(TO THE YOUNG MAN)
Let’s see your teeth . . . Not that you’ll need them for chewing salt horse, but tearing your cartridges. You’ve got all your fingers and toes have you? and no rupture?
(STABBING THE YOUNG MAN WITH A STRAIGHT HAND IN THE GROIN, AND THE YOUNG MAN STARTS TO SURGE AT HIM, THEN RECOVERS WITH THE SAME HALF SMILE AS BAGBY STEPS BACK)
THOMAS
But . . . his eyes there . . .
BAGBY
It’s nothing, it’s something they all get down in the mines. You’ll see some of them with their eyes rolling from side to side like a minstrel show. It’s from lying on their sides and using the pick, in a narrow seam in the dark. Why, sometimes you’ll see them come up from the pits and they’ll bang around out here in the sunlight like we might in the dark, or blind . . .
(TO THE YOUNG MAN)
You watch your eyes when you’re examined, or there won’t be a penny.
(TAKING UP A SACK FROM THE DESK, TURNING TO THOMAS)
And you’ll want to give him something for expenses now and again, tobacco and the like . . . two dollars a week say. If you sign the order, I’ll see to it myself . . .
(HANDS THE SACK TO THE YOUNG MAN)
Here, and you don’t get nothing free, you know. Transportation, clothes, you can pay me and I’ll see you’re outfitted.
(TAKING A PAPER FROM HIS INSIDE POCKET, DROPS A CARD WHICH THOMAS PICKS UP AND LOOKS AT)
Coat, six dollars seventy one cents. Over coat, seven twenty. Hat, two eighteen. Pants, three oh three. Shoes, one ninety six. Drawers, fifty cents. Leather collar, eighteen . . .
THOMAS
(HOLDING UP A CARD, TO BAGBY)
Where did you get this?
BAGBY
(STARTLED, RECOVERS QUICKLY)
Ah . . . that night. You dropped it. I’d meant to give it back, for it’s pretty enough. It looks enough like a hotel. Hand painted? Or is it that farm, with the quaint name, what is it? that plantation . . . ?
THOMAS and BAGBY stare at each other a moment longer as THOMAS pockets the picture and BAGBY turns upstage right to the GUARD.
That’s all now, is it? Unless you’d like to give the boy here your blessing?
As BAGBY speaks THOMAS has approached the YOUNG MAN and they two seize one another in a kind of equal stand-off.
THOMAS
(MUTTERING)
Yes by heaven . . . ! You will!
BAGBY
(AS THEY BREAK APART)
Here!
(TO THE GUARD)
Take him for his examination and then lock him in the courthouse overnight.
(TO THOMAS)
There’s a train for Harrisburg in the morning loaded with bacon and cordwood and two hundred fine recruits, twenty Chippy-wa Indians that’s never seen a suit of clothes and fifty more that can’t speak English, every one of them a substitute. There, for the Union forever . . . !
The YOUNG MAN shakes off the GUARD’s hand and marches off upstage right before him.
A fine thing at the last here, wasn’t it, for him to attack you . . .
THOMAS
No he didn’t . . .
BAGBY
No? And what did he say then, to your blessing?
THOMAS
He said . . . he was made, for something . . . better . . .
BAGBY
Did he now . . . ! And perhaps he shall have it . . .
THOMAS
(STANDING OVER THE DESK, AFTER PAUSE)
He . . . stole my tobacco case.
BAGBY
But what can you expect . . .
THOMAS
(WITH SUDDENLY VICIOUS DEFIANCE)
Are you any better?
BAGBY
(AFTER PAUSE OF SIZING THOMAS UP)
Let me tell you, sir . . . I and this boy here, and you? It’s been you, you the master? And you say war is history, but no. No, the difference between us, you see, is that I, I and that boy there, we can improve ourselves . . . we can while you cannot and that . . . that, I call history.
Scene fades slowly as BAGBY faces THOMAS, upstaging him, to darkness and silence which, after a moment, is broken by the distant sound of cannon.
—It’s charming Oscar, what it’s got to do with the movie I can’t imagine but . . .
