It was gala night, September 6, at San Francisco's War Memorial Opera House. The theme was sort of Trump Tower meets 19th-century French brothel: reams of teal silk, Renaissance knockoffs and gilt-edged mirrors, chairs, and couches. The men wore tuxes and noshed on heirloom tomatoes, duck prosciutto, and portabellini. The ladies, strapped in satin and bedizened with Harry Winston, watched their weight as they wobbled about on Ferragamo heels. But for all the tony atmospherics, the evening's most memorable event wouldn't happen until months later, when the San Francisco Opera finally threw down its proverbial cummerbund and stepped into court with an East Coast rival.
On that innocent evening, the San Francisco Opera opened its 2003 season with the company debut of The Mother of Us All, a sluggish opera with music by Virgil Thomson and libretto by Oakland's own Gertrude Stein. The rarely performed opera told of the life, work, and politics of early American suffragist Susan B. Anthony. Some opera buffs believe there is a good reason the opera isn't staged very often -- and for all the grilled halibut and Veuve Clicquot, San Francisco's mounting of the turgid tale apparently was no exception. "An exercise in pure tedium" was how San Francisco Chronicle music critic Joshua Kosman described the two-hour-and-fifteen-minute romp through American history. "Not even the most cunning musical and theatrical interpreters, it seems, can save this piece from its vein of cutesy triviality, its air of warmed-over nostalgia or its determined poverty of imagination."
But if Kosman was unmoved by the work, the folks at San Francisco's longtime competitor, New York City Opera, suspected something far less boring and far more boorish. And even though Contra Costa Times correspondent Georgia Rowe would enthuse that the "sets by Allen Moyer, costumes by Gabriel Berry ... create indelible visual images in every scene," lawyers for the New York company suspected that they'd seen those same indelible images at least once before -- during their own staging of the opera in March 2000.
Both Moyer and Berry had worked on the New York City Opera's production of The Mother of Us All, as well as an earlier 1998 version of the show for another New York-based company, Glimmerglass Opera. Although the New York City Opera claimed that its contracts with Moyer and Berry allowed it to retain all original drawings and models, the documents also stipulated that the two could use them "only for exhibition or sale as works of art, but not for use in another production. "
Attorneys for the New York City Opera demanded to see San Francisco's set and costume designs. In the first of several strongly worded letters, New York City Opera Attorney Julie Samuels instructed the San Francisco company to send its East Coast rival the designs, "so that we may determine what, if any, similarity your production has with ours."
San Francisco Opera wouldn't budge. Its own attorney, Katharine Livingston, argued that the designs belonged contractually to the designers. If New York City Opera had a beef with anyone, she reasoned, it was surely with Moyer and Berry. "We do not believe that San Francisco Opera has the right to provide these proprietary materials to a third party such as the New York City Opera," Livingston wrote to the New York company. "Accordingly, I suggest that you contact the designers themselves with your request for the materials."
That wasn't good enough for the New York divas. Turning up the rhetorical heat, Samuels wrote back: "The San Francisco Opera violated our copyright when it re-created without our permission our production of The Mother of Us All on its stage. ... In addition, it is clear that the San Francisco Opera has benefited from the costs and expense that we incurred in executing the designs for our production, including our payments to the designers and expense of mounting the production."
It was certainly no secret that San Francisco's production of The Mother of Us All had borrowed heavily from the earlier New York City versions. The SF company's Web site openly confessed its debt, noting that its show was "based on [an] original production for Glimmerglass Opera and New York City Opera." Director Christopher Alden, who is beginning to make a cottage industry out of mounting the production, had overseen both of those earlier productions. And in addition to set designer Moyer and costume designer Berry, San Francisco Opera also cherry-picked lighting designer Mark McCollough from the earlier New York productions. In fact, according to Samuels, the San Francisco Opera had even toyed with the idea of renting the costumes and set directly from the New York City Opera before hiring Moyer and Berry.
Opera companies frequently mount joint productions, sharing things like set and costume designs. Of course, those relationships are usually contractually determined. "I've never heard of anything like this before," said L. Paul Driscoll, editor-in-chief of Opera News magazine. Still, he concedes, "it's sort of difficult in opera to have an original production. There are similarities in productions all over the world, either by mistake or design. ... The issue of intellectual property is very difficult to prove."
Which is possibly why San Francisco's Livingston was so quick to argue that the New York City Opera's claims of copyright infringement were slim. "You did not specify what aspect of The Mother of Us All production is copyrighted by the New York City Opera," the attorney wrote in a letter dated October 8. "As far as we know, the copyrights in both the scenery and costumes for your productions belong to the designers themselves. Since copyright exists only in materials fixed in a tangible medium, it is difficult to understand in what other aspect of your production could be subject to such a claim."
Then, in a sort of premature lawyerly coup de grâce, Livingston later wrote: "I trust that on the basis of this information and in the absence of any legal support for your demands we can now consider this matter closed."
Far from it. Not only did Samuels respond with a detailed copy of Berry's contract for the New York production, but she then signed off on her letter, writing: "We shall have no choice but to pursue action against Gabriel Berry and the San Francisco Opera for the intentional interference of the New York City Opera's intellectual property."
Not to be outdone, Livingston marched into court first, scoring home-field advantage on November 25 by filing a pre-emptive lawsuit in federal court in Oakland against the New York City Opera. That suit seeks to make the case that San Francisco Opera did not infringe any of New York City Opera's copyrights, contracts, or intellectual property rights.
But apparently this move was beyond the pale for New York, whose representatives were shocked (shocked!) at the prospect of being dragged into court. "As far as we were concerned, this was an exchange of letters between colleagues," said Susan Woelzl, New York City Opera's spokeswoman.
Both opera houses have since gone on PR lockdown and are declining to answer additional questions about the tiff. San Francisco Opera spokesman Robert Cable says only that his company "did not violate any copyrights or interfere with any other rights of the New York City Opera." The New York City Opera is being similarly tight-lipped. "It was San Francisco who took it into the courts," Woelzl said. "Since it's now in the courts, our hands are tied. We cannot have any other comment than that."
Nonetheless, both parties have until March 5 to discuss a settlement. And while the opera's San Francisco debut may have been, to the Chronicle's Kosman, a "star-spangled snoozefest," its courtroom coda promises all the drama and deceit lacking in the production.
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