Frolic of His Own

  —No listen Harry that’s Mudpye getting paid to sit right here for that deposition twisting around everything I said so I’m supposed to be paying him hundreds of thousands of dollars for cutting my own throat while the . . .

  —Not the way it works Oscar, he was probably priced out at around one eighty an hour but they’d be billed by the firm for . . .

  —Yes for destroying everything I, for destroying me!

  —No look Oscar, look, all kinds of legal expenses connected with a venture like this one, contracts, leases, insurance all just the nuts and bolts of the industry, not an art form it’s an industry you see that by now don’t you? and he sat back in the chair at a safe distance —you can see it right there. They can only charge back what they bought and paid for making the picture, but they can’t charge for their work exploiting what they stole and that’s where the court is protecting you but they didn’t steal the battle at Antietam did they? Cast of thousands all those special effects how many millions do you think they . . .

  —But they stole it from me! And Ball’s Bluff, they were both in my play and they . . .

  —Went over this back at the start didn’t we? that you can’t copyright the Civil War? You don’t show the battle at Ball’s Bluff in your play do you? They just talk about it, you don’t show Antietam it happens offstage, you see what I mean? The basic plot, the general skeleton it was already in the public domain wasn’t it? A man hires substitutes on both sides in the Civil War, they’re both killed in the same battle and he goes off the deep end as some sort of moral suicide who . . .

  —Well he, no, no he doesn’t really go off the deep end but . . .

  —But what was the proportion of the gross receipts of the movie that could be credited to your play, that’s what the court is trying to untangle here. Expert testimony from producers and exhibitors ran from five to twelve percent, one of them said nothing at all. A hit play, a best seller that would have been different but your play Oscar, your play just wasn’t in that class was it.

  —Class! How can you, listen. Where do I come out that’s all. Just tell me where I come out.

  —Right there somewhere, look at the last paragraph before the . . .

  —Just tell me!

  —Twenty percent, Oscar. One fifth of the net profits.

  —Twen, twenty percent of . . .

  —Of the net.

  —Of the net.

  —A fifth of the net profits on the picture look, they probably keep two sets of books anyway, one for the SEC and the IRS and the stockholders and the other to suit the fifty page net profit definition in their standard contract so you won’t be taking home millions but the real damn point is, whole God damn point is where we live now, all been trying to tell you that from the start haven’t we? Don’t have to tell you you know it, you know it better than the rest of us, why you’ve fought it so hard while the rest of us just swallow hard and look for another dollar so we can be entertained and take our minds off it, why people go to the movies isn’t it? to see Anga Frika show us her Nordic-Eurasian tits not some moral agonizing over questions that don’t have answers? That’s what this proceeding’s about, what the whole of the law’s all about, questions that do have answers, sift through all the evidence till you come up with the right ones.

  —The right ones! One fifth of the, how can you say the right ones! We won didn’t we? we won the appeal?

  —The right ones within the framework of the law, Oscar. Won the appeal yes, they stole from your work. Question now is how much they stole, and how much they did steal contributed to the picture in relation to their own contribution, just went over that didn’t we? Look. The Blood in the Red White and Blue is a spectacular, a ninety million dollar spectacular, blockbuster whatever you want to call it, the more tawdry vulgar and bloody the better, you just said that yourself didn’t you? why these mobs of people have poured in to see it? what that ad you just showed me, what forty million dollars in advertising promises them? The stars, the track record of the studio, the producer, director who gave them Uruburu with the man’s face smashed with a sledgehammer? the top box office draw of an actor like Bredford and their sensational Anga Frika with tits nobody’s seen before? That’s why she gets a straight contract three million dollar deal while Bredford takes twenty four million off the top and Kiester around six, any movie, could be a movie about the Borgias with her as Lucrezia and Bredford playing Michelangelo, Solomon and the Queen of Sheba, the French revolution and a tale of two titties that’s why the expert witnesses they brought in call them the controlling factors in the movie’s success.

  —No but the, what expert witnesses, where did they . . .

