MR. MADHAR PAI: It’s a new question, Mr. Basie.
MR. BASIE: That was the other question. I said I object to this one too.
MR. MADHAR PAI: You are still having trouble with the word amateur.
MR. BASIE: I want to have it clearly defined. Without all the baggage.
MR. MADHAR PAI: In the sense of a dilettante, is that what you object to? Superficial, elitist . . .
MR. BASIE: Where it’s not done just for payment.
MR. MADHAR PAI: Fine. We can proceed.
Q Since you do not derive your income from playwriting, would it be fair to describe you as an amateur playwright?
A If that is your characterization, I . . .
Q I want to clarify something with respect to . . .
MR. BASIE: I have to object. To question the witness and not allow him to respond, to finish his answer, that’s entirely unprofessional.
MR. MADHAR PAI: I withdraw it. Since his answer was not responsive I’m just trying to move things along here and . . .
MR. BASIE: I want the record to show my objection to this flagrant abuse of the witness.
MR. MADHAR PAI: I withdrew it, Mr. Basie. Now in the interests of moving this along without unduly . . .
MR. BASIE: You withdrew it by calling his answer unresponsive when you hadn’t allowed him to finish it, how do you know whether it would have been responsive or not.
MR. MADHAR PAI: Maybe we should adjourn this and do it elsewhere.
MR. BASIE: Why.
MR. MADHAR PAI: Because that way we could proceed without these constant interruptions, or at least under the supervision of a Federal magistrate. There’s a contentious element creeping in here that I don’t want to interrupt the sworn testimony of the plaintiff.
MR. BASIE: I think the record will be perfectly clear where the plaintiff’s sworn testimony is being interrupted in an entirely unprofessional manner that I’m entitled to object to and I do object.
MR. MADHAR PAI: All right.
MR. BASIE: I don’t mind if you ask questions on this subject matter. I am merely . . .
MR. MADHAR PAI: I am gratified.
MR. BASIE: I am merely asking that you make these questions in the proper form.
MR. MADHAR PAI: Fine. We can proceed.
(Document marked Defendants’ Exhibit 1 for identification as of this date.)
Q The play on which plaintiff brings this action for infringement is titled Once at Antietam. Is this your own title, or is it meant to somehow conjure up something?
MR. BASIE: The witness does not need to answer that or even comment since the title’s not protected by copyright in any case.
MR. MADHAR PAI: Are you objecting?
MR. BASIE: I want the record to show I am objecting on a matter of substantive law here.
MR. MADHAR PAI: I am not questioning the copyright one way or the other. I think the question will stand. Read it back.
(Record read.)
A In a way possibly, yes. It echoes a line in Othello.
Q For the record, you are referring to the play Othello by William Shakespeare?
A The Tragedy of Othello, the Moor of Venice, by William Shakespeare, yes.
Q Will you identify the line?
A In his death scene at the end, yes. ‘And say besides, that in Aleppo once, where a malignant and a turban’d Turk Beat a Venetian and traduc’d the state, I took by the throat the circumcised dog, and smote him thus.’ And he stabs himself.
Q And the title Once at Antietam is intended to evoke reverberations of that dramatic moment at Aleppo seized upon by Shakespeare in his memorable poetic rendition?
A Well it, yes.
Q To evoke these reverberations in a wide audience, would you say? Or a potentially wide audience?
A To anyone who’s read Shakespeare.
Q Would you characterize that as a general audience? Or a rather narrow one?
A As the theatre going audience.
Q As a relatively narrow audience then, a traditionally elite audience? In other words you wouldn’t have expected a mass audience to make this Shakespeare connection?
A Well, you made it didn’t you?
Q I ask the questions. I am asking the questions and I want to move this along. As an amateur playwright, is that a fair assumption?
MR. BASIE: Excuse me, but I can’t let the witness answer that. We’re not making assumptions here.
MR. MADHAR PAI: Are you making an objection?
