Frolic of His Own (27 page)

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 you 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?

A Yes, it . . .

Q And that the two might even meet in battle?

A Yes, yes that's . . .

Q In fact there was at least one such documented instance, was there not?

A That's what my . . .

Q Where both were, in fact, slain? In other words, a sort of quirk of history, the kind Shakespeare drew on freely when he needed a plot or a character? He could have pointed to Holinshed and advertised King Lear as based on a true story couldn't he?

A If he, I suppose so, yes.

Q So that in this action you're not claiming
protection for an idea. What you claim has been infringed here then is not the idea which occurred to you over a period of time.

MR. BASIE: You have not been asked a question. That was a statement.

MR. MADHAR PAI: Please do not interrupt the answer.

MR. BASIE: It was not a question.

MR. MADHAR PAI: I believe it was a question. You object as to form?

MR. BASIE: I'm objecting to the form of the question, yes. It was not a question.

MR. MADHAR PAI: You may object if you want to, but please do not interrupt the answer.

MR. BASIE: Would you read it back, please?

MR. MADHAR PAI: I'd like to clear up this point before we break for lunch. Read it back.

(Question read.)

Q Again, you don't claim protection for that idea do you?

A I claim protection for the idea too yes, if the . . .

Q You do?

A . . . if the idea is copied in a vulgar, demeaning way.

Q The way it is expressed, is that what you mean? Can we separate the idea from its expression, sir? Do we understand each other?

A Yes, yes we understand each other. When the idea is used in the context of the expression, combined with the expression, then the idea becomes part of the abuse I'm referring to.

Q You don't claim any proprietary interest in the Civil War, do you?

A No, no, no.

Q In the battle at Antietam, any more than Shakespeare could lay a claim to the siege of Aleppo?

A No.

MR. MADHAR PAI: Let me take a moment to speak to Mr. Smith? Please note for the record that counsel are conferring.

(Counsel confer.)

MR. BASIE: Is it on the record that you took time out?

MR. MADHAR PAI: The difference is that I am not under oath.

MR. BASIE: I didn't say there was a difference. I said is it on the record that you took time out.

MR. MADHAR PAI: Yes.

MR. BASIE: I would like the record to show that there was no pending question.

MR. MADHAR PAI: We will continue the examination when we reconvene at one o'clock.