  —Just told you, producers and exhibitors here, here’s the citation Section 70, Title 35, U.S. Code, 35 U.S.C.A. that opinion or expert testimony should be competent upon the issue, apparently without regard to where the burden of proof might for the moment lie, goes on to say the court is justified in basing its decrees on . . .

  —But they’re the ones who said my play contributed only five or ten percent and one of them said nothing at all because it wasn’t a Broadway hit? Producers and exhibitors what do you expect them to say they’re part of the, they’re already on the other side they’re part of the snake pit with the studio and Kiester and . . .

  —That’s why they’re experts Oscar look, problem’s spelled out right here. The plaintiffs, that’s you, plaintiffs called no witnesses to rebut this testimony, and if their failure to do so was because of the commanding position of the defendants in the industry, they did not prove it. We must therefore assume that the testimony represents the best opinion of the calling but look, you’ve still got an advantage under the Copyright Act, gives the court the power to award you damages in lieu of actual damages and profits as they put it. Give you the job of showing actual money damages would be hopeless, ask you to sort out who contributed what you’d be completely at sea and never recover a dime that’s why the burden falls on the infringer and that’s what this is all about, expert witnesses and all the rest of it. Stars, producers, director, supporting players, extras, scenery and locations, set designers, cinematographers, special effects, composer, costumers, it’s a costume drama isn’t it? makeup, hairdressers, point is there’s a pretty fair market value established for all these services and the story is just one more element where development may run through ten writers and twenty versions of the script and the original concept, the story idea is left in the dust. One of their experts here calls it mundane, another one says it’s frail so they try to put a price on it, on your contribution, fair market value for the . . .

  —Like the hairdresser.

  —Like the hairdresser, look. They see a thousand ideas a day, even good ideas don’t always make good movies, they buy one and stake millions on it hoping for some big success and that’s up to the development and execution of the final product, the rest is goods and services.

  —Like the hairdresser.

  —All right look, the . . .

  —Like the no, no it’s outrageous. It’s an outrage Harry, goods and services like your hairdresser when a theatrical, when one of the biggest theatre directors around is interested in it as a play? Sir John Nipples, that puts real value on it doesn’t it? Even Mudpye said that, what a great success it can be on the stage directed by Sir John Nip . . .

  —You told Mudpye that? that he was interested?

  —Well I, more or less yes, just that he wanted to read it and . . .

  —And there goes your claim for damages destroying its other commercial possibilities good God Oscar, you told Mudpye that? Told you he was out for blood didn’t I? and you handed him that on a platter? What else did you tell him, never did file that assault and battery case against him did you?

  —Not yet no, not yet but now I’m . . .

  —Look, not giving you legal advice here just a friendly tip, forget it. Talk about your expert witnesses he’d have the whole AMA in there wearing your guts for garters, all he??
?s assaulting here’s your pocketbook. They offered you a two hundred thousand dollar settlement didn’t they? and you turned it down? That’s the figure they’re using now to base their estimated purchase price on.

  —But it’s not a, there never was a purchase price they stole it, they didn’t even try to purchase it they . . .

  —I know that! and he was on his feet again, rattling the naked ice cubes in his glass —look. I just told you that’s where your advantage under the Copyright Act comes in didn’t I? gives the court power to award you damages in lieu of actual damages and profits? That’s what this one fifth of the net is all about, the court passing up their fair market value claim for services like the hairdresser and trying to give you some room to move in with a percentage of their net profits.

  —When Bredford gets what did you say? twenty five million? and Kiester another six?

  —Off the top Oscar, I said off the top, they have gross participation deals, percentage of the gross cash receipts that come in from the movie theatres, networks, cable, home video, foreign exhibitors, net they figure on an accrual basis after their negative costs and distribution, advertising the rest of . . .

  —Harry?

  —where a little of their creative accounting comes in like their twenty percent royalty to the distributor who’s already their subsidiary and the interest on . . .

  —Harry listen!

