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95–099 PDF 2004

S. HRG. 108–548

S. 2349: THE PLAYWRIGHTS LICENSING ANTITRUST INITIATIVE ACT: SAFEGUARDING THE

FUTURE OF AMERICAN LIVE THEATER

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 28, 2004

Serial No. J–108–71

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, prepared statement ...................................................................................................................... 35

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 40

Kennedy, Edward M. Kennedy, a U.S. Senator from the State of Massachusetts ....................................................................................................................... 3

prepared statement .......................................................................................... 42

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, prepared 

statement .............................................................................................................. 45

Leahy, Hon. Patrick J. Leahy, a U.S. Senator from the State of Vermont ......... 7

prepared statement .......................................................................................... 47

WITNESSES 

Berlind, Roger, Producer, Berlind Productions, New York, New York ............... 13

Miller, Arthur, Playwright, Roxbury, Connecticut ................................................ 6

Schoenfeld, Gerald, Chairman, League of American Theaters and Producers, 

and Chairman, The Shubert Organization, New York, New York .................. 9

Sondheim, Stephen, Composer and Lyricist, New York, New York .................... 15

Wasserstein, Wendy, Playwright, New York, New York ...................................... 11

SUBMISSIONS FOR THE RECORD 

Berlind, Roger, Producer, Berlind Productions, New York, New York, prepared statement and attachment ........................................................................ 28

Dramatists Guild of America, Inc., New York, New York, statement and 

attachment ............................................................................................................ 38

Miller, Arthur, Playwright, Roxbury, Connecticut, prepared statement ............ 48

Norman, Marsha, Vice-President, Dramatists Guild of America, Inc., New 

York, New York, statement ................................................................................. 51

Schoenfeld, Gerald, Chairman, League of American Theaters and Producers, 

and Chairman, The Shubert Organization, New York, New York, prepared 

statement .............................................................................................................. 53

Sondheim, Stephen, Composer and Lyricist, New York New York, prepared 

statement .............................................................................................................. 62

Sweet, Jeffrey, Playwright, Chicago, Illinois, statement ...................................... 64

Wasserstein, Wendy, Playwright, New York, New York, prepared statement 

and attachments ................................................................................................... 67

(1)

THE PLAYWRIGHTS LICENSING ANTITRUST 

INITIATIVE ACT: SAFEGUARDING THE FUTURE OF AMERICAN LIVE THEATER 

WEDNESDAY, APRIL 28, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:13 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Leahy and Kennedy. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good afternoon and welcome to today’s hearing on the Playwrights Licensing Antitrust Initiative Act, or PLAY 

Act. We have a tremendous panel of witnesses and very interesting 

topics. I am truly excited to hear the testimony here today. 

Today, from our left to right, we have the famous Arthur Miller 

and Stephen Sondheim. All of these people are famous. We have 

Roger Berlind on that side, Wendy Wasserstein, Gerald Schoenfeld 

and, of course, as I mentioned, Arthur Miller. This is an absolutely 

incredible panel of Broadway’s finest, all side-by-side by Sondheim. 

Hey, that almost sounds like a song. 

[Laughter.] 

Chairman HATCH. As an initial matter, I understand that the 

word has gotten out that Senator Kennedy and I are rehearsing a 

song from the musical ‘‘Gypsy.’’ We will be performing it at a benefit gala this Friday at Ethel Kennedy’s home. 

One of my more enterprising staffers suggested that we could 

raise some money by selling a video of our performance. He went 

on to suggest that we could make more if we charged extra for a 

version of the video without any audio. I would like to take this opportunity to publicly wish him well in his job search. 

[Laughter.] 

Chairman HATCH. But, seriously, I hope that both our duet and 

future Committee action on this bill will be more harmonious than 

some of the recent debates we have had in the Judiciary Committee. 

The purpose of today’s hearing is to discuss a bill that Senator 

Kennedy and I have introduced to help ensure the continued vitality of live theater in America. I know that I am not going to be able 

2

to match the eloquence and incredible experience of our witnesses, 

so I will keep my remarks brief. 

I have come to believe deeply that the future quality of live theater depends on maintaining the artistic independence and individual expression of dramatists, while giving them a greater voice 

in the terms on which their works are produced. 

Due to the interaction of Federal labor, antitrust and copyright 

law, the dramatists and their voluntary peer organization, the 

Dramatists Guild of America, have been hampered, in their view, 

in acting collectively in their dealings with highly organized and 

unionized groups, such as actors, directors and choreographers, on 

the one hand, and the increasingly consolidated producers and investors on the other. As a result, playwrights, who are frequently 

at a substantial bargaining disadvantage, are forced to accept contracts on a take-it-or-leave-it basis. At least that is the allegation. 

I believe that if we truly want the next generation of American 

dramatists to flourish, we will need to give them a more organized 

voice on Broadway. The PLAY Act is a narrow measure that will 

allow playwrights, composers and lyricists, through either the 

Dramatists Guild or any other voluntary peer organization, to act 

collectively in dealing with other industry groups that operate both 

under and behind the bright lights of the American stage. In other 

words, it would permit these artists to sit down with their creative 

colleagues for the purpose of negotiating, adopting and implementing updated standard form contract terms. 

Importantly, the bill covers only the adoption and implementation, and not the collective enforcement, of an updated standard 

form contract. Thus, it would merely allow dramatists to replace 

the terms of the current standard contract, which I am given to understand has remained virtually unchanged for several decades, 

with amended terms that reflect the changing business and artistic 

landscape on Broadway. 

My hope is that the basic ability to update the standard form 

contract, as well as provisions ensuring that certain artists’ rights 

are respected in the production of their plays, will encourage 

young, struggling playwrights to continue working in the field and 

ensure the continued viability and vitality and vibrancy of American live theater. 

As a longtime enthusiast of theater and a lyricist myself, I am 

proud to sponsor the PLAY Act and would encourage my colleagues 

to join our efforts. I would also like to commend my friend, Senator 

Kennedy, for his leadership on this issue, and I thank other colleagues on the Committee in advance for their interest and willingness to be convinced that we should act favorably on this legislation. 

[The prepared statement of Chairman Hatch appears as a submission for the record.] 

So at this point, I will turn to Senator Kennedy, and when Senator Leahy gets here, we will turn to him. 

3

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman. First of 

all, thank you very much for having this hearing. It is enormously 

important. I am going to comment on that. 

You mentioned in your opening remarks that you were a longtime lyricist, and many of us have had the good chance to listen 

to your music and have suggested that you continue that career 

and give up your current one. But we have been unable to persuade you to do so. 

Chairman HATCH. I will if you will put some of that Kennedy 

money behind it. I think I would have a chance. 

Senator KENNEDY. You have been trying to get a hold of that for 

a long time. 

[Laughter.] 

Senator KENNEDY. Let me say it is a privilege to join with Senator Hatch in sponsoring the Playwrights Licensing Antitrust Initiative Act, and I look forward to today’s testimony from our distinguished witnesses about the impact of the bill on the American theater community. 

Our witnesses symbolize the highest level of achievement in the 

arts, and we have proposed this legislation because of our concern 

about the continuing erosion of support for the uniquely important 

work that they do. 

From the day he took office, President Kennedy made the arts 

one of his priorities for the Nation. He wanted the arts to be a part 

of our lives. Robert Frost was a major part of his inauguration. 

And, later, in dedicating a library to Frost at Amherst College, he 

said, ‘‘The nation which disdains the mission of art invites the fate 

of Robert Frost’s hired man, the fate of having nothing to look 

backward to with pride and nothing to look forward to with hope.’’ 

Clearly, we fall short on that mission in many aspects of the arts 

today. The bill we propose deals with one aspect of the issue, the 

need for greater support for the artists who create the plays and 

musicals that are an extraordinary part of the Nation’s modern cultural life. This bill will provide needed protections for those who 

create the plays and the musicals that are such an important part 

of our Nation’s modern cultural life. 

American theater has an unequaled and proud heritage. We have 

been blessed with some of the finest writers of the age. At the Kennedy Center, a celebration of the works of Tennessee Williams is 

underway. Enthusiastic audiences are preparing for new productions of ‘‘A Streetcar Named Desire,’’ ‘‘Cat on a Hot Tin Roof’’ and 

‘‘The Glass Menagerie.’’ Audiences return to these modern classics 

time and time again because they so magnificently capture the 

hopes and dreams that so many of us share in our own lives, and 

speak to the tragedies we suffer as well. 

These plays and so many other wonderful American works of art 

have enriched our lives immeasurably, and we need to encourage 

similar eloquent voices to be heard in the future as well. It may 

sound implausible to some, but the antitrust laws in our modern 

economy stand in the way of that goal today. The bill that Senator 

Hatch and I support will modify those laws and enable playwrights 

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ment for their work. The issue is fairness and this change is overdue. 

Currently, playwrights are prohibited from participating in any 

joint negotiation for compensation or control of their work. And because they are not members of a union, they must negotiate individually with producers of their work. Even for well-known playwrights, such negotiations are difficult. For emerging authors, they 

can be impossible. 

