Erickson v. Trinity Theatre, Inc.

Erickson v. Trinity Theatre, Inc.

Opinion

 [***1347]   [*1063]  RIPPLE, Circuit Judge. The plaintiff Karen Erickson brought this action seeking a preliminary and permanent injunction to prevent the defendant Trinity Theatre d/b/a/ Trinity Square Ensemble ("Trinity") from performing three plays and using two videotapes to which she owned the copyrights. The magistrate judge recommended enjoining the performance of the plays but not the use of the videotapes. Both parties filed objections. The district court sustained Ms. Erickson's objections [**2]  to the portions of the recommendation addressing the videotapes but denied Trinity's objections to the portion of the recommendation addressing performance of the plays. Accordingly, the district court enjoined Trinity from using either the plays or the videotapes. Trinity now appeals. We now affirm. [***1348]  

BACKGROUND

A. Facts ²

Ms. Erickson was one of the founders of a theatre company in Evanston, Illinois, that ultimately became known as Trinity Theatre. Between 1981 and January 1991, Ms. Erickson served Trinity in various capacities: as playwright, artistic director, actress, play [**3]  director, business manager, and member of the board of directors. This suit revolves around Ms. Erickson's role as playwright.

At issue here are the rights to three plays: Much Ado About Shakespeare ("Much Ado"); The Theatre Time Machine ("Time Machine"); and Prairie Voices: Tales from Illinois ("Prairie Voices"). Much Ado is a compilation of scenes and sonnets from William Shakespeare and other writers of his time. Ms. Erickson revised this work from an earlier script entitled Sounds and Sweet Aires. Michael Osborne, a Trinity actor, testified that Ms. Erickson compiled Much Ado in 1988 and that many decisions about what was to be included were made during rehearsals. Osborne identified two portions of the copyrighted script that resulted from his suggestions: a passage to Macbeth and the  [*1064]  introduction to the play. The editing of the text, Osborne continued, was accomplished largely by consensus; however, when a consensus could not be had, Ms. Erickson made the final decisions. Osborne further testified that he understood at the time that the play was being created for Trinity and not for Ms. Erickson. Ms. Erickson does not dispute the process described by Osborne, but characterizes [**4]  it differently. She perceived the process only as actors making suggestions for her script.

Time Machine is a play of five scenes based on a public domain Native American folk tale. Each scene depicts dramatic styles from different historical periods. Ms. Erickson received a copyright registration for Time Machine on September 12, 1988. She described the development of the play as beginning in 1977 when she was in school. At that time, she wrote the Greek-style drama scene. Later, while teaching high school drama, she wrote the second scene based on commedia dell'arte. She also began work on the melodrama and improvisational scenes of the play at that time. Ms. Erickson started producing the play independently of Trinity in 1984 with two other actors, Paddy Lynn and Will Clinger. Ms. Erickson claimed that she worked to develop the scenes alone; however, the evidence shows that the actors were involved in the development of the melodrama and improvisational scenes. The improvisational process, as described by Ms. Lynn, is a form of theatre in which there is no script. Rather, actors work with an idea and a loose structure to create a play. Ms. Lynn described the development of the  [**5]  improvisational scene in Time Machine as a collaborative effort. However, she conceded that Ms. Erickson took all of the notes from rehearsals and compiled them into the script; furthermore, nothing was included in the script without Ms. Erickson's approval. Initially, Ms. Erickson attributed the script to both herself and to Ms. Lynn. Ms. Lynn also received royalties for performances of the play. Ms. Erickson denied that she ever intended to include Ms. Lynn as joint author. She conceded that Ms. Lynn was credited on publicity materials as an author but denied that she approved such credit. The later change in attribution, Ms. Erickson claims, merely corrected the initial error.

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