—He’s getting up anyway, I couldn’t . . .
—I’m sure all this will keep until Harry gets out here with some bad news of his own, isn’t that what he told you yesterday when he called?
—Only something about Oscar’s appeal that he said may not please him before he sees the . . .
—Well of course that’s a lawyer’s delicate way of putting things, I mean he could say it may not please you to learn that we think you have cancer thank God he’s coming out here, imagine Father making that law clerk his executor? Taking the bus, I mean he’d certainly been drinking or he’s particularly dense, telling me that we’re the survivors the whole world knows it, it’s right here at the tail end isn’t it? with a flourish of the paper,—Judge Crease was married to the daughter of a wealthy Long Island architect and landowner, the former Winifred Riding, and following her early death for a second time to a Mrs Mabel, a Mrs? that’s my mother, what do they mean a Mrs! Surviving are his son, Oscar L thank God they didn’t say Oswald, Oscar L Crease, a historian and playwright well that should please him, who resides on Long Island, and a stepdaughter, Christina Lutz, of Manhattan and Lily, get the phone if it rings before he does, it might be the newspapers or God knows who and put this out of sight somewhere will you? I mean speaking of survivors there’ll be plenty of time for it if we’re all still in one piece after his gala television premiere tonight, now what time is it. I had some tea didn’t I? Where did you, oh. Oscar, here, sit down here, here’s a pillow. You look perfectly awful.
—Well I am! Wouldn’t you be? breaking off in a torrent of coughing, seizing the arm of the sofa where he came down unsteadily. —Where’s my paper.
—The paper’s right here, just relax. Some hot tea Lily, I’m sure this is cold by now anyway, and . . .
—Not today’s paper, yesterday’s! I had it in there, that ad for the movie who took it.
—Without milk Lily, and put a little whisky in it, it’s right here somewhere Oscar I’m sure you’ve read it a thousand times and Lily? put a little in mine too will you?
—A magnificent soul searing epic here it is, they all ought to be shot. Did you see this? gasping, a hand pressed at his heaving chest—this whole revolting . . .
—Just try to be patient till this evening, I’m sure it will be far worse than you imagine. Harry’s coming out later to cheer you up.
—The war torn saga of a man fleeing destiny for a woman’s love, introducing the magnificent Nordic-Eurasian discovery Anga Frika in her first starring look at her! The war torn, why is he coming out here, has something happened?
—I’m sure he’ll tell you when he gets here, now for the love of God stop torturing yourself and here, here’s this morning’s paper you can read about three teenagers slain in drug shootout while we, no I’ll get it sit still! and she was up holding the phone as grudgingly impatient as her tone, turn left, go straight, turn right through the gate, fourth drive on the left —some woman for your job as a secretary, you put an ad in the local paper?
—I told you didn’t I? all this correspondence and bills and the phone . . .
—And you plan for her to pay your bills, how do you plan to pay her, you can talk on the phone yourself can’t you?
—I need a secretary to talk to other people’s secretaries! Right now I have to try to reach . . .
—With a voice like that you shouldn’t try to reach anyone, you sound like a . . .
—Well there, you see? isn’t that what I just said? the renewed splurge of coughing giving way to a wheeze that settled him back against the cushions glaring at the three teenagers slain in drug shootout until a steaming cup rattling its saucer came down beside him and where were his glasses? rustling the pages past global strife from Londonderry to Chandigarh, raising his emptied cup with the mute appeal of the toothless Tibetan hoisting a begging bowl at him on page sixteen and on through the smug scoldings of the editorial redoubt to a hissing demand from the flurry of paper for —the business section? Christina?
—I heard you, what on earth do you want with the business section.
—Something here on tearing down a Broadway theatre to build a pizza palace, it says continued on page D sixteen that’s the business section where is it.
—God only knows, they forgot to put it in. Do you want an omelette for lunch?
—I want the business section!
—Well I don’t have it! Here, you can read your mail while I finish dressing, a brand new law firm entering your life. Will you ask Lily to fix you something when you’re ready? and she fled for the stairs before he could tear the envelope open beyond reach of the howl of her name and a gagging sound almost like laughter still echoing when she came down.
—It’s, look, look you won’t believe it.
—I’m sure I will. Who are you suing now.
—No they’re suing me! The O’Neill estate Christina, the estate of Eugene O’Neill they’re suing me for infringing that old chestnut Mourning Becomes Electra, of all the . . .
—All the profits yes, I really don’t want to hear about it. I’m sure they’ll love the movie.
—No they’re suing them too, they’re suing all of us, they’re . . .
—I said I don’t want to hear about it! When Harry gets here you can share it with him, now where’s Lily, we’ll need to do some shopping. Have you had anything to eat? We need bread and, yes and whisky, we’ll certainly need more scotch before all this is over, Lily? Will you bring in a blanket or something to put over him while we’re out? do you hear me? And popcorn for this evening, it sounds like the kind of a movie you watch eating popcorn.