The legislation provides a way for playwrights and producers to 

agree on a package that provides fair return on the commercial use 

of their work, and I am hopeful the bill will be enacted to permit 

such negotiations to begin as soon as possible. 

We are privileged today to have a very distinguished panel of 

witnesses. Arthur Miller is in many ways the patron saint of American theater. ‘‘Death of a Salesman’’ opened on Broadway in 1949, 

and he has testified only on rare occasions in Congress, once at the 

infamous House Un-American Activities Committee and again before the Senate to call for literary and journalistic freedoms around 

the world. The fact that he is here today is a tribute to the importance of this legislation for his colleagues in the theater. He is 

widely recognized for his principled and courageous beliefs, and it 

is an honor to have him with us. 

We also welcome Steve Sondheim, who is an icon of American 

theater. He has collaborated with Hal Prince and Lenny Bernstein 

and our most gifted playwrights to create a body of work that includes ‘‘Sweeney Todd,’’ ‘‘Sunday in the Park with George’’ and 

‘‘West Side Story.’’ Welcome. 

We also welcome Wendy Wasserstein, who has won critical and 

popular acclaim for her works, and also for her leadership in introducing theater to public school children in New York City. She is 

a visionary writer and a compelling artist, and we are honored to 

have her with us. 

It is also a privilege to have with us Gerald Schoenfeld, who is 

Chairman of the League of American Theaters and Producers. We 

look forward to his testimony and his point of view on the bill. 

Thanks also to Roger Berlind for being with us. Mr. Berlind is a 

successful businessman and a producer, and we are grateful to him 

for coming today. 

I especially commend Senator Hatch for convening the hearing. 

There are so many issues before Congress that it is not always 

easy to provide appropriate attention to these important issues involving creative artists. We know that there are major financial 

considerations involved in producing plays on Broadway and in 

communities across the Nation. But we cannot accept the continuing systematic erosion of the rights of the geniuses who create 

the gold for the theater. This is our bottom line, and it should be 

the Nation’s bottom line on this key issue as well. 

Appropriate action by Congress can encourage new vitality in 

theaters in communities across America. Young artists must know 

that we respect their potential and we welcome their creativity. Especially in difficult times like this, it is essential to reemphasize 

that one of the founding principles of our Nation is that there are 

better ways to change the world than at the point of a gun. 

5

I thank all of you for coming and look very much forward to your 

testimony. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Senator Kennedy. 

When Senator Leahy arrives, I will interrupt whoever is speaking to allow him to make his statement or whenever he wants to. 

Senator Kennedy has introduced the panel, but I am going to do 

it again because it is that important. Turning to today’s panel, 

most of our witnesses need no introduction, so I will keep this 

short. 

Our first witness is Arthur Miller, the widely acclaimed playwright best known for authoring ‘‘Death of a Salesman,’’ for which 

he won a Pulitzer Prize, and ‘‘The Crucible,’’ which received a Tony 

Award. It is difficult to think of a more distinguished American 

playwright living today. If I am not mistaken, this may be the first 

time he has testified before Congress since the McCarthy hearings. 

Mr. Miller, we want to thank you for being here. We know it has 

been an effort to be here and we appreciate it. I feel certain that 

you will find this venue a lot more hospitable than perhaps the last 

time around. 

Next, we will hear from Gerald Schoenfeld—he will be witness 

number two—who is the Chairman of both the League of American 

Theaters and Producers, and the Shubert Organization. Mr. 

Schoenfeld has had a distinguished career both in the law and in 

the theater industry, and I certainly look forward to hearing his 

views as well. 

After Mr. Schoenfeld, we will hear from Wendy Wasserstein, another acclaimed playwright. 

Wendy, am I pronouncing that right—Wasserstein? 

Ms. WASSERSTEIN. Yes. 

Chairman HATCH. Wendy is the author of ‘‘The Heidi Chronicles’’ 

and the first woman to win both a Tony Award and the Pulitzer 

Prize in the same year for drama. 

Next, we have Roger Berlind. I have been absolutely amazed at 

how many productions you have been responsible for. I think everybody is in your debt. 

He is a theatrical producer who has achieved both commercial 

success and tremendously broad respect for his work on Broadway. 

His Broadway productions have won a total of 62 Tony awards for 

hits such as ‘‘Amadeus,’’ ‘‘Kiss Me Kate’’ and ‘‘City of Angels,’’ just 

to mention three, and there are so many others that I wish I could 

take time to mention. 

He is the principal of Berlind Productions and an outside director 

of Lehman Brothers, which indicates to me at least that he probably knows a thing or two about business. And I can understand 

where you have enough money to be able to risk on some of these 

ventures. 

Last but certainly not least, we will hear from the widely-celebrated composer and lyricist Stephen Sondheim, who is know for, 

as Senator Kennedy has said, works such as ‘‘West Side Story,’’ 

‘‘Sweeney Todd’’ and ‘‘The Assassins,’’ just to mention a few. He 

has received numerous Tony Awards, as well as the Pulitzer Prize 

for Drama for ‘‘Sunday in the Park with George.’’ 

6

You could go on and on on every one of these biographies, but 

we are just tremendously pleased that you would take time to be 

here in the interest of, I think, especially young creative geniuses. 

Most of you are going to be successful no matter what happens, but 

you are here testifying for young creative geniuses, and the businessmen are testifying on how to make this even better. 

So we are grateful to have all of you here and we will begin with 

Mr. Arthur Miller first. 

We will turn the time to you, Mr. Miller. 

STATEMENT OF ARTHUR MILLER, PLAYWRIGHT, ROXBURY, 

CONNECTICUT 

Mr. MILLER. I am very grateful for the chance to talk to you people. I think it is a wonderful thing that you are trying to do. I 

thought, instead of reading my statement which is available to you, 

that I would tell you a personal experience which indicates the 

baseline of the Dramatists Guild’s attempt to regularize the life of 

the playwright. 

Way back in 1940-something, I wrote a novel called Focus, and 

a then-famous Broadway producer named John Golden—there is 

still a Golden Theater on Broadway, which was his theater—called 

me and asked if I would come and see him to make a play out of 

this novel. I went down to Broadway, and above the theater he had 

this gigantic office with a barber chair and a piano and numerous 

photographs of himself with President Roosevelt and Mrs. Roosevelt. He was a very famous fellow. 

We talked a little bit about my novel. I couldn’t imagine how to 

make a play out of it, but I thought I would talk to him anyway. 

Then he left me for a moment. He was in his 80’s and had been 

producing plays for I don’t know how long, more than half a century. 

While he was gone, I noticed there was a bookcase full of books 

in leather bindings with gold leaf, and I got up and I took down 

one of the books and opened it up and it was called John Golden’s 

Plays. There were about, I don’t know, maybe 50 such books, and 

I leafed through a couple of them. 

And then he came back and I said, you know, Mr. Golden, I 

never knew you were a playwright, because on the title page it said 

John Golden and Joe Smith, or John Golden and Ralph Meyers, or 

something. He said, oh, I am not a playwright, but those are my 

plays. I said, well, are you then listed as an author? Yes? 

I said, well, how does that work? He said, well, I buy them. I 

said, I see, and I said, then they belong to you? He said yes. He 

couldn’t even understand why I was questioning him. And I said, 

then do you make changes in these plays? Oh, yes, whenever I feel 

I should, I change things. 

And my hair stood up, and I thought here is some poor playwright who spent a year or two or three, or whatever, writing a 

play and he sells it to this man, who owns the material and could 

change it any way he likes. 

And I said, what do you pay for a play? He says, well, that depends, of course; if it is a new writer, $500,000, something like 

that. And I said, you get all the rights, then? He says, oh, yes. InVerDate 0ct 09 2002 08:45 Aug 05, 2004 Jkt 095099 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95099.TXT SJUD4 PsN: CMORC
7

cluding the film? Yes. He says, I have to pay more if it is a wellknown writer. 

It was years later that I joined the Dramatists Guild with that 

in mind. That is the end game, that is the baseline, because an individual writer has no power on the economic stage, excepting by 

withdrawing his work. And a lot of writers who are young people 

can’t afford to withdraw their work. They may have put in a long 

spell of work and are helpless, basically, before the economic situation. 

So I won’t belabor the point, but any help that we can get to 

equalize this situation would be much appreciated. I think it would 

help revive the idea of playwriting. Formerly, the playwright was 

the king of the hill. He is now bringing up the rear because he has 

no clout, no economic clout, especially if he is starting out. 

I commend you for paying attention to this problem. I think in 

the long run our theater will benefit from it because it will create 

a kind of confidence on the part of writers that they can get a fair 

shake because, as you know, you can write a television show in a 

day or a week and make more than the playwright generally 

makes in a season. The same thing for films. 

We are up against terrible odds, and I would hate to see this art, 

which is one of the oldest arts known to man, disappear, as it is, 

I think, doing in New York. If I am not mistaken, there is one play 

on now on Broadway. That is not enough. 