MR. BASIE: I am entitled to object to the form of questions, as you know, and I object as to form, yes. To any question based on an assumption, whatever it is that’s being assumed.
MR. MADHAR PAI: I am assuming that one would not expect a mass audience to make an esoteric connection with a phrase from Shakespeare.
MR. BASIE: That’s not the question that was asked.
MR. MADHAR PAI: My patience is wearing quite thin, Mr. Basie. I did not state that that was the question, I was repeating the assumption that formed the basis for your objection.
MR. BASIE: My objection is based on your assumption characterizing the witness as an amateur. It’s disparaging and I direct him not to answer.
MR. MADHAR PAI: I thought we had cleared that up. Read it back, please.
(Record read.)
Q If we’ve defined services that are done for pay as those of a professional, can we distinguish those done without pay as the efforts of the amateur?
A Broadly speaking, but . . .
MR. MADHAR PAI: You have an objection, Mr. Basie?
MR. BASIE: The form is improper, the form of the question employing the phrase ‘the efforts of the amateur,’ the word ‘efforts.’ It’s disparaging.
MR. MADHAR PAI: It’s a perfectly good English word.
MR. BASIE: In this context, the way it’s used here it implies failure, just reeks of it. You’ve got your professional there being paid for these services where the amateur’s efforts aren’t making him a dime. It’s pejorative on two counts.
MR. MADHAR PAI: You seem bent on turning this procedure into some sort of Chinese water torture. Can we move on?
MR. BASIE: I thought we’d cleared all this up. This word amateur starts out to mean doing something for the love of it, that’s the root, doing it for its own sake without a price on it. Now these days where there’s a price on everything, what’s not worth getting paid for’s not worth doing. You say something’s amateurish means it’s a real halfassed job. You want the best you hire a professional. A real pro, as they say.
MR. MADHAR PAI: So that accusing someone of unprofessional conduct is pretty damning.
MR. BASIE: Where you have money setting the standard for performance it’s the worst.
MR. MADHAR PAI: Thank you.
MR. BASIE: See here’s where you run into trouble with the arts. You want an example?
MR. MADHAR PAI: No.
MR. BASIE: You take van Gogh, the painter Vincent van Gogh? A painting of his brought over fifty million dollars a few years ago but in his whole lifetime he only sold one picture, that make him an amateur? Some hobby he had, turning out these halfassed pictures on Sunday afternoons? You get into this you’re getting into apples and oranges.
MR. MADHAR PAI: Mr. Basie please! Are you objecting? Is it as to form? If you are will you state your objection for the record, if you can remember it? I’m sure none of us else can. You expressed the wish when we commenced of conducting this examination as expeditiously as possible and I am doing my best to accommodate you for all our sakes but you are wearing my patience extremely thin confusing the issue with your remarks about apples and oranges which I think you’ll find, incidentally, to have been featured in the still lifes painted by Cézanne, not van Gogh, who favored sunflowers. Now if we may be allowed to move along, I wish to direct the witness’s attention to plaintiff’s Exhibit Number 11.
(Document marked Defendants’ Exhibit 11 for identification as of this date.)
Q Your attention is directed to Defendants’ Exhibit 11. Will yo
u read it, please.
A Yes. I, Oscar L . . .
Q To yourself.
A I’ve read it.
Q And you can identify it for the record of your own knowledge and belief as your sworn affidavit describing a letter of rejection addressed to you and purportedly written and signed by the defendant named therein as Jonathan Livingston, whose professional interest you had solicited on behalf of and as sole author and proprietor of a play titled Once at Antietam, these events taking place on or around the dates indicated therein?
A Yes.
Q Dates which occurred quite a long time ago?
A Depending on how, on what you call a long time ago.