—Charming! Is that all you, charming? I’m not asking you to shout bravo Christina but the least you can . . .
—Well of course you are, I mean isn’t that all any writer really wants? everyone jumping up shouting bravo? I thought we’d have chops for dinner, I want to get down before the stores close. Will that suit you Mister Basie? lamb chops?
—Can’t stay, sounds real great but I’m on my way, get on the highway before the rush.
—No but wait! Listen there’s another scene, there’s the whole last act you can’t all go. There’s the whole last act, we haven’t even talked about the . . .
—I heard a phone ring.
—Got enough going to run up your complaint Oscar, any problems I’ll call you.
—Shall I answer it Mister Crease?
—Oh and before you go Mister Basie, one more thing? if we can come back to the real world for a moment? A friend of mine who’s going in for an abortion, the father’s got a court order to stop her and . . .
—That’s not his field Christina! We’re not talking about some indecent . . .
—Oscar don’t be ridiculous, I’m just asking the . . .
—Well he’s, he hasn’t got time to get into all that, you seem to forget who’s paying his bill, he’s . . .
—Mister Crease? You got a collect call from Disney World.
—My God.
—Plenty of copies here now Oscar I’ll just take one along, get things off the ground. Better get that phone.
—That reminds me yes, that two hundred dollars Oscar?
—No but wait, hello? Yes I will. Hello?
—Two twenty one sixty to be exact.
—But what about the funeral, why are you still down there . . .
—Mister Basie? We can go out this way.
—No wait! Wait what do you mean, Disney World was right on the way . . .
—You can get a court order for most anything Mrs Lutz, she goes ahead with this abortion she’ll get a citation for contempt but it’s a real grey area, get these foetal rights going it could turn into anything, turn into a landmark like Roe v. Wade.
—How much? What do you mean you drove all the way down there!
—Thanks Mister Crease we better go, that was fun.
Fun? And they were gone. Clattering up the hall, the glass doors banging, car engines, the blurt of a horn, fun? He got the phone back in its cradle, paused laid back there as though listening to the silence, as though observing that word, literally observing its semblance dissipate and vanish, and then abruptly he got both feet off to the floor and stood, his teeth gritted, holding to the back of the chair before he took a step, and another, and enough of them to get him across the room to the table there and back clutching a sheaf of pages rolled like a stave, like a staff, like a weapon, falling open in his hand as he let himself down, squaring his glasses, muttering it again as though spitting it out, —fun!
Pyrotechnic lights rise over stage with reeling effect and fade gradually as smoke clears to reveal the body of one SOLDIER draped over an inclined cannon barrel and three or four figures flung still at downstage left. Battle sounds drop, lights die, pause of stillness as stars appear and the stage is suffused in violet darkness.
BAGBY appears from stage right, looking vaguely about, shaking his head and pausing, popping a jawbreaker into his mouth philosophically.
BAGBY
There now . . . you wouldn’t think . . .
(AMBLING TOWARD STAGE CENTER, LOOKING ABOUT)
Them that would make such fine sense of things . . .
(KICKING A STONE OVER)
To find meanings in stones . . .
(DIGGING AT THE DIRT WITH HIS TOE)
&nbs
p; And this earth here soaked with the blood of twenty thousand men that will fight no more? In a battle that was no more than that, a battle, where one side lost because it did not win, and the other won only because it did not lose . . .
As he speaks BAGBY is drawn with a sort of dread curiosity toward figures lying still at stage left.
There, it’s ended and left you behind here? with the kisses of death upon you all, why, the way you cling . . . one to another . . .
(GINGERLY ADVANCING A FOOT TO PRY TWO FIGURES APART)
you might have been comrades in arms here, fighting together against . . . haaah!
(DRAWING BACK WITH SHOCK AS THE FIGURE TURNS OVER FACE UP)
Smashed, like a bird with a broken wing, running . . .
(VISIBLY SHAKEN, STARTS TO KNEEL)
Yes . . . your dancing days are done . . .
(PUTS A HAND TO THE BODY BEFORE HIM)
You wasn’t taken a prisoner, there’s that . . . And you’ve still your fine teeth but set in a look . . . of such outrage! what is it! Would you try to hold all this suffering world in the beauty of your own agony? Let me tell you then! It don’t end!