So thank you again for allowing me to speak, and I will just add 

for this occasion the end of this statement. The legislation that the 

Chairman and Senator Kennedy have introduced is not intended to 

change the laws of economics. It simply says that playwrights 

should have a seat at the table. Failure to pass the legislation will 

continue the unfair bargaining situation that the playwrights find 

themselves in, and not only will the playwright and the theater 

suffer, but society as a whole. 

Thank you very much. 

[The prepared statement of Mr. Miller appears as a submission 

for the record.] 

Chairman HATCH. Well, thank you, Mr. Miller. We appreciate 

having your testimony. 

I am going to turn to Senator Leahy now for his opening remarks, and then we will go to you, Mr. Schoenfeld. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. I want to thank 

you and Senator Kennedy. You have brought the Broadway stage 

into the Judiciary Committee hearing room. 

I would tell all of you this is not really the crucible that some 

might think it would be. We actually are interested in what you 

have to say. 

I couldn’t help but think, Mr. Miller, that you could give a lesson 

to a lot of the professional testifiers who come here. I was at an 

Appropriations Committee meeting this morning and we had several people with long statements which we had all read, and they 

proceeded then to read them as fast as they could to make the 

light. And I think what you are doing is a lot better. You actually 

8

made us listen, which is not always easy to do, but then Mr. 

Sondheim and Ms. Wasserstein certainly know how to do that, too, 

and Mr. Schoenfeld and Mr. Berlind, I am sure, will. 

We tackle a lot of intellectual property questions in this Committee. We usually do it in a bipartisan way. I know tomorrow’s 

markup agenda, Mr. Chairman, has about a half dozen IP bills on 

it. They deal with copyright and patent problems, and come up 

with a new technology and distribution method. 

But the playwright’s question is a longstanding one. It is not one 

of these things that suddenly occurred because of the digital way 

of distributing matters. Mr. Sondheim, I know the matters you 

worry about when people can download music easily, and so on. 

I love live theater. One of my regrets was not seeing Brian 

Dennehy play in ‘‘Death of a Salesman.’’ I have known him for a 

number of years and I would have loved to have seen that opening 

scene when somebody his size comes in and slams down the suitcases. 

Mr. Sondheim, I don’t mean to be putting all of this on Mr. Miller. I have been entertained so much by yours. And I will stop at 

this point because I am going to leave people out. 

I just love going to the theater. I remember one time within 2 

days I had gone to a production of ‘‘Beauty and the Beast’’ and the 

next night to Patrick Stewart doing ‘‘A Christmas Carol’’ on a virtually bare stage, and both were fascinating. 

I am a proponent, as my fellow Senators know, of the new technologies which are making audio-visual works available at a higher 

quality and much lower price to a far greater number of people 

than ever before. I am interested in preserving and promoting the 

unique and wonderful experience of live productions of opera and 

of community theater. My wife is on the board of the Washington 

Opera. I see some operas I don’t like and I see a lot of operas I 

do like, but I love the fact that it is live. I think the best of the 

Internet age can coexist very well with what we have been doing 

on stage since the time of the Greeks. 

I am always very cautious about antitrust laws. They were designed to ensure that competitive marketplaces could operate without undue pressure. In large part, they have been effective, but I 

do recognize that markets can fail and adjustments sometimes 

must be made that recognize the imbalance. Maybe this is such a 

case. I don’t know. I want to hear more about the situation to make 

that determination. I have also asked the Department of Justice to 

share with us the views of its Antitrust Division on this proposal. 

We are a fortunate Nation to have so many wonderful, wonderful 

writers and wonderful artists. But I also want to make sure of the 

incentive for them to continue; that somebody who is in high school 

now and has a talent will continue with that talent as they go on 

so that all of you will have the benefit of them, whether you are 

running the theater or producing a play or writing it. 

So, Mr. Chairman, that doesn’t answer all the questions and I 

have no idea what I am going to do on this legislation, but I do 

think what you and Senator Kennedy are doing is extremely important and I am glad to be here. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

9

Chairman HATCH. Well, thank you so much, Senator. 

We will turn to Mr. Schoenfeld at this point. 

STATEMENT OF GERALD SCHOENFELD, CHAIRMAN, LEAGUE 

OF AMERICAN THEATERS AND PRODUCERS, AND CHAIRMAN, THE SHUBERT ORGANIZATION, NEW YORK, NEW YORK 

Mr. SCHOENFELD. I, too, want to thank you for the opportunity 

of being able to testify here today, and I hope that I will be able 

to put the matter before you in the perspective of the Broadway 

theater as it is today and in the recent years. 

The Shubert Organization is the owner and operator of 20 firstclass, legitimate theaters and one off-Broadway theater in the 

United States, located in the cities of New York, Washington, D.C., 

Philadelphia and Boston. It is also a co-producer of plays and musicals. Among its most recent productions are ‘‘Cats,’’ ‘‘Amour,’’ ‘‘The 

Heidi Chronicles,’’ ‘‘Sunday in the Park with George,’’ ‘‘Passion,’’ 

‘‘The Ride Down Mount Morgan,’’ ‘‘Indiscretions,’’ ‘‘Dirty Blonde,’’ 

‘‘An Inspector Calls,’’ ‘‘Amadeus,’’ ‘‘The Grapes of Wrath,’’ ‘‘The Life 

and Adventures of Nicholas Nickleby,’’ ‘‘Jerome Robbins’ Broadway,’’ ‘‘The Most Happy Fella,’’ ‘‘Children of a Lesser God,’’ ‘‘Bob 

Fosse’s Dancin’,’’ ‘‘Whoopi Goldberg,’’ ‘‘Pygmalion,’’ ‘‘Chess,’’ 

‘‘Dreamgirls,’’ ‘‘Ain’t Misbehavin’,’’ ‘‘The Gin Game,’’ ‘‘A Streetcar 

Named Desire,’’ ‘‘Lettice & Lovage,’’ ‘‘Skylight,’’ ‘‘Closer,’’ ‘‘Les Liaisons Dangereuses,’’ ‘‘Amy’s View,’’ ‘‘Little Shop of Horrors,’’ ‘‘The 

Blue Room,’’ and ‘‘Dance of Death.’’ Indeed, four of the playwrights 

here have had their plays produced by the Shubert Organization. 

I have occupied my present position for 32 years and have engaged in the negotiation of all of the various contracts involved in 

theatrical production, as well as in the collective bargaining agreements with the industry’s unions and guilds. I am personally familiar with the Dramatists Guild and many of its members, and I 

have personal knowledge of the matters hereinafter referred to. 

Obviously, the Dramatists Guild must believe it is subject to the 

antitrust laws of this country. Otherwise, it would not be seeking 

an exemption from its provisions. It is also obvious that an exemption from the antitrust laws is rarely granted. I submit that the 

Guild is not an organization that is deserving of exemption. 

Contractual relations between legitimate theater producers and 

Guild members, who are the writers of dramatic plays and musicals, are incorporated in a suggested contract known as the Approved Production Contract, the APC. Such has been the case since 

1985. Prior to 1985, an antecedent agreement incorporating many 

of the same provisions was promulgated by the Guild as a mandatory rather than suggested contract, and was known as the Minimum Basic Production Contract. 

Now, the APC sets forth minimum terms and conditions regarding the production of plays and musicals written by Guild members. These terms, among other things, relate to fees, advances 

against royalties; territorial restrictions; and participation in subsidiary rights, such as stock and amateur performances, motion 

picture, television and radio performances, and foreign performances both in the English and foreign languages. 

But the APC is a license agreement which grants the producer 

the right to produce the play as written by the dramatist, without 

10

any right to make any changes of any kind in the text, lyrics, or 

music. It also grants the dramatist the right to approve the director, the cast, the designers and all other creative elements of the 

play, such as the scenic, costume and lighting designers. The territory granted by the license is restricted to the United States, Canada and the British Isles. 

The APC also limits the period of time that the licensed rights 

may be exploited by the producer, as well as the duration of the 

producer’s rights to participate in subsidiary rights. The exploitation of all subsidiary rights is reserved by the dramatist, as are 

all other rights not specifically granted to the producer pursuant to 

the APC. 

In the event that a play or musical is initially presented in a 

non-profit or off-Broadway venue in the United States or in a foreign country, the license agreement governing such presentations 

usually contains a provision that in the event the play or musical 

is thereafter presented as a first-class production—that means on 

Broadway and other places in the United States—it shall be subject to all of the terms, covenants and conditions contained in the 

APC. Membership in the Guild is a coveted status, since members 

will derive the benefits of the APC. 

Now, dramatists are represented by agents who conduct the negotiations on their behalf. Certain negotiated provisions are added 

to the APC, such as billing, per diems, travel arrangements, accommodations, types of transportation, the number of house seats, approval of the venues, managers, press agents, attorneys, accountants, and certain additional financial provisions. 

Since the promulgation of the APC in 1985, and in order to accommodate changing economic conditions involved in the production of plays and musicals, a form of compensation for royalty participants, such as the authors, the directors, the designers and the 

producers, was created and is now known as the Royalty Pool. 

Now, the Royalty Pool, as distinguished from just getting a share 

of the gross weekly box office receipts, provides for a percentage of 

the weekly net profits to be allocated to the royalty participants in 

the following manner. 