Q I would call a decade, well over a decade in fact, long enough for routine incidents of no particular interest when they took place to have fallen through the cracks of memory, as it were? Now would it be fair to say, sir, that a man beginning such a career working as both producer and director of a highly successful dramatic television series might, in the routine course of a busy day, be expected to receive numerous unsolicited proposals in the form of concepts, treatments, or scripts from aspiring playwrights in the high hopes that under his artistic and professional supervision their ambitions for their works will be realized and suitably rewarded?
A Yes.
Q Rewarded financially?
A Yes.
Q That in fact this hunger for financial reward might in many cases be the driving force behind the creation of the work in the first place?
A In too many cases, yes.
Q But not your own?
A As the driving force behind its creation no, no that’s not why I wrote it.
Q But as the driving force behind its submission.
MR. BASIE: Again, you’ve made a statement. That was not a question.
MR. MADHAR PAI: Please don’t interrupt the answer.
MR. BASIE: I object to the form of the question.
MR. MADHAR PAI: Mr. Basie, that is grotesquely improper. I am not a man of temper but that is just plain unprofessional. I wish you wouldn’t do it.
MR. BASIE: I am entitled to object to the form of the question.
MR. MADHAR PAI: You may object if you will, but don’t interrupt the answer. I am trying to go ahead smoothly here so that we may get to the heart of the matter before we break.
MR. BASIE: Break?
THE WITNESS: Break, on thy cold grey stones, O . . .
MR. MADHAR PAI: May I ask you to restrain the witness, Harold?
MR. BASIE: I don’t understand your request.
MR. MADHAR PAI: I think it is obvious that he is not responding to the question. Would you read the question back.
Q Mr. Crease, if you understand it when it is read back, I would like your answer. If you feel that you cannot answer will you simply say, I cannot answer. I’d like to move this along before we break for lunch.
A I cannot answer.
Q Thank you. We were speaking of the public taste. Now in the case of television, of the television audience, this would embrace a very wide public would it not?
A Yes it would, yes.
Q One whose level of refinement, sensitivity, intelligence, attention span has often been described in terms of the lowest common denominator?
A The great unwashed, yes. Sweep on, you fat and greasy citizens!
MR. MADHAR PAI: Mr. Basie, you have no objection to that response remaining in the record?
MR. BASIE: No objection.
MR. MADHAR PAI: And the witness of course is aware that he is under oath.
Q And it was, in effect, according to your sworn complaint, to this forum that you submitted your work titled Once at Antietam?
A Yes.
Q Had you or have you since made numerous other such submissions of your work, other plays for example?
A No.
Q Have you sold any such work or works in this market?
A None, no.
Q And because of the money involved, may we infer that it is a highly competitive environment?
A I would think so, yes.
Q Still you had what we might call the audacity to try to enter this unsavoury environment with one lone, pristine product of your own unique vision, like the painting which brought fifty million dollars by the artist who was unable to sell his work during his lifetime.
A For the irises, yes.
Q For what?
A Fifty three point nine million, it was a painting of irises.
Q May I direct you to answer the question.
MR. BASIE: I have to direct him not to answer.
MR. MADHAR PAI: Are you objecting, Mr. Basie?
MR. BASIE: It was not a question. It was a statement. He was simply trying to set the record straight.
MR. MADHAR PAI: He is not here to set the record straight. He is here to be examined.
MR. BASIE: He is under oath.
MR. MADHAR PAI: That is the nature of this proceeding, and it does not oblige him to talk about irises. Will you read it back, please.
(Record is read.)
Q Will you tell me if you agree.
A It seems a little far fetched, but . . .
Q Will you answer my question?
A Yes.
Q Fine. Now let’s go ahead if there’s no objection.
MR. BASIE: I want something clarified here.
MR. MADHAR PAI: What is it now, Harold. Are you objecting?
MR. BASIE: The witness was asked whether he would answer the question. His answer was yes. I want it to be clear whether he meant yes, he would answer the question but had not yet done so, or whether counsel is abusing his privilege in assuming that the witness’s response expressed his agreement with counsel’s statement.
