Enter Lawyer #2
I get new legal counsel, who hits the ground running as my former law firm goes on the attack to seize ownership of my work.
Wednesday, October 19, 2016
From: Jeff Whitty
To: Leslie Ben-Zvi
I write you with the generous recommendation of [name redacted]. I attach him on this email.
My name is Jeff Whitty and I am a writer. I am best known as the bookwriter of "Avenue Q."
I would like to engage your services. I will keep this as brief as possible. There is much to the story I will leave out for time is of the essence. I will answer any questions you have freely and honestly.
In short, I authored a musical that I quit in June (by phone to its producers). It is called "Head Over Heels." It is a jukebox musical of the Go-Go's catalog. No contracts have been signed securing my exit.
Right now there is an Equity 29-Hour Reading happening in New York of the show which bears my name as author.
In truth I am the workhorse generator of a work that was stolen from me when my ex-agent John Buzzetti gave director Michael Mayer full creative control on the project. Mayer fired my music supervusor Carmel Dean and yanked her arrangements from the show thereby destroying my excruciatingly meticulous script. (The show is set in Elizabethan times and is entirely in iambic pentameter.)
I want to send them a legal notice that they cannot use my name or even suggest that I am author of a work from which I had my control swindled. (More on that later.)
I will forward the contract after this email.
I believe that any textual changes are still subject to my approval.
I fall short of "cease and desist" for I believe in playing the long game. It is to my advantage that the show as butchered by Mr. Mayer be laid out. I prefer to let the ersatz version fail on its own terms so I cannot be blamed for the show's commercial life being killed (for now).
I am a convenient dumping ground for their malfeasance.
And this kind of behavior always gets its just desserts. I know this. I'd rather let them embarrass themselves than allow them to say I spoiled their fun. You are free to tell anyone that this is my tactic.
I stop short at allowing my name to be affixed to shoddy work.
My lack of cooperation will kill the show in the short term. I'll simply escalate if they do not back down. I have confidence that Friday will speak for itself. I play the long game for my financial security and to preserve my artistic integrity. …
Please call me when you can at [phone number redacted].
If necessary I'll fly to New York and storm in with an air horn but I'd prefer to deal with this from Los Angeles.
Thank you Leslie --
I thus engaged Leslie Ben-Zvi as my attorney at $500/hr. He had a lot of catching up to do - and fast, because my former law firm immediately moved to seize my valuable property.
It is clear now that Ben-Zvi had a clear path to dismantle the attacks by Levine, Plotkin and Menin – by prosecuting the clear conflicts within the firm, putting me in the power seat. I should have sued Levine, Plotkin and Menin. But I didn’t know my rights nor my options.
Leslie put up a spirited defense in his opening salvos in the following months:
Leslie H. Ben-Zvi
Attorney At Law
November 1, 2016
To: Susan Mindell, Esq.
Re: “Head Over Heels”
Jeff Whitty / Donovan Leitch & Rick Ferrari / Gwyneth Paltrow
As we have already discussed on the phone, I have been retained by Jeff Whitty regarding the above-referenced matter.
I am advised that your clients, Donovan Leitch, Rick Ferrari and Gwyneth Paltrow, the named Producers in the April 15, 2013 Deal Memo with my client, are in breach of said agreement for reasons that include, but are not limited to, (i) their failure to acquire my client’s approval regarding the Book and the intended disposition of the Merged Musical, and (ii) their actual and/or intended introduction of a co-Author into the production of Head Over Heels.
Jeff Whitty is the sole owner of the copyrighted dramatic work entitled Head Over Heels and he expressly does not consent to the use of his work (or any variations or adaptations thereof) by your clients or by any third parties unless it is with his written permission or in strict compliance with the aforesaid Deal Memo.
In the interest of addressing and hopefully resolving the issues I have raised, I ask the following of you and your clients:
1. Cease any and all uses of Jeff Whitty’s Book (and any variations or adaptations thereof) until such time as we have reviewed copies of those versions or adaptations of his Book that were used in the recent New York and Poughkeepsie readings of Head Over Heels. Accordingly, I ask that you forward them to me.
2. Cease any and all statements or representations that Jeff Whitty’s Book (and any variations or adaptations thereof) are part of your clients’ proposed production of Head Over Heels.
3. Indicate whether your clients have or intend to assign, transfer or convey any of their rights under the Deal Memo. If yes, please provide us with copies of said instrument(s).
4. Indicate what, if any, interest New York Stage And Film Company may have in Head Over Heels.
We appreciate your continued cooperation and look forward to resolving the above issues in an amicable fashion.