The total of all of the royalty percentages is a denominator of a 

fraction whose numerator is the percentage paid to each royalty 

participant. So, for example, if the royalty participants are to receive 35 percent of the weekly operating profits and the total royalties amount to 15 percent and the dramatist’s royalty amounts to 

6 percent, the dramatist would receive 6/15ths of 35 percent of the 

weekly net profits. The dramatists and all royalty participants are 

also entitled to receive an agreed upon amount of money weekly for 

each royalty percent, regardless of whether there is any weekly 

profit. 

Now, the Guild has unilaterally decreed that in no event shall 

a dramatist receive less than a certain specified percentage of the 

total weekly net profits, regardless of what the dramatist might 

otherwise receive as a Royalty Pool participant. Of course, this has 

an impact on the ability of the producer to negotiate with other 

pool participants, since they too expect to receive pari-passu treatment with the dramatist. 

11

Unfortunately, these provisions of the APC are not left to negotiations between the agent and the producer. The ultimate party 

that is granted the right to approve the terms and conditions of the 

agreement negotiated between the producer and the dramatist is 

reserved exclusively to the Guild. 

The approval process is subject to what is known as the certification process, pursuant to which the Guild must certify that the 

APC, as negotiated at arm’s length, conforms to the minimum 

terms and conditions of the APC. If the Guild does not certify, the 

APC provides the agreement between the dramatist and the producer nevertheless may proceed, provided the dramatist, simultaneously with the submission of the APC to the Guild for certification, submits a letter of resignation to the Guild. 

This has resulted in a unilateral renegotiation of the APC, compelling compliance with its provisions upon pain of dismissal. I 

know of no agreement amongst producers regarding the terms and 

conditions to be included in an APC. 

In public offerings relating to the production of plays and musicals, the significant provisions of a dramatist’s agreement are set 

forth in the offering documents. They demonstrate no uniform provisions manifesting the existence of a conspiracy on the part of producers. Indeed, all dramatists are not equally talented. Yet, they 

must receive at least the same terms and conditions of the APC. 

The Guild and its members and their agents, by requiring compliance with the APC and its certification process, have had an impact upon the producer’s ability to enter into negotiation on equal 

terms with the Guild members. The Guild is not a labor union and 

thereby exempt by statute from the antitrust laws. If they are 

granted exemption, then all inventors, researchers, painters, novelists and creators of literary property other than employees for hire 

would also be entitled to exemption. 

Suffice it to say the conduct of the Guild and its members do not 

deserve an exemption, but they should continue to be subject to the 

strictures of the antitrust laws. They are the owners of their work 

and the copyright holder. To ask for immunity is to seek a shield 

from both prior and prospective antitrust law violations. If there 

are any restraints upon the production of plays and musicals, they 

are imposed by the Guild and its members and not by the producers or the venue operators. 

In addition, please accept an attached letter from the League of 

American Theaters and Producers. 

Thank you for your attention and your patience. 

[The prepared statement of Mr. Schoenfeld appears as a submission for the record.] 

Chairman HATCH. Without objection, we will put that letter as 

part of the record, as well. We will also put all full statements in 

the record to make sure that this record is complete. 

We will turn to you, Ms. Wasserstein, at this point. 

STATEMENT OF WENDY WASSERSTEIN, PLAYWRIGHT, NEW 

YORK, NEW YORK 

Ms. WASSERSTEIN. Mr. Chairman, members of the Committee, I 

want to thank you for the invitation to appear before you today. 

12

It seems to me very fitting that we address here in the Senate 

the power of the spoken word on stage and securing its future. Politics and plays have a great deal in common. Through the integrity 

and vision of the individual voice, they both create an arena to examine and advance the national character. In the theater, just as 

here, a well-crafted speech not only inspires change, but reveals 

our sense of morals, justice and ethics. As Oliver Wendell Holmes 

said, ‘‘Eloquence may set fire to reason.’’ 

But the independent voice that makes writing for the theater so 

compelling has become more and more endangered as the productions of plays are increasingly dominated by corporate interests. 

Moreover, the various individuals and groups necessary to ensure 

the success of any production have become increasingly organized. 

From the stage hands to the actors to the musicians, the directors, 

the choreographers, the hair stylists, the ticket sellers, to the press 

agents, all are represented by unions and all are able to bargain 

collectively. 

But, ironically, those of us who are the fundamental creators are 

not able to collectively protect our words. I remember when my 

play, ‘‘The Heidi Chronicles,’’ was celebrating its second year on 

Broadway and we had a party in the basement of the Plymouth 

Theater. All the props people, stage hands, actors and producers 

came, and I thought to myself we are here because I sat alone in 

my room and wrote a play. A play always begins with the word, 

and yet the creators of those words are not able to come to the 

table. The theater is a collaborative art form, and yet we are not 

able to collaborate in the future life of our plays. 

Today, as my colleagues have pointed out, more and more playwrights find themselves faced with take-it-or-leave-it contracts and 

pressures on their artistic integrity. Think of what the impact 

would have been to Arthur Miller’s ‘‘Death of a Salesman’’ if the 

producers had demanded that he change the end of the play to 

have a happy ending. Imagine, for the sake of selling tickets, if Eugene O’Neill had been persuaded to transform the Tyrone family in 

‘‘Long Day’s Journey Into Night’’ into a fun-loving Brady Bunch. It 

may sound absurd to you, but the pressures on young playwrights 

are enormous and they are increasing. 

Your legislation, Mr. Chairman, rebalances the equation. It does 

not force a producer to produce a play or pay a playwright for 

something they did not write. What it does is allow playwrights as 

a group to develop a standard form contract so that our work, our 

copyrights, are respected throughout the production of our work. 

This legislation allows us to update the standard form contract 

that was negotiated 17 years ago. Until now, under the shadow of 

antitrust laws, we have been unable to renegotiate. A lot of 

changes have occurred in the theater over the past 20 years and 

it is time that the standard form contract be updated to reflect 

those changes. 

Theater is a vital art form not only for its entertainment value, 

but also for the creation of our National community. Theater is the 

place where audiences learn to really listen and consider without 

distraction. Theater also inspires and challenges students unlike 

any other spoken art form. 

13

A number of years ago, I began a program in New York called 

Open Doors, in which practicing theater artists like the director 

Hal Prince take a small group of public high school students who 

have never been to the theater to eight plays over the course of a 

year. What we have consistently found is that the students felt 

that the theater was the medium, unlike film or television, where 

they did not feel manipulated or spoken down to. 

Kimberly Ebanks, a student at DeWitt Clinton High School in 

the Bronx, summed up our programs in a speech to New York City 

high school seniors by saying, ‘‘Seeing plays has changed me from 

a student who believed that in order to be successful in life, I just 

had to succeed at math and science. But life isn’t just about math 

and science. It is about hypocrisy, prejudice, love, joy, compromise, 

hate and conflict. These are the things that we don’t examine 

enough in life, but we do examine it in the theater.’’ 

This legislation will ensure that the kinds of plays Kimberly is 

describing can still be written by an individual author and not tampered with for the purposes of commercial success. It will also secure the protection of all playwrights’ words for future generations. 

My colleague, Stephen Sondheim, began the Young Playwrights 

Festival in New York. Every year, over 1,000 young playwrights 

under 18 from around the country submit their plays. This legislation will secure that the theater will remain a place where they can 

bring their unique vitality and insight. With this legislation, the 

privilege of writing for the theater will continue to be granted to 

every playwright. 

What unites all of us here today, Mr. Chairman, is that we hope 

this legislation is approved. Without it, I fear that the show will 

go on, but it will be a different kind of show entirely. 

Thank you. 

[The prepared statement of Ms. Wasserstein appears as a submission for the record.] 

Chairman HATCH. Thank you so much. We appreciate your testimony. 

Mr. Berlind, we will turn to you now. 

STATEMENT OF ROGER S. BERLIND, PRODUCER, BERLIND 

PRODUCTIONS, NEW YORK, NEW YORK, ON BEHALF OF THE 

LEAGUE OF AMERICAN THEATERS AND PRODUCERS, INC. 

Mr. BERLIND. Thank you, Mr. Chairman, Senator Kennedy and 

Senator Leahy. I am Roger Berlind. I am an independent Broadway producer. My theatrical producing career began in 1976. Since 

then, I have produced or co-produced over 40 plays and musicals 

on Broadway and many off-Broadway and regional productions, as 

well. The Broadway productions have won a total of 62 Tony 

Awards, including 12 for best production. 

Some of these are ‘‘Amadeus’’; ‘‘Nine’’; ‘‘Long Day’s Journey into 

Night’’; ‘‘City of Angels’’; ‘‘Guys and Dolls’’; ‘‘Hamlet’’; ‘‘Passion,’’ by 

my friend, Steve Sondheim; ‘‘A Funny Thing Happened on the Way 

to the Forum,’’ also by Steve; a revival of ‘‘A View from the Bridge,’’ 

Arthur Miller’s wonderful play; ‘‘Copenhagen’’; ‘‘Kiss Me Kate’’; and 

‘‘Proof.’’ This season, I co-produced the Pulitzer Prize-winning 

‘‘Anna in the Tropics’’ and the revival of ‘‘Wonderful Town.’’ Several 

14

of my productions were actually in partnership with Jerry 

Schoenfeld and the Shubert Organization. 

