in the interest of defending the company position, rather than the wants or needs of the Broadway run. The Times noted that board members with financial interest in Great Comet were recused from discussion of these issues.

There is also a fiduciary responsibility for the lead producers of Broadway productions, since they have managerial control of the limited liability corporation established to produce any given show. Depending upon the outcome of the current dispute and the legal expenses which accrue to the production, other producers and investors might wonder at the wisdom of the approach that has been taken, since it adds expense that might otherwise have been used to benefit the production, or be returned to those who have a financial interest in the show.

While in Michael Paulson’s Times report, he notes, “The dispute does not affect the financial agreement between the commercial producers and the nonprofit,” that’s somewhat premature. Even with participation in the gross weekly box office receipts, the Times story came out one day after the first preview was performed. No financial distributions would have been made until at least yesterday, and for a show in its first week, even that would be extremely fast. It remains to be seen whether the conflict extends to other contractual terms as well.

This is an evolving situation and hopefully the original contract between Ars Nova and Kagan will be honored, unless the parties come to mutually agreeable new terms. But even if this is all resolved today, it will remain an object lesson for not-for-profit boards and companies about the pitfalls that arise when shows move into commercial production, with key players at the original company taking leadership and financial roles. While it no doubt starts with the best of intentions on everyone’s part, conflicts can arise. Only with disclosure and scrutiny can all parties ultimately come out winners.

Update, October28, 2016: The New York Times reported early this evening that Ars Nova has filed complaints with the American Arbitration Association and the New York State Court over the denial of its contractual billing and Howard Kagan’s breach of fiduciary duty as a member of the board of directors of Ars Nova. It included quotes from a statement by the producer of Great Comet on Broadway:

Ms. Blinkwolt [managing director at Ars Nova] said the two sides had attempted to reach a compromise that would settle the dispute, but those talks broke down.

In a statement, the producers of the show expressed their respect and gratitude for the nonprofit and said they were surprised to hear that the nonprofit had filed suit because they thought the talks were continuing and had made great progress.

The producers said “our understanding is that we are still in discussions. We continue to work toward a swift resolution of this matter for the sake of everyone involved in the show, and we hope that those discussions can continue privately.”

A Facebook post signed by “Jason, Renee and the Gang at Ars Nova,” also posted this evening, read in part:

It has truly taken a village to get The Great Comet to land on Broadway. If you were to remove the contributions of any one partner along the way, we couldn’t be in previews on Broadway today. And yet with no explanation, the proper recognition of our contribution has been taken away. We believe that the show currently on Broadway started at Ars Nova. That it grew and grew and grew until it was a big, beautiful Broadway musical. That narrative – that the show people are seeing on Broadway is, at its core, the show that started at Ars Nova, is extremely valuable to Ars Nova’s past, present and future, and is communicated to the tens of thousands of people seeing The Great Comet on Broadway each week only through our title page billing.

With seemingly no other alternatives to seeking remedy for this lost value, our Board voted unanimously last night to file suit for breach of contract to compel the commercial producers of The Great Comet to honor their contractual obligation to bill the show as “The Ars Nova Production Of.” We are devastated that it has come to this, but steadfast in our belief that the billing we are owed is both valuable and deserved.

 

This post will be updated as circumstances warrant.