  —Fine but, running dry here just give me a minute? and he was gone rattling the ice cubes, safely afloat again when he came back to stand over the gasping figure on the sofa with almost a sigh, —now what.

  —On this decree, right here on the decree it says Bone, Judge Bone he’s the one who granted my appeal isn’t he? giving me all the profits and now he’s turned it upside down with this one fifth of the . . .

  —Put it in the hands of the master to come up with the accounting Oscar, what we’ve just been talking about here, they moved to reduce your award with all these exhibits separating their contribution from yours and Bone’s court reversed the decree that was based on the assumption that, look. You sued for infringement because they stole your play for their movie, that your entire play was your contribution to their gross receipts, but they . . .

  —But they did! It’s right there in that original opinion isn’t it? tracking the play and the movie scene for scene and the . . .

  —They stole your play but they didn’t use all of it, that’s what this business of apportioning these contributions is all about can’t you understand! He drank off half the glass with one hand, waving the other —have to go through it all again? separating the material they pirated from what they mixed with it from the public domain in the whole development process, ten or twenty script rewrites and your last act, they claim they didn’t use anything from your last act at all and there’s a third of your contribution gone right there.

  —Well at least, Father’s seen it and at least he’ll have the chance to finally see the real thing if I can manage it, even if it takes all of this fifth of what’s left of their plunder because that’s the thing, that’s really the important thing.

  —Maybe he will, Oscar . . . and his hand came down gently on the shoulder sagging before him there on the sofa, resting there and suddenly squeezing it tightly before he stood away and finished his drink as the doors clattered open up the hall, —maybe he will.

  —Harry you’re here! Will you come and help Lily with these bundles? and as he came near, prolonging their close embrace —have you talked to him?

  —Just this decision in his lawsuit, I . . .

  —Oh. I thought maybe you’d get it over with while we were gone. Oscar? she broke away, —how do you feel.

  —Didn’t think it was my place to dive right into it without . . .

  —I feel fine Christina. You took my car. Why did you take my car without telling me, without even asking me.

  —My God Oscar, there are worse things believe me. Get him some more tissues will you Lily? and do something about that quilt? He looks like one of those homeless out sleeping on the grates, maybe you can finally shave off that ghastly excuse for a beard now and make a fresh start. Harry hasn’t done much to cheer you up has he, you look like the wrath of God. I got you some ice cream.

  —Harry has not cheered me up Christina. Do you want to hear what he’s told me?

  —No. I mean look at him, he hasn’t got much to cheer about himself, you look exhausted Harry, have Bill Peyton and his gang finally turned loose what’s left of you to live like a human being?

  —Whole case is pretty well cleaned up yes, still some dickering going on between the accountants but my end of it’s finished until the . . .

  —Well thank God, have you had anything to eat? She was half out of her coat and suddenly pulled it on as though a chill had come over her, —Oscar? looking down on him there, —you haven’t eaten have you? pulling her coat off again slowly —I thought, before we talk I thought you might, I thought we all might want something to eat I mean I’m famished, I haven’t had a thing since that tea this morning do you, can I fix you an omelette or, or a . . .

  —Ice cream.

  —But just ice cream? Don’t you want, where are you going? as he stood up unsteadily, dragging the quilt toward the hall, —don’t you want some . . .

  —Ice cream! I’m going to the bathroom and then I’m going in there and lie down.

  —Yes well, Lily can bring it in to you yes, Lily? watching him out of sight —my God, I don’t know how to, it’s going to be so difficult Harry I don’t . . .

  —And you, and you Christina! his arm suddenly round her holding her close —God, it’s not easy for you here, here let me get a tissue just, you’re marvelous it’s just as bad for you.

  —Oh, I’m sorry I didn’t mean to . . .

  —No come in Lily, come in, take him some ice cream in there will you? wiping her eyes, stepping free to blow her nose hard —and then we, and then you can help me fix something to, in the kitchen you can help me in the kitchen and, what time is it. I think I’ll have a drink.