Before I began producing, I was in the investment banking business. My early partners included Arthur Carter, Sandy Weill, Marshall Cogan, Arthur Levitt and Frank Zarb. 

Through a series of acquisitions, we became a relatively large 

company. I am still an outside director of one of our acquisitions, 

Lehman Brothers Holdings. 

I became a producer not because it was a wonderful occupation 

for making money, but because I loved the theater, and it is my 

experience that almost every independent producer I know is besotted with a love of theater. 

As I understand the proposed legislation, the playwrights seek to 

be free from the restraints of the antitrust laws to which the rest 

of us must adhere. I don’t believe that would be a good idea, not 

for competition, not good for the theater, and ultimately not good 

for playwrights, particularly young playwrights without a proven 

track record. 

The essence of theatrical production is risk. There is probably no 

more speculative venture, and having been involved for much of my 

life on Wall Street, I know about investment risk. The risk/reward 

ratio in theatrical production is not enticing. We have a fiduciary 

obligation to our investors to construct a budget that offers investors a hope of recouping that investment and making a profit. The 

process begins with the initial agreement to license the rights to 

produce. 

I am told that the proposed legislation is designed to permit 

playwrights and producers to get together in a Committee of sorts 

to negotiate a standard form of license agreement for licensing 

plays and musicals. While I know that may sound reasonable, in 

practice it just won’t work. The proposal assumes that there are 

two positions that are quite opposed—a producer position and a 

playwright position—and that they will be engraved in stone. That 

is just not the case. 

There are way too many variables, and at least from the perspective of the producers we don’t all agree on structure, price or terms. 

Every show is different and we want the flexibility to negotiate 

those things in each and every different context we face. 

It is just a fact that one might not structure the same arrangement for a brand new, never before produced play by an unknown 

author as for one of the distinguished playwrights sitting here. 

That is not unfair. It is what allows the unknown author to become 

known. If the proposal were enacted, instead of a free market we 

would have a closed market with the Dramatists Guild somehow 

becoming a gatekeeper for adherence to pre-agreed terms. 

That is what we cannot accept and that is why there are more 

productions of plays by non-members of that organization than by 

members. As you probably know, foreign authors are not members 

of the Guild, with some exceptions, and revivals generally are by 

authors who are not members of the Guild. Many of them are deceased. 

The bottom line is that authors are not our employees. They own 

their works and we merely license the right to produce. If authors 

act in concert to dictate terms, they would be committing someVerDate 0ct 09 2002 08:45 Aug 05, 2004 Jkt 095099 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95099.TXT SJUD4 PsN: CMORC
15

thing akin to antitrust violations. A blanket exemption would be 

unwarranted. 

Producers are independent contractors. Authors are independent 

contractors. Producers do not have and shouldn’t have an organization that promulgates minimum acceptable terms, leaving authors 

in a take-it-or-leave-it position with no other options. Neither 

should authors have such a crude advantage. 

I must confess there is a disconnect in my mind between the motives for the legislation and the desire to improve the lot of young 

playwrights. If fair return implies a higher level of compensation, 

I don’t see how that would encourage the production of more plays 

by young playwrights. 

For an example, this year I produced a play called ‘‘Anna in the 

Tropics,’’ by a young playwright named Nilo Cruz. I picked it up 

from a production in Princeton and brought it to Broadway. There 

would not have been a possible chance of it happening if the Dramatists Guild APC had been applicable. We worked out something 

that was fair in my mind and in the author’s mind and the author’s 

representative’s mind, and we got a production up on Broadway 

and it won the Pulitzer Prize before we even brought it in. 

But it gave this young author an opportunity to be heard. It 

made his reputation. There are going to be many productions of 

‘‘Anna in the Tropics’’ around the country this year and next already scheduled. He came from nowhere and he was produced in 

what the Dramatists Guild might consider a sub-minimal contract, 

but it was terrific for the playwright because he got a career and 

he is well worthy of it. That ability to negotiate independently, I 

think, is critical for young playwrights. 

I thank you very much for your attention. 

[The prepared statement of Mr. Berlind appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Mr. Berlind. 

Mr. Miller, i know that you have had the flu. So if you need to 

leave at any time, we are just grateful to have you here and have 

your written statement, as well as especially your oral statement. 

Mr. MILLER. Thank you very much. 

Chairman HATCH. So we are going to let you go. Is that okay? 

Thank you for being with us. 

Senator KENNEDY. Thank you very, very much. 

Chairman HATCH. We appreciate it. 

We appreciate all of you being here. This is important and I appreciate both sides of this issue. It is interesting to me, and I am 

sure Senator Kennedy and Senator Leahy, as well. We just appreciate having you all here. 

Mr. Sondheim, you will wrap up. We will turn to you. 

STATEMENT OF STEPHEN SONDHEIM, COMPOSER AND 

LYRICIST, NEW YORK, NEW YORK 

Mr. SONDHEIM. Thank you. Mr. Chairman, I was president of the 

Dramatists Guild from 1973 to 1981 and am now a member of its 

council, as is Wendy. I would also like to note that joining us here 

today, although not at the witness table, are John Weidman, the 

current president, and Marsha Norman, our vice president. 

16

The purpose of our being here is to ensure that we leave a legacy 

of a vibrant theater world to the next generation of playwrights. 

The Dramatists Guild is the only professional association for playwrights, composers and lyricists. We work to advance the rights of 

our more than 6,000 members. Membership, incidentally, is open 

to all dramatic writers, regardless of their production history. 

The Guild is not a union, and because of our unique status in 

the theater, we do not come under the protections of the National 

Labor Relations Act. We do not necessarily meet the definition of 

employee that would allow us to bargain collectively, and that is 

what we are here to talk about, since it is at the heart of our collective concern about the future of the theater. 

As you know, Mr. Chairman, I have been working for some time 

with you and other members of Congress to promote this legislation. I have walked the halls of Congress and met with members 

and their staffs to highlight the problems in today’s theater. Your 

leadership on this legislation, along with that of Senator Kennedy, 

its coauthor, is deeply appreciated, and we are encouraged by the 

companion legislation which was introduced in the House last Congress by Representatives Hyde and Frank, legislation which will be 

reintroduced shortly. The breadth of support for this legislation 

shows that it is not a partisan issue confined by ideological boundaries. 

Arthur Miller spoke eloquently about the importance of theater 

to the Nation and I won’t embellish on what he said. But I would 

like to underscore his comment that we are not here today speaking for our own interests. We are speaking for others whose names 

may not be as well-known as ours. This may sound altruistic, but 

I assure you it is not. Without them, the theater has no future. 

Like Wendy and Arthur, I have been fortunate enough to have 

my work win critical acclaim, but if we and others like us can use 

our success to ensure the opportunity for others, then we truly will 

have spent our time here well. 

In walking the halls of Congress during these past months—and 

it is an awesome walk—I have learned that changes in our laws 

do not come easily, nor should they. Especially in the antitrust 

arena, change is very difficult to achieve. Exemptions should not 

come easily. Yet, case precedent has granted the same exemptions 

we seek to both choreographers and scenic designers, who are permitted to own their own work and bargain collectively. 

I believe that playwrights, lyricists and composers should be allowed the same opportunity, and that this proposed legislation is 

necessary. Lest this seem to be an adversarial issue with theater 

producers, I would like to quote to you a letter written to the 

Chairman and Ranking Member in support of this legislation by 

Harold Prince, my collaborator for many years since ‘‘West Side 

Story,’’ our first venture together, and a man who is generally acknowledged to be the contemporary American theater’s leading producer and director. As much as anyone in today’s theater, he understands both sides of the issue, since he too is both employer and 

employee. 

I quote, ‘‘As things stand today, some of the great plays and 

musicals that have not yet been written may never be. Increasingly, up-and-coming playwrights face pressures that are driving 

17

them to other media. Our core problem is to encourage a return to 

the negotiation process. Hiding behind arguments about antitrust 

prevents us from a practical confrontation. Producers and playwrights are natural allies, or should be. Before it is too late, we 

must save a vital resource of our Nation’s artistic life. I hope that 

your hearings will provide the momentum to get us back to the 

table. It sounds melodramatic—of course, I am in the theater—but 

time is running out. It really is,’’ end quote. 

Since there are serious questions about coverage of the Dramatists Guild under the NLRA, our ability to work cooperatively and 

take collective actions on behalf of our members might be subject 

to attack on antitrust grounds. A standard form contract updating 

the one that was agreed to as part of a consent decree more than 

two decades ago might be unenforceable as violating the antitrust 

laws. 

This is not just an economic issue, however. It is one of intellectual property rights. I, like my colleagues here, have often had to 

fight for these rights. For example, one show I wrote called ‘‘Merrily We Roll Along’’ is a piece that goes backwards in time. It starts 

with the end of the story and scene by scene proceeds back to the 

beginning. 