—Wait, Christina? he gasped out minutes later, pulling the quilt up under his chin —will you get me some ice cream? did you hear me? But whether she had or not, all he heard was that door up the hall clattering closed, fumbling among the cushions to snap the screen to life with Indians, cavalry, the sound of gunfire; white faces, dreadlocks, the sound of gunfire; bank guards, men in hats, the sound of gunfire; choppers, flaming hooches, snapping off the crash of gunfire as his eyes flickered closed and his mouth fell open hungering for breath which gradually subsided as his hand twitched and fell still as the shadows cast over him by the sun streaming in from a sudden break in the clouds out there, sudden as a shadow the shape of a man standing over him —No who are you!
—I’m fine Oscar. Wake you up?
—I, I, oh. Oh, Harry.
—Sound like you picked up a little cold someplace. Where is everybody.
—Who. Oh. They went out didn’t they. Can you hand me those, that box of tissues there? and a cough brought him struggling upright, —an awful way to start the day.
—Well, can’t be too surprised though can you? He’d put his case down by a chair and stood there peeling off his coat, —comes along sooner or later as it must to all men as they say, taking it pretty well though aren’t you.
—A little hard to breathe yes, but it’s mainly the cough, my throat feels like sandpaper.
—I meant your, you’ve talked to Christina?
—She’s not much help. I asked her to get me some ice cream but I don’t think she heard me.
—But she, oh, yes I see, yes you, you haven’t seen the paper?
—This morning’s? It’s right there somewhere, tearing down the old Century theatre to build a pizza palace for the barbarians waiting at the gate listen Harry, I’ve got to talk to you before they get back and it all turns into a circus listen, this movie? you’ve seen that ad haven’t you? this soul searing Civil War epic and their great Nordic-Eurasian discovery with her shirt open? Tonight, the gala television premiere they’re showing it tonight how can they, you’ll still be here?
—What I came out here to talk to you about Oscar, they . . .
—But how can they show it on television, the movie theatres can’t show it with that injunction can they?
—That’s what I came out to talk to you about, they . . .
—And this letter where is it, the
Eugene O’Neill estate wants to sue me they’re suing the studio Kiester all of us what did they do, wait for my profits to start rolling in and then show up with a lawsuit? that’s laches isn’t it? didn’t you tell me about laches?
—Look Oscar, part of what I came out here to talk to you about, just let me get my coat off? and he sank down slowly in the chair, —now . . .
—But this injunction, they can’t . . .
—Got it lifted once the appeals court ruled on your master’s decree on the profits and the accounting, show it anywhere they want to. This one time television exposure they’re probably trying to bring the exhibitors back to life, afraid of breach of contract suits from these tie-ins, merchandising rights, T shirts, games, spinoffs, comic strips like your dog Spot and Cyclone Seven, novelization with Anga Frika’s tits on the cover probably already on the racks at the airports, You’ve seen the movie now read the book and if there’s no movie they’re up the . . .
—No but what, wait, what book there wasn’t any book.
—What’s called novelization Oscar, look. Somebody writes a novel and the studio buys the rights, runs it through a dozen script writers before they get their final shooting script they pay some hack seven or eight hundred dollars to turn into a novel in time to get it on the racks when the movie’s released, works both ways. Read the book now see the movie.
—But there already is a novel, you said they buy the rights to a novel and . . .
—Not what’s up there on the screen is it? Get through the squabbles between the writers the director the stars and what you end up with’s probably miles away from where it started, just confuse the man at the airport who’s looking for Anga Frika’s tits and . . .
—But the book they, what happens to the novel they bought in the first place to . . .
—Dead in the water. You think any studio’s going to sign a contract with a droit morale clause in it? Point here is they’re trying to cut their losses, get back on track with their tie-ins and spinoffs start their cash flow moving again that’s what I’ve come out here to talk to you about, now . . .
—Yes, yes good I’m glad to hear it I was getting worried I even, that new car out there you saw it, I just made the first payment and . . .
—No new car out there Oscar, all I saw when I drove in was an old brown . . .
—No it’s out there, it’s just like yours it’s a new, wait, they took it. They took it! They took it shopping they didn’t even ask me, I haven’t even driven it myself yet and she took it without even asking.
—A little reckless Oscar, a car in that price range you . . .
—No she’ll drive carefully but, but she could have asked me couldn’t she?
—I mean getting it in the first place, talked to your friend Lily there when I called and told her you’d better show a little restraint until the . . .
—Yes! Yes that’s why I’m relieved but the main thing, listen. My play, I’ll be able to produce it myself now, isn’t that the marvelous irony in the whole thing? This piece of, sitting here tonight eating popcorn watching this piece of trash on television paying to put my play up there on the stage where it should have been in the first place yes the worse the movie is the better, the more tawdry, vulgar, bloody it is the better, that’s justice isn’t it? if you want poetic justice?
—Oscar look, that’s what I came out to . . .