Very truly yours,
I will annotate within Mindell’s subsequent reply:
November 4, 2016
TO: Leslie Ben-Zvi
FROM: Susan Mindell, LPMNY
Re: Head Over Heels, the Go-Go's Musical Jeff Whitty
FOR SETTLEMENT PURPOSES ONLY
We are writing to respond to your letter dated November 3, 2016 regarding Head Over Heels, the Go-Go's Musical (the "Play").
Without going into a full history of all of the relevant facts, we disagree that Producers breached the Deal Memo; in fact, from their perspective, Jeff is in breach. Be that as it may, and since your letter indicated a willingness to resolve the matter amicably, Producers would like this letter to focus on accomplishing that. A bit of additional background may help contextualize how we got here: following the initial three-hour production of the Play at Oregon Shakespeare Festival ("OSF") the Play needed a new director and it needed to be shorter to have a chance to succeed on Broadway.
Yes, I couldn’t agree more, and never offered any resistance. Mindell’s inexperience is evident here in her assumption that I – or anyone else - considered the first production as the final product. That’s insanity to anyone who understands the development process. Pilot productions are a necessary step in the process, allowing the artists to see how the show plays. As I said ad nauseum, I never intended the final product to be three hours long – and my revised version, well underway at this point, had an ideal running time of 2:35. ‘
Tony winning Broadway director, Michael Mayer, expressed interest (which Jeff  was excited about) and would not agree to join the artistic team unless revisions were made. The Producers partnered with NYSF to do this work in a work session with Mr. Mayer (scheduled with Jeff's knowledge, consent and planned participation) over a one-week period in June/July 2016. Unfortunately, Jeff didn't collaborate, or come to New York (even though plane tickets had been purchased with his consent); and, as he was reluctant to change the OSF version in the manner suggested by Mr. Mayer, and as the director insisted it needed to be changed, the Producers were ultimately forced to consider additional editing of the script. Adding personnel to contribute to and change playscripts on Broadway is not at all uncommon.
An absurd statement considering the hundreds of changes that I planned for the next development steps - until Mayer made the original work insensible by pulling the arrangements in order to benefit his agency buddy.
In this instance, Producers absolutely reached out to Jeff to deal with these changes before, during and immediately following the NYSF work session.
I’m not sure if Mindell is lying intentionally or repeating lies that she was told. I never had any such discussion with the producers nor anyone else, because they refused to engage. I offered many times to take them through the script to discuss the decimation of work that played well before the crowd. They never took me up on it, likely because it involved actual work instead of repeating the orders of my agent and lawyer. No one reached out to me during the Vassar/NYSF workshop and I did not get word on it until well afterwards.
They never intended to not obtain Jeff's written permission and began negotiations with Jeff's former agents, William Morris, over the summer to accomplish this. At the same time, proceeding with the Reading (with respect to which no admission was charged) just a few months after NYSF was due to Mr. Mayer's schedule.
“They never intended to not obtain Jeff’s written permission,” eh? Why can’t she say, “They intended to obtain Jeff’s written permission?” The answer is that the producers had no such intention.
The matter here is not whether the producers charged admission – the matter is that they deceptively portrayed this as a “work session” with no outsiders invited when it was a commercial enterprise instead.
Jeff was aware of the Reading, and asked Producers to remove his name, which they did.
I also asked my lawyer Conrad Rippy AT HER FIRM to deliver a “cease and desist” and he fired me instead. It’s stunning that Mindell never addresses the fact that I was until very recently represented by her law firm and she has my confidential information as a result.
Promptly following the Reading, Producers reached out to Jeff again to ask for the contact information for his new representative, and we called you promptly to pick up negotiations to find an amicable solution which would allow the show to progress in a way that preserves Jeff’s remuneration. We are prepared to continue on that path.
Responding to your specific requests, we don't think it is necessary that Jeff review copies of the versions since Producers are not planning to diminish Jeffs compensation (other than perhaps with respect to subsidiary rights).
On any other show, I would hold creative control – not lawyers, agents and first-time producers with no experience developing a work of commercial art in the most difficult of storytelling mediums. I’m not being possessive – I’m being a businessman. It’s sickening to observe LPMNY’s lawyers playing artist and producer, making their clients’ decisions, enjoying the control while doing none of the work and taking none of the risks.
Producers did not use Jeffs name in connection with the Reading and haven't since then, and they are prepared to continue to not do so. William Morris had indicated that taking Jeffs name off the project might be important to Jeff and Producers will consider that as part of the settlement, if that is still Jeffs wish. Other than the Producers solely owned LLCs (i.e., personal to them) they have not transferred their interests to the show although they have added and are considering adding partners. Regarding NYSF's future participation, we don't see how it is relevant to Jeff although NYSF will have the right to be credited and share financially in productions under Producer's license and control, which is not unusual (OSF too would participate in the future of the show).
