“This is a community art, built only on the goodwill between artists, and there isn’t enough money to bring in lawyers.”
If you ask me, that quote in The Los Angeles Times, from playwright Tommy Smith, is a rather contradictory one. Referring to the playwright’s current dispute with the Echo Theatre Company in Los Angeles, it suggests magnanimity, but then says that’s the chosen path only because legal recourse is too expensive. If it’s about good will, why is it in the press?
In the September 30 article by David Ng, Smith charges the company with, among other things, producing his play Ghost Light without a contract and willfully excluding the author from rehearsals. Performances date back to early August.
If Smith’s account is accurate, the behavior of the company is unconscionable, violating pretty much every tenet of the playwright-producer relationship and amounting to outright theft of creative material. It is exactly the sort of treatment that prompted playwrights to react to the call for submissions by Words Players Theatre, an amateur youth troupe in Minnesota, rising to a level of vehemence that may have undermined some of the completely legitimate arguments. Is this in part a similar scenario, but at a professional level, exactly the sort of behavior that many wanted to be sure Words Players wasn’t instilling in young writers and directors?
Here’s the problem with calling for equally passionate reaction to what’s happened at Echo Theater: the theatre claims it has a signed contract and that the playwright was paid for performances. And while David Ng’s article carries the headline, “Why a playwright is urging L.A. theatergoers to boycott his latest,” the article states that all future performances have been canceled, negating any need for a boycott at least. What we have here is a “he said/they said” situation.
Now it’s important to note that Ng attempted to contact Smith’s agent, which Smith’s website indicates is Jessica Amato at The Gersh Agency in New York. He received no response according to his article, and my own inquiry, via e-mail, 24 hours ago, also yielded no reply. I have written to Smith on Twitter to try to engage with him directly, but have as of yet been unsuccessful (though I should note that I’m writing from London, and an eight-hour time difference might be a factor). Ng also said Echo Theatre didn’t respond when he asked for more information about the contract they say they have.
If indeed Echo Theater proffered a contract that proposed to give Chris Fields, the company’s artistic director “complete authorial control over the production,” then the situation is shameful. If the play was proposed as a workshop and produced without a valid production agreement in place, it’s actionable. I would refer Smith and Amato to the Dramatists Legal Defense Fund, who I believe would vigorously pursue such a claim, including identifying an attorney who might take on the case pro bono. No matter the size of the company, the length of the play or the dollars at stake, the rights of artists to control their work must be defended.
The LA Times report as it stands is unsatisfying, and not quite the basis for a public campaign just yet. Now that it’s out in the open, someone beyond Smith needs to fully open up, whether it’s Echo Theater, by producing an executed copy of the contract in question to prove their claim (although if it includes language about ceding authorial rights the issue won’t stop there), or Smith’s agent, to corroborate the scenario he laid out.
There’s more to this story for sure. But whatever’s happened in Los Angeles, the dispute about Ghost Light can’t be allowed to become a phantom, because there’s too much at stake that’s vital to all playwrights to let it simply disappear, echoing as it evanesces.
PART II, October 6, 2015
At the end of my original post, I had asked the parties involved in the dispute over the production of Ghost Light at Echo Theater to speak up and shed more light on the situation. One responded, one demurred, and one stayed silent.
Jessica Amato of The Gersh Agency, who represents Tommy Smith, had not responded to my e-mail last week, but took my phone call yesterday. She said that in regards to inquiries about Ghost Light at Echo Theater, only the playwright could address questions regarding the play’s production. She confirmed that the e-mail address I had found for Smith, through a mutual acquaintance, was indeed the correct one, and said that if he wished to make any statement or speak with me, a response would be at his discretion.
Smith, however, has not responded to my inquiries, either on Twitter, as I had attempted last week, or via e-mail, despite two attempts yesterday, with more than 24 hours now passed. After sending notices to the Los Angeles press with his charges against Echo Theater’s production of Ghost Light last week, and speaking with the Los Angeles Times for the story that ran on September 30, Smith did not take the opportunity to discuss the issue any further, at least not with me.