—No but the point of it, the whole point of it Harry listen. All this trouble and pain and years of misunderstanding with Father it’s been mainly my fault, it’s all been my fault for having no faith in him because I thought he didn’t have any in me and this play and all of it when he was standing behind me all the time because that’s true isn’t it? that he wrote the appeal?
—Had to be, it had his handprints all over it that’s what had Mudpye climbing the walls, little bastard expected to get up there with his long fancy oral argument and give those shrewd old hands on the bench a lesson in State law preempting the Federal statutes I don’t think they gave him three minutes. One look at that appeal brief they didn’t doubt for a second it had come from a colleague, never prove it of course but I think they knew where it came from, turned Mudpye’s performance upside down on its face and left him out in the cold that’s why he’s out for blood in the second round here. I could have called you but I thought I’d better wait till I could come out and run through it with you in case you’ve got any questions, afraid you won’t be too pleased with what they’ve come up with here reviewing the master’s decree on your damages.
—Who. All the profits yes, they who.
—The appeals court Oscar, look. You understand how this whole legal proceeding works don’t you? He had out a folder, snapping the case closed on his lap —what you’ve got here, this is your final decree from the Second Circuit entered on the accounting they directed when they reversed the district court and it went to the master to determine your award, mind if I turn this thing off? and he was up again in the flickering light of the silent screen where a lively fellow fled the torments of diarrhea in what appeared to be an international airport, —told you they’d come back trying to get your award reduced didn’t I? and he sat down again, now at the foot of the sofa opening the folder —now, you see here. You were awarded all the profits they made from exhibiting the picture The Blood in the Red White and Blue and the question is whether that was correct.
—Well of course it was, they stole my work and have to give me all their profits in damages it’s that simple, isn’t it?
—No. They insist that the profits should have been apportioned. Here, that the recovery of the author of a copyrighted work ought to be limited to those profits which result from its exploitation; and that since the value of the picture here depended only in very small measure upon those parts which the defendants have been found to have lifted, they should be accountable for only a correspondingly small part of the . . .
—Well that’s, they can’t do that no that’s ridiculous, they stole it didn’t they?
—Point is Oscar, all right look. Write a poem, somebody lifts it, publishes it elsewhere with his name on it simple case of plagiary, same words printed on a piece of paper, a movie’s something else, the profits come from the people who pay to see it with the hope of enjoyment don’t they? He thrust the stapled pages at the quavering hand on the quilt, —here, look. That enjoyment, which is one source of its further popularity, is made up of many factors: the actors, the work of the producer and director, the story, the scenery and costumes. The attraction and the hope which first draws them are principally aroused by advertisements, and the reputation of the stars and the producing company. These factors have no unit common to all, and are therefore incommensurable; in that, the situation is not different from the usual case of copyright infringement where the pirated material has been mixed with matter in the public domain. They’ve usually just tried to get the net profits down as low as possible, what the court’s saying this time is that no matter how little the defendants say the value of the picture depends on what they stole, it’s right here, the infringer carries the burden of disentangling the contributions of the several factors which he has confused. Your appeal didn’t bring up that point and here, the court undertook sua sponte to declare that the plaintiff should recover all the profits and they moved to modify that so they could prove the value of their own contribution, move over a little so I can get my jacket off will you?
—Their own contribution! gone in a spasm of coughing, —nothing but a lot of, of . . .
—Gets into patent accountings here where the infringer has to separate the profits from his own contribution where it’s just as unfair here to cast the infringer for all the profits as it would be to deny the patentee or the author any recovery because he can’t separate his own contribution so the court puts the burden on them, you see? riffling through the pages, —what this whole thing is all about?
—No.
—All right, look. They claim everything they can an
d throw in the kitchen sink, some of it’s allowed some of it isn’t. Down here for instance, whether the profits from showing it outside the United States should be included, the court holds that the plaintiff, you the plaintiff, had an equitable interest in the negatives the minute they were made in this country where it was a tort so the law impresses them with a constructive trust. Here the master has used the cost of production as the basis for figuring the distribution cost the defendants have put in under overhead expenses they’ve tried to spread over their other pictures and the court holds for the master, same thing here where they’ve disallowed a five million dollar studio overhead item for stories or screenplays they bought that were failures or weren’t made at all I, just let me get up for a minute? drawing away from the seething breath mingling with his own, —little early for a drink but that’s a long drive out here, just give me a minute while you run through the rest of this?
—Harry? when he came back swirling ice in a glass, standing there loosening his tie —listen, I can’t read all this, interest disallowed on a loan made to Erebus from one of their subsidiaries where the master has included in the overhead only the interest on the plant investment used in making the picture? that overhead that doesn’t assist in the production of the infringement shouldn’t be credited to the infringer and this allowance for continuities that were scrapped and pictures that were made but never shown and all the rest of, and this. And this Harry? legal costs? where the master allows only those legal expenses directly incurred by the, but that’s me! I mean that’s you, that’s your law firm defending them against me for stealing my . . .
—No look Oscar, a lot of legal expenses go into a . . .