(WITH A BRIEF SHUDDER HE STRAIGHTENS AWAY, HOLDING A CASE LIFTED FROM THE FIGURE)
Yess . . . So he freed you then, did he? Once he’d gave you his blessing? and brought you right up to himself? You was made for something better, was that it? And he freed you to be what you are now? Ahhh! must a man be scourged then, and racked, have his eyes burnt out and then be set up on a pole, to know that he should wish, not to be just . . . but to seem it? Yes, and the unjust man, an’t he above that? Above living for opinion? Him, he don’t wish to seem unjust, no . . . but to be it! Yes, and then he may hold public office because he is thought to be just, he may marry wherever he likes, and be partners with whoever he chooses, and still make a profit . . . ! now and again, for he don’t mind being unjust, only seeming it! There, and won’t he grow rich, then? and be able to help a friend and hurt enemies, and serve gods and men better than any . . . !
(STANDING OFF, EMBRACING IT ALL)
Yes now, this much . . . and no more! Up to this point yes but . . . beyond it . . . ? No! By . . . by heaven . . . ! there are limits!
(WITHDRAWING TOWARD RIGHT, LOOKING OFFSTAGE LEFT)
Because . . . this is how it must be!
A shot is fired, with shout of warning, from offstage left.
A burial detail, is it? And they’d take me for . . . a looter?
(POCKETING THE CASE, PAUSES AT STAGE RIGHT)
Let them look up in the sky then . . . ! if they must be so blind, that cannot see the truth in broad daylight, but must have the whole world in darkness to see the conceit of the stars . . .
Stillness as BAGBY exits hastily, right, a star glitters beyond silhouetted scene, then another, as the curtain falls.
COMPLAINT Filed with US District Court, S.D. New York, September 30, 1990, naming the Parties,
1) Oscar L CREASE, Plaintiff, v.
2) EREBUS ENTERTAINMENT, Inc., Ben B F Leva, Constantine Kiester a/k/a Jonathan Livingston (Siegal) and others, Defendants
Allegations Applicable to All Causes of Action:
3) That on or about July 1, 1977, plaintiff submitted a copy of a script of an original play dealing with certain fictitious characters and events in the American Civil War titled ‘Once at Antietam’ suited to stage production or television adaptation to the defendant Constantine Kiester, who was at that time employed as a television producer in New York under the name Jonathan Livingston, and
4) that shortly thereafter plaintiff’s play was returned to him with a note from the said defendant citing reasons said defendant found the play unsuitable for television production wherewith plaintiff withdrew it from further circulation, and
5) that some thirteen years later the motion picture ‘The Blood in the Red White and Blue’ made and exhibited by and at the behest of the defendants individually and severally and in concert with others and bearing resemblances of such substantial similarity to plaintiff’s play as to have been appropriated directly therefrom in utter disregard of his rights therein
As and For a FIRST CAUSE OF ACTION:
6) Plaintiff repeats, reiterates and realleges all of the allegations of this complaint contained in paragraphs (1-5) inclusive as if fully set forth herein at length,
7) that on or about July 1, 1977, plaintiff submitted a script for an original play titled ‘Once at Antietam’ dealing with certain fictitious characters and events in the American Civil War suited to stage production or television adaptation to the defendant Constantine Kiester at that time employed as a television producer in New York under the name Jonathan Livingston
8) and that shortly thereafter plaintiff’s play was returned to him with a note from the said defendant citing reasons said defendant found the play unsuited to television production wherewith plaintiff withdrew it from further circulation
9) and that some thirteen years later the motion picture ‘The Blood in the Red White and Blue’ made and exhibited by and at the behest of defendants individually and severally and in concert with others bearing resemblances of such substantial similarity to plaintiff’s play as to have been appropriated directly therefrom in utter disregard for his rights therein as a result of which infringement plaintiff has sustained general damages in an amount to be determined.