One producer tried to reverse the order of the play because he 

believed it would be easier for the audience to understand. Needless to say, it did not improve matters, but even if it had, it was 

not the show we had written or intended to be presented. Because 

I was a recognized name in the theater and had a certain amount 

of what is known as clout, I was able to protect the piece and stop 

the production, thus preserving the integrity of my intellectual 

property. Not every playwright is so lucky. 

It is partly due to this collective ability of the Dramatists Guild 

that those rights can be enforced. But under the outdated contract 

we now have with theater producers, our ability to negotiate realistically based on current market factors and realities is limited. 

As a creative artist in your own right, Mr. Chairman, you understand how important an artist’s intellectual property is. A limited 

exemption to the antitrust laws, as your legislation provides, does 

not choose sides. Rather, it will help create a competitive marketplace where all interests can be appropriately balanced. We all look 

forward to working with you and the members of the Committee 

on this important legislation, important not only to us writers, but 

to the future of the American theater as well. 

Thanks for listening. 

[The prepared statement of Mr. Sondheim appears as a submission for the record.] 

Chairman HATCH. Well, thank you. We appreciate all five of you 

being here today and it has been a really interesting hearing to me. 

Mr. Sondheim, let me just ask you this. When you were a young 

writer—and it was years ago—how do you compare being a young 

writer just trying to get a break compared to what young writers 

trying to get a break have to go through today? Is it the same? 

Mr. SONDHEIM. Well, first of all, there were many more productions in the old days or when I was young. There were many more 

independent producers. Costs were much less, so there could be 

more independent producers, as opposed to corporate producers, beVerDate 0ct 09 2002 08:45 Aug 05, 2004 Jkt 095099 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95099.TXT SJUD4 PsN: CMORC
18

cause it costs so much money to put on plays and musicals today. 

Therefore, as a young writer I got a much better chance to have 

my work heard and produced than young writers do today. 

Also, when I started in the theater there was no such thing as 

off-Broadway. So there was no other place to be heard, except on 

Broadway, and that was both good and bad. That is the essential 

difference. It is harder particularly for playwrights, also for writers 

of musicals, but particularly for young playwrights it is very hard 

to get work out there that can be commercially viable and let them 

afford to write the next play, because that is what it is about. Playwrights just want to be able to afford to write the next play. 

Chairman HATCH. You have collaborated closely with many producers over the course of your career. Do you believe that the proposed legislation would adversely affect the relationship between 

producers and writers, including young writers, in ways that some 

anticipate? 

Mr. SONDHEIM. No, I don’t, because it is a collaborative process. 

It seems to me, as Hal says, the producers and playwrights are the 

natural allies. They are the two who start the process. The writer 

starts the process, as obviously the only begetter. The producer is 

next in the process. It seems to me that what we want is collaboration rather than a kind of disintegration. 

Chairman HATCH. Ms. Wasserstein, let me ask you, just how extreme are the pressures on playwrights to accept a take-it-or-leaveit contract that contains perhaps unfavorable terms? And if you 

could, could you elaborate on the effect that these contracts have 

on artistic independence and even the integrity of dramatists? 

Ms. WASSERSTEIN. I think there is a lot of pressure on young 

playwrights, especially as the venue becomes smaller and smaller. 

If you think of it this way, there is, I believe, one or maybe two 

new American plays on Broadway this season. So a young playwright is really under a lot of pressure, saying, well, if you want 

to get your play done, you have got to accept this. Actually, by 

them being able to call the Guild and talk to somebody, it gives 

them a bit of backbone to know that they have right. 

The other thing is that, artistically, the difference between writing for theater and film or television, which is all wonderful, has 

to do with intellectual property, so that no word of a play can be 

changed without our permission. Once you start writing film or television, it is completely different. I think what we are talking 

about here is when those lines get blurred. 

To me, the Dramatists Guild and that fundamental right of ownership of the intellectual property of your work is what makes playwriting into the art form that it is. And the pressure to lose that 

right, I really think will fundamentally not only affect young playwrights, but it will fundamentally change the art form. 

Chairman HATCH. Let me go to you, Mr. Schoenfeld. Do you believe that the proposed legislation would adversely impact the profitability of stage productions? Or, in your opinion, would the increased vitality and creativity that we hope will result from our bill 

actually help the business end of these productions in the long run? 

I think I know what you are going to say, but I am not sure. 

Mr. SCHOENFELD. I hope I surprise you. 

Chairman HATCH. I hope so, too. 

19

Mr. SCHOENFELD. Candidly, I don’t know of any playwright that 

has abandoned the theater under the circumstances that have been 

described by the Guild. They leave the theater because the advantages financially are much greater in television and in movies. 

When you are confronted with a contract that sets forth what the 

minimum terms are, regardless of who the playwright is, and that 

is the starting point for your negotiation, you can only go in one 

direction and that is up. Human nature being what it is, that is 

the direction that the agents for the authors seek to achieve, although the original tenor, if you will, of the litigation that was 

brought in 1982 was that the dramatists would accept across the 

board, whether you were Sondheim or Schaffer or Neil Simon or 

anyone else, those provisions that were in the new APC. 

Now, those provisions in the new APC are exceeded regularly by 

authors. So we are put in a position now of how close can we come 

to the minimum provisions that are in the APC. The most frustrating unilateral thing that has happened is the intervention by 

the Guild unilaterally in the Royalty Pool, a term which we created 

or a device which we created to meet the impact of inflation and 

the impact of a royalty on gross receipts regardless of net profits. 

So out of sheer necessity, we created the Royalty Pool. That was 

interdicted by the Guild, providing that their members can receive 

no less than a certain percentage of the overall net profits. 

So this idea that we, the producers of shows today, are strangling 

the creative marketplace is not evidenced by any concrete examples 

that have been put before you today. And I ask you, are you entitled to the same terms and conditions for writing songs as Steve 

Sondheim is? Am I required to pay you the same basic starting 

terms as I am with Steve? 

Chairman HATCH. Are you implying that I am not as well-recognized as— 

Mr. SCHOENFELD. I am implying that your body of work so far—

I hope that it will emerge and flourish, but right now Steve has an 

economic advantage over you. 

Chairman HATCH. You did good. 

Mr. Berlind, my time is up, but let me just ask one question so 

I cover the whole panel. Your testimony brought up the financial 

risks involved in the production of a play or a production in the 

theater. In your opinion, is there any reason to fear that by allowing a collective negotiation of the standard form contract, the balance between dramatists and producers will be upset in favor of 

the playwrights in a way that would give too much weight to the 

creative side of the equation and unacceptably increase the already 

substantial risk taken by producers? 

Mr. BERLIND. I think, Mr. Chairman, the playwrights would not 

be concerned about this and this would not be the matter we are 

dealing with today unless they felt that the economic consequence 

of a new agreement would be more favorable. And while that might 

not be applicable to the more established playwrights, they are 

quite rightfully, I think, concerned with the young, unproven playwrights and protecting their rights. 

I don’t know how we would go from where we are today to a better economic opportunity for young playwrights with the revision of 

those terms. The way young playwrights can prosper is to get proVerDate 0ct 09 2002 08:45 Aug 05, 2004 Jkt 095099 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95099.TXT SJUD4 PsN: CMORC
20

duced, and to get produced, we have to create an economic model 

that allows for the possibility of a fair return. The fact that it is 

a new playwright operates against that concept because there is no 

name value in the playwright. 

Our business is to get plays on to discover new works, and I 

think we agree on that. How to get there is the open question, and 

if whatever we agree upon can be shot down arbitrarily by the 

Dramatists Guild, then there is no point in even going into negotiation in the first place. 

Chairman HATCH. I see. 

Mr. Schoenfeld. 

Mr. SCHOENFELD. May I just add one other observation? Most 

plays and musicals today originate elsewhere than on Broadway. 

They are originating in non-profit regional theaters throughout the 

United States. When a play originates there, there are no strictures whatsoever in the negotiation between the author and that 

regional non-profit theater. 

Not only that, though, there are strictures put on there at the 

place or origin on any producer who subsequently wishes to take 

that play further. That venue gets a share of the royalties. That 

theater venue is attached to that play on Broadway, gets billing on 

Broadway, sometimes gets participation in the author’s subsidiary 

rights, and that share of subsidiary rights is then sought to be imposed on the Broadway producer. 

So there are strictures in the pipeline. They are put there in the 

beginning as a result of the agreement between the author and the 

originating venue, and we become married to them as a result of 

a negotiation to which we had no part. 

Chairman HATCH. Thank you. 

Mr. SONDHEIM. If I may add to that, the strictures are put on 

by the producers at these venues, and understandably, because 

they want to share in whatever profits for their own theater so that 

they can afford also to put on more plays. 

I would also like to point out that we all want to put on plays, 

and the young playwright more than anybody. The young playwright is therefore in the most danger of being taken unfair advantage of. That is one of the reasons we are here, is to protect the 

young playwright. 

Chairman HATCH. Thank you. 