One would never guess from this letter that I was a client of Mindell’s law firm a month prior. Later, when my LPMNY successfully drove me to financial ruin from unnecessary legal expenses, they would force me to put my name on their botched enterprise. I had no choice: do what my former law firm ordered, or go homeless.
The Producers have been in regular touch with the Go-Go's since the inception of this project and continue to be. Producers have the Go-Go's full support of the most current version of the Play to be directed by Mr. Mayer.
This is because the Go-Go’s were fed a steady diet of opportunistic lies from their law firm. Which was also my law firm. Which was also the producers’ law firm. Lordy. What a mess LPMNY made. Yet they kept doubling down, greasing the rails for a $15 million flop.
When I first spoke to you on October 26, 2016 I indicated my clients would like to settle this matter with Jeff. That continues to be the case. If Jeff is amenable we would like to send proposed settlement terms to you promptly so you can review them with Jeff. Please let us know his decision. We appreciate your willingness to resolve the matter and look forward to hearing from you.
I was really proud of Leslie’s terrier-like aggressiveness with Mindell, as with his subsequent reply, spitting hard facts and knocking away her deceptions:
November 7, 2016FROM: Leslie Ben-Zvi
TO: Susan Mindell
Re: “Head Over Heels”
Jeff Whitty / Donovan Leitch & Rick Ferrari / Gwyneth Paltrow
Thank you for your prompt response and your stated intention to resolve this matter amicably. While I dispute your recitation of the history of this matter, I leave most of that discussion for another time. I do point out, however, that my client agrees that cuts have been necessary and that he did in fact cut twenty minutes from the show in two working previews. He also agrees that revisions are part of the organic process of bringing any show to Broadway and that he is amenable to a true collaboration with Michael Mayer, whose work he has admired.
Before we take any steps toward a resolution, we must see copies of those versions or adaptations of Mr. Whitty’s Book that were used in the recent New York and Poughkeepsie readings of Head Over Heels plus any other versions/adaptations that the Producers are considering.
Pursuant to the express terms of the Deal Memo, my client cannot be expected to give his approval if your clients decline to seek it. Indeed, he was (properly) invited by your clients to said performances and readings and has an ongoing contractual right to read and approve any such scripts. Your statement that Mr. Whitty’s compensation will be ‘undiminished’ is a given since your clients have no right to pay him anything less than what he is owed. This is particularly true since he has contractual rights and statutory copyright claims that give him control over the disposition of his intellectual property. It would be a prima facie breach of the Deal Memo for your clients to refuse him those copies and a prima facie violation of his copyright for your clients to use his material without his approval. Accordingly, I look forward to receiving copies of the scripts and to forwarding them to my client.
Again, please be advised that Jeff Whitty expressly reserves and does not waive any of his rights and remedies at law and equity, or under the terms of the aforementioned Deal Memo.
Very truly yours,
At last a hard copy of the script for the second workshop arrived. I dug in – and could not believe the careless, lazy patch-job Mayer and his cronies made from the careful, audience-attentive architecture of three years’ labor. In my absence and without my consent, Mayer engaged a writer named James MacGruder to take over the book. MacGruder’s last theater credit was the book for Mayer’s flop musical The Triumph of Love in 1994.
The most baffling change was Mayer’s deletion of the audience’s favorite character in the pilot production: Philanax, the King’s Fool, who served as the audience’s guide and companion throughout the show. One needs but watch the videos to hear the warm, riotous audience response that he received. Cutting Philanax would be akin to cutting the emcee from Cabaret – the story isn’t much affected, but what is left?
In my production, I pulled off the feat of making nearly every lyric – probably 98 percent - fit the story perfectly with very few changes. This is what put Head Over Heels in a new realm of the jukebox form. Reminder: the music was not written to tell story. Making the music fit seamlessly was an insane puzzle that took years, and were I allowed to complete my work (as was my right), every single lyric would fit by Broadway. In Mayer and MacGruder’s hands, pages of lyrics no longer fit the context. I never used “It’s a jukebox musical!” as my excuse to pass off shoddy storytelling.
Here is an example of how well Leslie and I were working during this period, as we collaborate in our responses to LPMNY’s barrage:
I have good news included below. The letter is an awesome bomb drop as-is, I just had some thoughts -- I would feel more comfortable with a clarification of my desire to work with Mayer given his horrid "I get Jeff Whitty's job too or I'm not doing the show!" attitude. I used to be so nice as to forgive him; this experience has changed me.
(Repeats mantra to self: "I will not become a bitter jaded queen. I will not become ...")
Thank you --
Jeff Whitty has no desire to enter into an Assignment and Termination Agreement regarding the Book he authored for Head Over Heels. Hence, there is no need for you to prepare or email it for our review.
Pursuant to the April 15, 2013 Deal Memo among our respective clients, Mr. Whitty has now completed his review of the modified Book and proposed merged musical (to the extent the same is applicable herein) dated October 21, 2016 that you have provided to us.