  At the time of his death, Judge Crease had only the night before handed down his last decision in a First Amendment case dealing with the notorious outdoor steel sculpture known as —you’ve read all this, Christina? he said when she reappeared and sat down beside him, her face fallen over the glass she held in both her hands.

  —I don’t know, I read part of it I don’t know what I read.

  —First chance I’ve had to read through it myself, didn’t think I should dive right into it with Oscar before we had a chance to sit down and . . .

  —Well we’re sitting down Harry, I mean he’ll have to hear about it sooner or later won’t he? I wish you’d eat something, and she was as abruptly back up on her feet, —I’m going upstairs and lie down, leaving him sitting there staring at the drink she’d left behind untouched, eat something? but what, struggling to restore a day that was completely losing its shape and even the sun itself, already dislocated by the season, coming and going in the clouds out there losing track of it as he reached for the glass and settled back in the cushions, broke his neck getting out here and everybody simply disappears as he tipped the glass up to his lips simply because it was here in his hand, trapped by the words in the obituary column demanding to be read simply because here they were propped up before him, according to his law clerk who was with him at the time. As highly regarded by his colleagues for his wide grasp and strict application of constitutional law as for the elaborate language with which he framed his judicial decrees, Judge Crease was a jurist in the tradition of Justice Oliver Wendell Holmes Jr, whom he frequently quoted in his legal opinions, and with whom his father had served on the Supreme Court where the two were often in conflict over demands for justice by the elder Crease confronted by Holmes’ dedication to the reason and practicality of the common law in its lack of sentimentality in applying rules of conduct regardless of hardship. Their differences, however, took second place to the bond forged between t
hem by their service in the Civil War, which has recently formed the backdrop for a popular motion picture said to be drawn on the youthful adventures of Justice Crease in that historic conflict. At the time of his death, raising the glass for another deep swallow, silence infringing the shadows around him like the burden placed on the infringer to separate his contribution from the public domain in this enfeebled effort to disentangle the words floating before his eyes from the sensuous warmth lapping at his dwindling concentration At the time of his death . . .

  —He looks real young doesn’t he.

  —What! he started almost upright, splashing the drink on his hand, on the crease in his trousers.

  —Oh I’m sorry! I didn’t know you were sleeping I’m sorry, wait a second, and before he could finish off the drink if simply to get rid of it she was down beside him with a tissue dabbing at the back of his hand. —I know it’s this old picture of him, they probably took it before I was even born, she came on, setting the emptied glass aside to dab at his wrist, the warmth of her knee pressing carelessly against his —I’m always amazed when somebody dies like that how the newspaper can sit down and write this long story with everything about him practically overnight, it would take me a month.

  —Not quite the way it works, he told her, letting the knee he’d sharply withdrawn come back to rest against hers, against the soft length of her thigh against his as he sank back in the cushions clearing his throat, breathing deeply the cool scent of soap mingling with perspiration from the careless buttoning of her blouse, probably wrote this obituary itself before she was born, anyone of any promise or prominence they’re prepared well ahead and kept updated in the morgue he went on, short of breath, that’s what they call it, the morgue where these files are kept for the day death comes along and they can simply write in the lead, after a long illness, in a plane crash, in the warm glow of low lights and lowered voices in the funeral home exchanging condolences and appointments for lunch, for drinks, for some affirmation to deny and obliterate the reality that had brought them together with another at distinct and ultimate odds on a couch somewhere, in a bed, no mystical conjunction of death and eros here as she bent closer over him to go at the spot on his trousers with the damp tissue, his hand brushing her shoulder as though for it to slip lower dislodging a button would be the most natural thing in the world reeling round him baring her breast to his lips in the act of restoring nature’s equation with a new life, simply part of the natural order of things for her hand diligently rubbing away the wet crease there to stray scarcely its own breadth to undo his trousers discovering the pulsing source of her deliverance already obediently evident in its lair to redress the balance of natural law in all its practicality and lack of sentimentality, regardless of hardship.