The Playgoer: "declaratory judgments"

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Monday, December 11, 2006

"declaratory judgments"

That's what the accused Urinetown copycats are sueing (counter-sueing?) for.

Now the Chicago team, too. More specifically...

The Chicago team's suit asks for declaratory judgments stating it did not violate the Copyright Act or the Lanham Act (which contains federal trademark law). Shechtman [the Broadway team's lawyer, Ronald H. Shechtman] accused both productions of those violations in a Nov. 13 letter that set off the controversy.

Both the Chicago and Akron suits name Urinetown's Broadway director John Rando, choreographer John Carrafa, set designer Scott Pask, lighting designer Brian MacDevitt and costume designer Gregory Gale.

The Chicago suit goes one step further by naming Barbara Hauptman, executive director of the Society of Stage Directors and Choreographers (SSDC), who has supported the Broadway team. Adler [the Chicago team's lawyer, David M. Adler] says his suit also seeks a retraction of and possible monetary damages for "defamatory statements" made by the Broadway team at a press conference, held at the SSDC offices on Nov. 15, two days after the letter was sent.

So the head of SSDC is being sued? That's news that should get directors everywhere to sit up and notice.

Anyone want to elucidate us on this Lanham Act?


Anonymous said...

Well, the Lanham Act is the popular name of what's more officially known as the Trademark Act of 1946. It covers, as you could imagine, trademarks.

Frankly, I don't see what this dispute has to do with trademarks. (Or with the sort of false-advertising claims that the Lanham Act also covers.) If Shechtman formally accuses the Chicago and Akron productions of a Lanham Act violation in a court filing (as opposed to a letter), I'm sure he'll educate us as to how this relates. Until then (or until some other commenter corrects me), assume that the Lanham Act/trademark issue is just so much wind, and that the real issue concerns copyright protection.

parabasis said...

Wikipedia on the Lanham act.

I guess you could say that it's false advertising to say the play was directed by one person, when it was in fact someone else's blocking. Hm.

Playgoer said...

Thanks for the Wikipedia link, Isaac. Reading that, it seems the trademark clause is NOT what this is about. Rather, it's the "false & misleading statements" part:

"Section 43(a)(1)(B) is also often utilized in law when false or misleading statements are alleged to have hurt a business. To be proven in court a claimant must satisfy 3 principles: There was a false or misleading statement made, the statement was used in commercial advertising or promotion, and the statement creates a likelihood of harm to the plaintiff."

Anonymous said...

Hmmm... in the context of the sale of goods, I've seen the false-advertising part of the law as requiring five elements:

"1. The defendant must have made a false or misleading statement of fact in advertising.
"2. That statement must have actually deceived or had the capacity to deceive a substantial segment of the audience.
"3. The deception must have been material, in that it was likely to influence the purchasing decision.
"4. The defendant must have caused its goods to enter interstate commerce.
"5. The plaintiff must have been or is likely to be injured as a result."
This is from an opinion of the Eighth Circuit Court of Appeal. Thanks to William Manning and Jennifer McKenna for the analysis, at the URL shown below. (My apologies for not knowing the proper HTML tag.)(

I don't know if there's a different test for plays (which might be construed as services or commercial activities, but not as goods), but we can analogize.

Manning and McKenna go on to say: "To obtain monetary damages - as opposed to simply injunctive relief - a Lanham Act plaintiff must also demonstrate actual consumer reliance on the false advertisement and a resulting economic impact on its own business." And it's too late for injunctive relief - the Chicago and Akron productions have already closed.

So all the plaintiffs (the Broadway director, choreographer, et al) could legitimately ask for are monetary damages, and to do that they'd have to show that the false advertising (if that's what it was) "had a negative impact on [their] own business" - i.e. deprived them of customers, negatively affected their own ability to get future work, etc. That seems like an awfully big stretch.

Element 4 of the Eighth Circuit's original five-element laundry list is also crucial - it's how the Lanham Act can apply to false advertising in the first place. If there isn't an interstate market for the product (or service), then Congress can't regulate it, and the false-advertising part of the Lanham Act wouldn't apply. If the Lanham Act can't apply, then the plaintiffs could only use the false-advertising statutes from Ohio (or Illinois) state law.

[Usual disclaimer: this is not legal advice, is the product of speedy and shallow research, and should not be relied upon by anyone considering legal action or defending oneself against same. I'm not even wearing a necktie, for Pete's sake.]

Anonymous said...

Finally, someone is speaking up against the SSDC!!!

My wife is a director and receives no protection from the union, she left it years ago and we have been saying this for years. The SSDC only protects members who work on Broadway even though 90% of thier paying members work everywhere but Broadway.

Barbara Haupman is an idiot for taking sides, what sort of union does not work this out on the inside? How bout one that is not even an actually union!!!

Kudos to the Chicago team for standing up!!