As and For a SECOND CAUSE OF ACTION:
10) Plaintiff repeats, reiterates and realleges all of the allegations of this complaint contained in paragraphs (1-5) inclusive as if fully set forth herein at length, as a result of which fraudulent conduct on the part of defendants conspiring together and with persons unnamed plaintiff is entitled to special damages in an amount to be determined.
As and For a THIRD CAUSE OF ACTION:
Plaintiff repeats, reiterates and realleges all of the allegations of this complaint contained in paragraphs (1-5) inclusive as if fully set forth herein at length, wherein the fraudulent conduct on the part of defendants individually and severally conspiring together and with persons unnamed was willful, wanton, malicious and in utter disregard of the rights of the plaintiff causing him mental and professional distress entitling him to compensatory and treble or punitive damages in an amount to be determined.
AS and for a FOURTH CAUSE OF ACTION:
Plaintiff repeats, reiterates and realleges all of the allegations of this complaint contained in paragraphs (1-5) inclusive as if fully set forth herein at length whereto, being of unassailable good character and heretofore good health he has been subjected to extreme mental and physical distress as a result of which he is entitled to a constructive trust benefit on all profits and gross revenues from ‘The Blood in the Red White and Blue’ up to and including the effective date of an injunction halting its exhibition unless and until he is credited on a separate card in letters no smaller than those accorded the film’s producer and director and of no shorter duration on the screen with his originative role in its creation, an accounting, interest, costs, and reasonable attorney’s fees.
—Is this all? Where’s the rest of it. Where’s my grandfather.
—Get to those details later Oscar, all we want now’s a complaint they can’t claim is defective on its face when they cite grounds for dismissal and you lose before you begin.
—Well it all just sounds muddy and repetitious. If you can explain it as we go along maybe I can help you cut down some of these tedious lines where you keep repeating yourself and save some money.
—Look, what you’ve got here is this judge sitting there reviewing this complaint and their answer under Rule 12 of the Federal Rules of Civil Procedure looking for grounds for dismissal where they try to claim it’s legally insufficient, like it doesn’t state a cause of action for a claim where relief can be granted, or they say it fails to allege an essential element of the claim or it alleges some element defectively here where there’s these different kinds of damages you’re asking for, see you’re alleging general da
mages, compensatory damages, special damages, punitive damages, you comply with these procedural necessities for each one or you’re out on your ass.
—Oh. All right but listen, that last part there I certainly don’t want to be credited with creating this revolting spectacle, isn’t that one of the things we’re suing them for in the first place? Byron did it didn’t he? Lord Byron, did you know that? A bad poem going around with his name on it and he sued them, took them to court and cut them right down, connecting my name with this mindless trash like Errol Flynn in The Charge of the . . .
—Would have made a great movie now wouldn’t it, Errol Flynn playing Lord Byron don’t worry about it, they’re not just about to put your name up there in lights, see we’re just putting them on notice here under Section 502 where once we start this action we get an injunction pulling it out of the theatres all over the country, impound their prints, masters, negatives any time while the action is pending, you see where they sold thirty one million dollars in tickets over the weekend? over a hundred million now in just the first ten days?
—A hundred million dollars!
ANSWER TO COMPLAINT
Defendant named herein as KIESTER for his answer to Complaint herein alleges as follows:
1) Denies the allegations contained in paragraphs (1-5) according to knowledge and information sufficient to form a belief.
2) Denies the allegations contained in . . .
—Herein, herein, the same repetitious hereins what comes next.
FIRST AFFIRMATIVE DEFENSE
Plaintiff has been guilty of such laches as to bar any recovery herein . . .
—We settled that right at the start didn’t we? that we wouldn’t let them get us on this laches business Harry warned me about when you talked about holding back and letting their profits pile up so we could . . .
—Not quite how I remember it Oscar, but . . .
—Yes well it doesn’t really matter, I’m just trying to keep the record straight but when do we stop wasting time with this name calling and go to court, stop wasting time and money passing papers back and forth and do something.
—Going through the motions, that’s where you get that phrase just going through the motions, next thing they’ll want a bill of particulars to get the facts established and make a motion for summary judgment under Rule 56, trying to keep you out of court Oscar not get you in it.