[Senate Hearing 108-548]
[From the U.S. Government Publishing Office]



                                                        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


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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            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


 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 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.

 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 to negotiate minimum compensation 
packages as fair reimbursement 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.
    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.''
    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. Including the film? Yes. He says, I have to pay more 
if it is a well-known 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 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.]
    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 
first-class, 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 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.
    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.
    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.
    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 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 something 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.
    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 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, because 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-leave-it 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.
    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 produced, 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 
take-it-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. 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 
artificially-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 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 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.
    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 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.
    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.]
    [Submissions for the record follow.]

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