Senator Leahy. 

Senator LEAHY. Thank you. 

Let me follow up a little bit here. You noted earlier that playwrights are put in these kinds of take-it-or-leave-it contracts. 

I have read your testimony, Mr. Wasserstein, and Mr. Miller’s, 

and I understand the concern there. I also, though, always worry 

about creating any kind of an antitrust exemption. I am reluctant 

to do so. I think Congress made a very bad mistake, incidentally, 

in creating one for baseball. I think we have had some real problems as a result. I think we ought to get rid of the darned thing. 

Do either one of you know of any specific instances where a takeit-or-leave-it contract has forced a talented writer from the theater? 

I mean, you have talked about the fact that obviously some can 

make more money going off to write sitcoms or something like that, 

but a lot of people have a great love of the theater and stay there. 

21

But do you know of any instances where these take-it-or-leave-it 

contracts forced them away? 

Mr. SONDHEIM. Excuse me one moment, Senator. 

I wanted to get a good, specific example from Marsha. There was 

a musical of the movie ‘‘Shane’’ written by one of our Guild members, Sarah Schlesinger, and she was told by the producer that if 

she offered to sign a contract that had to have Guild approval, they 

would not produce the play, and the play was not produced. Marsha says there are 17 examples that she can name of such a thing. 

Senator LEAHY. I should note for all of you—and Senator Hatch 

may have already said this before I came in, but after you get the 

transcript back, if you want to add to something or you have a 

name or a date wrong, of course, you can do that. We are not playing ‘‘gotcha’’ here. 

Mr. SONDHEIM. No, no. 

Senator LEAHY. So if you want to add more, you can. 

Mr. SONDHEIM. Well, one of the things I would just like to say 

is that you asked about take-it-or-leave-it. The reason the Guild 

was formed in the 1920’s was because producers presented playwrights with take-it-or-leave-it arrangements. 

Senator LEAHY. I am going to actually submit some questions, 

but one I had was I understand that you have had the sort of same 

standard form contract since 1982. Is that correct? 

Mr. SONDHEIM. Yes. 

Senator LEAHY. If you had a renegotiation of the 1982 standard 

form contract—and obviously a lot of things have changed; Broadway or anywhere looks a lot different today than it did back then—

would that, in fact, violate antitrust laws if you wanted to renegotiate that? 

Mr. SONDHEIM. I don’t believe so, Senator. But, of course, I am 

not an expert on antitrust. I do know that what we want to do is 

just be allowed to negotiate or to renegotiate. 

Senator LEAHY. Has anybody from the producers threatened an 

antitrust question if you came back and said, look, we want to renegotiate this 22-year-old contract? 

Mr. SONDHEIM. I don’t know. They did then, of course. Excuse 

me. Marsha says they did it this morning. 

Senator LEAHY. Mr. Berlind, do you want to add something on 

that? 

Mr. BERLIND. Yes, sir. The concept of take-it-or-leave-it is really 

implicit in any negotiation. If both sides want to accomplish something, they will come to an accommodation. If one side wants more 

than the other, so much more that the other party can’t conform, 

then it doesn’t happen. You could call that a take-it-or-leave-it, but 

that is true of every negotiation or any business. It sounds draconian, but it is— 

Senator LEAHY. Any reason why they couldn’t renegotiate their 

1982 contract? If they all came together and said we want to renegotiate the 1982 contract, is that a violation of the antitrust 

laws? 

Mr. BERLIND. The problem with the 1982 contract is that the 

take-it-or-leave-it was given to the playwrights by dint of the certification requirement. Regardless of what the playwright’s wish 

might be—it might differ from the Dramatists Guild’s artificiallyVerDate 0ct 09 2002 08:45 Aug 05, 2004 Jkt 095099 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95099.TXT SJUD4 PsN: CMORC
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imposed conditions—the Dramatists Guild has the ultimate say in 

approving that contract. 

Senator LEAHY. But would it violate antitrust laws if they wanted to renegotiate the 1982 contract? 

Mr. BERLIND. Not wanting to renegotiate that. It doesn’t violate 

anything. 

Senator LEAHY. Mr. Berlind, there is only limited time. I am not 

going to play word games with you. Please don’t do that with me. 

Mr. BERLIND. Sure. 

Senator LEAHY. If they came forward and said we want to renegotiate that, is that violating the antitrust laws, in your opinion? 

Mr. BERLIND. No, I don’t think a renegotiation would violate 

antitrust laws. 

Senator LEAHY. Mr. Schoenfeld? 

Mr. SCHOENFELD. I would like to differ. If producers got together 

and agreed amongst themselves what terms they would afford 

playwrights, I believe that would be violating the antitrust laws. 

Senator LEAHY. Let me ask you this, Mr. Schoenfeld. Correct me 

if I am wrong on this, but I understand that scenic designers retain 

creative control over their intellectual property. Is that correct? 

Mr. SCHOENFELD. Yes. 

Senator LEAHY. As do playwrights, but they are unionized. Why 

shouldn’t we allow playwrights the same status as these designers; 

in other words, preserve their copyrights, but also grant them the 

power of collective bargaining? The designers have that power. 

Why not the playwrights? 

Mr. SCHOENFELD. Because under case law, they are deemed to be 

employees, and consequently they have had the privilege of forming 

a union and being exempt from the antitrust laws. The ability to 

deal with a designer’s work, make changes, of course, with the consent of the designer—but the originating structure, if you will, of 

the designer’s work is participated in directly by the producer and 

the director, and indeed the author. So there is a degree of flexibility that does not exist with the dramatist. I hope that distinction 

has been made clear by me. 

Senator LEAHY. I understand what you are saying. We have to 

make up our mind whether we agree with it, but I understand 

what you are saying. 

Mr. SCHOENFELD. Let me say this. I can disagree with the interpretation of whether or not those people are indeed—or put it the 

other way; I can say that those people are not entitled because they 

are independent contractors, but I have not had the support, if you 

will, in the premise. But the analogy that you make, as I say, is 

subject to the distinction that I have tried to provide you with. 

Senator LEAHY. People disagree all the time. You are going to be 

amazed to hear this, but there have actually been times when Senator Hatch and I have disagreed. 

Mr. SCHOENFELD. Well, I suggested to Senator Hatch earlier that 

he probably should have a guild for songwriters such as himself 

where he would be able to get a minimum contract for his work. 

Senator LEAHY. I think, Ms. Wasserstein, you wanted to say 

something. 

Ms. WASSERSTEIN. I just wanted to say that the position of the 

playwright is unique. I think in terms of antitrust, because of our 

23

uniqueness, this is not precedent-setting. There is a cloud over our 

negotiation in that we sit alone, we write a play, and then to put 

on this play we go into a collaboration. We are in a collaboration 

with the producers, the designers, the directors, everybody. It is not 

like we write a play and then we just submit it and go home. 

You are there; you are there through all the rehearsals. You have 

to sit through those previews. When those reviews come out, you 

are there. So it is a very unique situation in terms of intellectual 

property. We are the creators. It is our copyright, but we are involved in a collaboration with all of these artists. In fact, the play 

itself, as I said before, would not exist without us. 

So I think, therefore, this isn’t precedent-making. It is a unique 

situation and it has to do with creating, writing for the theater, 

uniquely for the theater, not film, not television. Therefore, it has 

to do with the future of the art form. 

Mr. SONDHEIM. I would also just like to add that Jerry is right 

when he says that there is input into the scenic designer’s work by 

the director and the playwright. But he is wrong when he says 

there is not exactly the same kind of input put into the playwright’s work, just the way choreographers also own their own 

work and are both employers and employees. They own their intellectual property, but they aware, if they are any good, that it is a 

collaborative effort. I know of no good playwright who doesn’t collaborate in the same way set designers do. 

Mr. SCHOENFELD. Senator Leahy, if I could make one post-comment, I do a play on Broadway; I want to do it someplace else. I 

can change the scenery, I can change the designs, I can change the 

director. I can’t make any changes in that play. I am married to 

that. I am not married to anybody else. 

Mr. SONDHEIM. You can make changes in the play if you talk to 

the playwright. 

Mr. SCHOENFELD. I understand that kind of a unilateral conversation, yes, I do. 

Senator LEAHY. I am intruding on Senator Kennedy’s time and 

he is senior to both of us here, so I don’t want to do that anymore. 

I will submit some questions, though, and I wish you would look 

at them carefully. I do appreciate all of you being here. I always 

wrestle with this question of any kind of an antitrust exemption. 

I am not always sure we are dealing with arm’s length transactions, but I will read your answers very carefully. 

Thank you, Ted. 

Chairman HATCH. Senator Kennedy, we will turn to you. 

Senator KENNEDY. Thank you very much. Just to come back to 

what Mr. Sondheim said, I was just listening to our introduction 

where we were talking with Roger Berlind about ‘‘West Side Story,’’ 

one of the great successes, and you could mention many of them. 

It is difficult, where you have Lenny Bernstein and yourself and 

Mr. Berlind, that your people aren’t working together to try and 

make it a great play, a great musical. I think many of us have seen 

all of those pictures at the rehearsals, where virtually all of you are 

out there all trying to work on a common purpose and a common 

design. 