I did hear from Chris Fields, the artistic director of Echo Theater, first via e-mail and then in two phone calls, a brief conversation on Sunday and a longer interview yesterday. In between those two calls, Fields sent me a copy of the theatre’s June agreement with Tommy Smith for the production of 12 performances (not described as a workshop) of Ghost Light, as well as a canceled check in payment of an author’s fee for those performances. It was exceedingly brief, amounting to a single paragraph in a three paragraph letter. One other paragraph had been redacted, which Fields explained as pertaining to a separate production of a play by Smith; the payment amount was also redacted on the check, however the agreement’s first paragraph indicated that the subsequent paragraphs were terms for two purposes, only one being Ghost Light. Provided the redacted paragraph was as described by Fields, what I saw appears to corroborate the statement Fields made to David Ng at the Los Angeles Times last week and contradict Smith’s account of Ghost Light being produced without an agreement.
In our conversation, Fields spoke highly of Smith’s work and recounted Echo’s production history with his plays, including the successful August debut of Ghost Light. When asked about the discrepancy between the theatre’s position and Smith’s assertions, Fields indicated that it stemmed from conversations about a new author’s agreement that was being negotiated in early September, in response to Smith’s request for an increased author’s fee. He denied any effort to alter the play or its title without Smith’s consent, or asking for any form of authorial control.
“He asked for more money,” said Fields. “I forgot I’d contracted for 12 performances.” But saying that even once he realized that he was not averse to an increase, Fields prepared a revised agreement that he described as “acknowledging that earlier agreement is void and authorizing additional performances.”
According to Fields, Smith said that the new agreement was not sufficient and that his agent would not accept it, and they agreed that Smith would send revisions. Among other points raised in the Smith draft, Fields said, “He sent agreement with language insisting on meeting with marketing and publicity director. It was moot because marketing already existed and the image we used came from him.” Fields said there was also standard language about authorial approval and consultation, but that in this case the agreement pertained to an existing production, which had already opened and been reviewed, so there was some disagreement regarding reasonable approvals language. There were communications between Fields, Smith and Smith’s agent, but Fields said that conversations over the new agreement lapsed on September 9; the next performance of the play was to be September 26.
Without an updated agreement, the June agreement was still in force, and Echo gave its scheduled performance on September 26. In communications the next day between Fields and Smith, in which Smith expressed his displeasure with the performance going forward the night before, Fields said he ultimately informed Smith that the remaining two scheduled performances would be canceled. It seems that Smith began his efforts to contact the media the next day.
So what can we take from this falling out between a playwright and theatre company that had worked together several times previously?
First, this is an object lesson on the benefit of representation. It appears that the original agreement, which as I noted was quite brief, was executed directly between Smith and the theatre. With an agent or attorney negotiating it, or if it fully followed Dramatists Guild guidelines, Smith would have perhaps had the fee and protections that he apparently sought to address with a revised agreement, negating the need for another contract.
Second, while contracts can be superseded and negated with new agreements, old agreements don’t lapse as a result of negotiation, but only upon execution of the new agreement encompassing those terms. While the situation may not have been ideal for Echo to proceed with more performances after communications broke down in early September, it appears they were within their rights in giving more performances of the existing production.
Third, playing out a dispute in the media is very tricky. While Smith got very high profile press for his charges via the LA Times, and indeed benefited from a headline which even the story didn’t support, a careful reading of the article suggested that the situation was more complex than was portrayed in the piece. Echo Theater might have helped itself in the situation if they had released the canceled check and brief contract immediately to David Ng, to bolster their position. Recalling an edict from the Bill Clinton campaign, repeated charges not challenged become facts.
It’s clear that a previously fruitful relationship between Tommy Smith and the Echo Theater has gone sour in a dispute over the revision of contractual terms. However, in the absence of any statement or explanation from Smith or his agent beyond his initial claim, it seems that the original agreement was still in force and Echo Theater was producing the show under a valid agreement for which payment had been made and accepted months before.
Update, October 7, 9 pm: Reporting further on the dispute between Tommy Smith and the Echo Theater Company, David Ng’s follow-up story included a new statement from Smith:
“After taking the time to consult with legal representation, I am profusely apologizing for and retracting my statements about Echo Theater Company and its project Ghost Light,” he said.
Smith said he consulted with the Dramatists Guild, the New York-based professional association of playwrights, on the matter.
“I thank Echo for allowing me the time to fully understand my situation and consider this difficult admission,” the playwright said. “I am sorry that the public had to be involved at all.”
Howard Sherman is the director of the Arts Integrity Initiative at The New School for Performing Arts.