MR. MADHAR PAI: Read it back.
(Record read.)
Q Would you agree to that? You may answer simply yes or no.
A Well I, for the sake of the argument, yes.
Q Good. I believe we’re making some headway. Now since you appear to like to associate yourself with Shakespeare, might not this dramatic work of yours in its lonely search for an audience have perhaps been better suited to the mercies of the rather more narrow, elitist theatre going public which we agreed his plays call forth?
A No.
Q Do you understand the question?
A We did not agree on this narrow, elitist notion. He was a very popular playwright.
Q I take it you mean in his own time?
A That’s when he wrote his plays, isn’t it? For the whole general public, he played to the stalls and to the pits.
Q He made his living at it then, didn’t he?
A Well he owned shares in his acting company too so he got a percentage of the profits and he was in real estate too, I think he even lent out money at exorbitant rates if you just read the Merchant of . . .
Q But we could certainly call him a professional playwright, couldn’t we?
A Of course. He acted in some of them too.
Q Yes. And when you say the pits, you are characterizing this television fare that’s addressed to the lowest common denominator, what’s envisioned when we say, it’s the pits? The great unwashed, in your own pungent phrase?
A The pit was the cheap section of the theatre behind the stalls at the front of the orchestra, yes. Yes it probably got pretty rank on a warm evening with the orange peels thrown in.
Q I’m sure. Now this broad audience, they were all fairly familiar with the material of the plays, the plots and stories, were they not?
A Yes, generally speaking.
Q How so? Can you be more specific?
A Well, Shakespeare took his material from familiar sources, contemporary fictions like the romance Rosalynde where he got As You Like It, All’s Well That Ends Well from Boccaccio’s Decameron, things like that.
Q All right. And the later historical plays, he raided Holinshed’s Chronicles of England, Scotland and Ireland pretty freely didn’t he, for Richard III and the Scottish history in Macbeth, even for
King Lear? And Plutarch, he lifted Antony and Cleopatra and Julius Caesar right out of Plutarch didn’t he?
A I wouldn’t say lifted, he . . .
Q Took? That he simply took them? And no one took exception to this practice that you know of, did they?
A Not that I, no.
Q In other words, these ideas, characters, twice told tales, odd quirks of history, it was all just there for the taking, wasn’t it?
A All right.
Q Whether you were Shakespeare or Joe Blow, you could turn any of it into a play if you wanted to, couldn’t you?
A Well not the, if Joe Blow could write a play?
Q Do you mean it would depend on the execution of the idea?
A Well, yes. Yes of course.
Q Not the idea, but the way it was expressed by the playwright? Isn’t that what makes Shakespeare’s King Lear tower above Joe Blow’s King Lear?
A Obviously.
Q They are separate things, then?
A What, Joe Blow’s King . . .
Q I mean the idea and the expression of the idea, they are separate things aren’t they?
A Well, in the sense that . . .
Q I think we’ve been over the ground. Will you please simply answer the question? Read it back please.
(Question is read.)
A Yes.
Q Now may I ask you, as a lecturer in American history with particular expertise in the Civil War, would you say that during that conflict the hiring of a substitute to go up and fight in one’s place constituted anything extraordinary?
A Well of course, in the South of course a planter who owned more than forty slaves was automatically exemp . . .
Q Mr. Crease, we are not here today to discuss that peculiar institution. My question was a simple one and I would like you to answer it. Read it back please.
(Record read.)
A No.
Q It was, in fact, a not uncommon practice on both sides of the conflict for those who could afford it, was it not?
A It, yes.
Q There was no real opprobrium attached, was there?
A Not, no but . . .
Q And the idea, the idea that a man of split allegiances might find himself in a situation obliging him to send up a substitute in his place in each of the opposing armies, while it was hardly an everyday occurrence, was certainly within the realm of possibility wasn’t it?