I imagine you are always looking at the reviews: the play is too 

long, the language isn’t good, all of these kinds of things that come 

24

in. As a politician, you make a bad speech, you have a bad day, 

and you want to try and get it right. You are trying to all be part 

of a team on this. 

It is extraordinary to me at the end of the day when you consider 

that you have two ingredients here. You have one that is going to 

be the producers and the other the creators, but in the meantime 

all the other people get paid before you. I mean, the actors get 

paid, the musicians get paid, the stage hands get paid. The rental 

costs go up. The makeup people get paid, the dressers get paid, the 

ushers get paid, security gets paid. Everybody gets paid. 

Yet, you are the essential, maybe the other end in terms of the 

producers, but you are the essential; you are the one that sits in 

that room and writes that first word. I mean, having listened to all 

of it, it is difficult not to say at the very end that you are getting 

the short end. I mean, that is just the way it comes across. 

You can take a hard position and say, well, look, we are locked 

in and nothing can be changed or altered in any of these, and every 

one of these other people have to work and we have to risk. But 

everyone takes a chance on this. They are risking, as well. 

You could say, well, it is collective bargaining and the definition 

of ‘‘employee,’’ and then you get to define ‘‘employee’’ under the 

law. What we are trying to do is find a way where we can make 

sure that people that are going to be creative, the younger people—

and I have enormous respect for all of you coming down here today. 

You didn’t have to do it. 

I have enormous respect for those who are in the creative aspect 

because none of them had to do it. And around this town, most people don’t have that kind of an attitude. The fact that they are here 

and willing to do it is enormously impressive and important, and 

carries a lot of credibility, quite frankly. I am sure that is true of 

our friends from the producers. 

And that is the dilemma, it seems to me. This is not an even balance. You can say, well, we can take this and we can go to some 

other place; all of these people aren’t going to get employed and we 

can go to any other place. They are the ones that are writing and 

that are creating, and it seems to me to be a balance and they are 

pretty much at the short end. 

You can look through to the final end about who gets paid. The 

Royalty Pool is 35 percent of the weekly profits, and then it is 6/

15ths of 35 percent. This is a pretty thin reed on this for people 

that have as much—you know, people who are creative can be big 

losers, too. 

Mr. SONDHEIM. Two years of your life. 

Senator KENNEDY. That is a big chunk of time and that is a big 

loss, too. I think it does present a dilemma. We don’t want to get 

caught up in just these words that can be hidden behind. I know 

people aren’t looking for hiding behind them in order to try and leverage a particular position. Maybe people are; maybe people will 

be. I mean, they do that all the time around here. But we ought 

to be able to get this so that we are not going to lose that kind of 

capability. 

Mr. SCHOENFELD. May I just say one thing so I don’t appear to 

be put in the realm of somebody who is grasping here? 

Senator KENNEDY. Sure. 

25

Mr. SCHOENFELD. When we enter into the APC, we are required 

and we agree to a substantial payment as a fee to the author in 

the tens of thousands of dollars, and a substantial advance against 

royalties to the author in the substantial tens of thousands of dollars. So up front, that is the largest payment made to anyone in 

the collaborative scheme. 

Furthermore, if we don’t exercise the option, we lose those payments. So the other people are getting paid when the show is being 

presented in the theater, as indeed the author is. Certainly, the 

disparity between what the author receives and what these other 

people receive is, I think, due recognition of the author’s contribution to the play, to the work, to it being there, which I agree completely is the raison d’etre that we are here today. 

Mr. SONDHEIM. Well, we all agree that it needs to be renegotiated, so let’s renegotiate. 

Senator KENNEDY. I have been fortunate to have a very, very 

good friend, as a matter of fact, someone that worked not on this 

Committee, but on the HELP Committee for 10 years, and went 

into producing and happened to get very lucky. He has just made 

a very big chunk of change. 

I think that we need more people that are going to be involved 

in all this, in producing and getting more help and assistance in 

terms of taking some chances with writers. I think I would certainly be open to all of that kind of consideration in terms of support. Other countries do a lot of other things. I don’t think the 

mood is probably there now to try and do what they do in other 

countries. 

I was very, very fortunate to know my son Teddy’s roommate, 

who was the screenwriter for ‘‘A Beautiful Mind.’’ He was a classmate of my son Teddy’s and now is making more money that you 

can possibly imagine, a very talented, creative kind of a person. He 

has talked to me about some of these things. He comes up and visits with us. He is godfather to my grandson and a very capable and 

wonderful, wonderful writer. 

I hear from him exactly what I heard from Mr. Sondheim and 

Mr. Miller and Wendy Wasserstein. I hear exactly the same kind 

of thing. He has made it big out there and he is staying out there. 

I am not going to bother you with personal stories. He was out 

there and was sort of a wordsmith for some of the productions for 

his classmates. Many of us have listened not only to the other side 

of the table here, but also have been listening to some of what is 

happening out there. 

I want to thank to thank the Chairman. This has been very informative and helpful. I think the Chairman would agree that the 

best thing is to try and get all of you together and to try and come 

up with something that we can work out and all work on closely 

together. 

Senator Hatch and I know we have been able to work together 

and been able to get things done. We have worked together and we 

have compromised and gotten things done. We have worked together with groups that have gotten things done, and that is the 

best way to try and get things done around here. But other times, 

if there is unfairness, then we have to try and sort of deal with 

26

those issues as well. We are hopeful that we can try and do this, 

and do it right and well. 

I want to thank the Chair. As the Chairman of the Judiciary 

Committee, Orrin has a lot of things to do and he has spent a lot 

of time on this. 

Finally, I want to thank Wendy Wasserstein for all her work on 

the arts. 

Ms. WASSERSTEIN. Thank you. 

Senator KENNEDY. That is a wonderful program. 

Ms. WASSERSTEIN. Yes, it is. It is a great program. 

Chairman HATCH. Well, thank you, Ted. 

I want to thank all of you for being here. As somebody who has 

written music for 10 years mainly as an enjoyment, something that 

is uplifting and helps me to tolerate serving on this Committee 

with Senator Kennedy and Senator Leahy— 

[Laughter.] 

Chairman HATCH. It expands your mind and it keeps your creative juices going. It helps you to be more empathetic. There are 

so many advantages to writing music, but not all of us can be a 

Stephen Sondheim. Now, I am aiming for that in my spare time, 

what little I have. 

But I do know one thing, that songwriters have a very, very difficult time. I can name some of the greatest writers in this country 

that barely get by. By the time they recoup from their royalties 

what has been paid to keep them alive while they have been writing, they really don’t have an awful lot to show, some of the best 

writers in the country. It is a tough way to make a living. I think 

it is even tougher to make it into live theater; I think much tougher than that. 

I mean, for the short time that I have written music, I have been 

fortunate to write with good people. I am certainly not getting rich 

from it, but I will never forget when I got my first royalty. It was, 

I think, $62 or something like that, and I was an ASCAP national 

meeting, about 1,000 writers. I said I just got my first royalty 

check for about 60 bucks, and I held it up and the place went wild. 

I mean, they stood on the chairs and clapped and cheered. And I 

thought, my goodness, they sure treat us members of Congress 

nicely. 

I sat down next Marilyn Bergmann and she said, Senator, the 

reason they are so excited about your first royalty check is that 

there are a lot of wonderful writers out there and hardly any of 

them will ever get a royalty check. 

Mr. SONDHEIM. But ASCAP is the protective organization for all 

of us. 

Chairman HATCH. It is the protective organization, but my point 

is that I wish we could come up with some way that could help people to be able to break through the difficulties in making it, because I see some people who just give up who are marvelous 

geniuses in music. I can imagine how much more difficult it must 

be in the fields that we have been talking about here today. 

You business folks deserve a lot of credit for taking the risks and 

doing the things that you do. On the other hand, I don’t see where 

you are going to be tremendously hurt if you can negotiate a similar agreement. 

27

Now, you need to write to me, Mr. Schoenfeld, and you also, Mr. 

Berlind. We are open to your ideas, but it seems to me it is not 

going to hurt you to work out an agreement that would be applicable for the benefit of these young writers, as well as older writers. 

We can opine up here all day long, but you are the people who are 

the experts and I feel like we have been greatly blessed today to 

hear from you real professionals and it means a great deal to me. 

We love what you do. We love the creativity. We know what 

comes from it. We know the uplifting qualities for the most part 

that theater has throughout America, we know what it has meant 

to this country, and we want to keep you going. We want to make 

sure that somehow or other there is going to be an expansion of 

these creative rights in the future, and you have got to help us to 

know how to do it. With all of the invasions of privacy today and 

all of the ways of stealing and taking advantage of artists and creative people, we have got to have some help from you experts. 

So, with that, we are grateful that you all took the time to come 

here. I am grateful that my colleagues have been with me here and 

we will see what we can do to resolve this matter. Thanks so much. 

The Committee stands adjourned. 

[Whereupon, at 3:46 p.m., the Committee was adjourned.] 

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