Please be advised that after careful consideration over the course of several days, Mr. Whitty does not approve this October 21, 2016 modification of his Book or its use in the proposed merged musical of Head Over Heels. Nor does he approve of your clients’ engagement of Jim Magruder as a co-Author thereof.
Please be further advised that Mr. Whitty has, as is his absolute right under the Deal Memo and under the law, filed and received a copyright registration for his original Head Over Heels text. We note your written acknowledgement (and that of Gina Schock) that my client wholly owns his intellectual property and that his consent is necessary for the use of all or any part thereof, including any variations/adaptations thereof.
As of this date, Mr. Whitty has only given his approval of the Ashland version of Head Over Heels which includes the musical arrangements of Carmel Dean.
*** Could this have a bit more specificity ala "which is closely entwined with the arrangements of Carmel Dean."?
As a Tony Award-winning veteran of the Broadway stage and of many other theatrical endeavors, he is, of course
*** "as always?" Because up until now I have been. Or "he only wishes to continue an organic process of making his Book widely accessible ..."
, ready, willing and able to modify his Book so as to make it accessible, commercial and successful on the Broadway stage and beyond. He has and continues to be available to work with your clients’ creative team toward that goal.
*** I fear I get confused here -- because I quit after all -- and Mayer was such a smug "I got your precious!" mean girl, and Tom so resolutely unwilling to even listen to Carmel's arrangements or speak to me once, ever -- I think it needs a condition or two because frankly I could not work with them without conditions being met. And I love Tom but he doesn't belong here. If I were to write it: "... with the understanding that no artist can be expected to produce under any circumstance, especially in the face of losing so much that undeniably succeeded with audiences."
Please note that he has already made extensive revisions to his Book following the Ashland run and that approximately 20 minutes has already been cut from the show. Mr. Whitty remains available to meet with your clients and their creative team in New York to continue this process.
*** Here is why I would like the letter dropped on Wednesday: I'd like you to be able to say (again this is the artist's version!) "Please note that I am in possession of his revised draft that cuts the musical approximately 20 minutes further (with more to come in a supportive development process), features top-to-bottom rewrites of scenes that he feels did not land, remains in true iambic pentameter, and further develops the underlying thematic structure that was nowhere apparent in the backers' audition script. It retains the layered, complex musical storytelling he achieved with Carmel Dean."
As a follow-up to my letter of November 19th, we continue to review the press on a daily basis and fully expect there to be no public statements that impugn Jeff Whitty’s reputation and work.
*** Can we demand that they inform the money people that I did not write that script? It's such a blow to my reputation. And pride. Oh it can wait.
My client hereby reserves and does not waive any of his rights and remedies at law and equity, or under the terms of the aforementioned Deal Memo.
The back-and-forthing with LPMNY reached a stalemate.
On November 29th, Carmel Dean texted me, asking about an email she received from producer Donovan Leitch, which she then forwarded to me:
FROM: Donovan Leitch
TO: Carmel Dean
Hi Carmel,I hope you're well.
I would love to get on a call with you. I know Head Over Heels didn't turn out the way you'd hoped but there are still a few great arrangements of yours in the show and we have a fast track to Broadway. I want to talk about where things stand. Please let me know if you can chat. Thanks,Donovan
Donovan had fired her by email for no reason ever given, and had no right to use any of her work in the show. This email was a puzzle soon answered by an what I received a couple of days later: a perfectly composed and bullet pointed email, purportedly written by Charlotte Caffey:
December 1, 2016
TO: Jeff Whitty
FROM: Charlotte Caffey [of the Go-Go’s]
BCCed: [The Other Go-Go’s]
SUBJECT: Head Over Heels
Hello from all parts of the globe!
First of all, we want you to know how much we all appreciate and applaud your inspiration and brilliance in creating the original book for Head Over Heels, and how wonderful it is to see our songs used in such a creative way from such an unexpected source.
Rather than going back into the history of this endeavor, we want to talk about what is happening now. We don’t know what you know or don’t know about the status of things, but we compiled a list of everything that has happened in the last couple of months:
The OCT 21, 2016 29 hour read in NYC created a huge buzz for Head Over Heels.
The Head Over Heels Lab is confirmed for January 15th - February 12th at the Baryshnikov Theatre.
There is a February 9th presentation for theatre owners and investors and we are told that the show will get fully capitalized.
There is a clear path to Broadway for Summer 2017 opening.
These are all the people on board so far:
[Seven actor names redacted]
§ Michael Mayer - director
§ Tom Kitt - music arrangement
§ (Carmel Dean -additional music arrangements)
§ Spencer Liff - choreographer
§ Julian Crouch - stage design
§ Arianne Phillips - costume design
§ Kevin Adams - lighting design
§ (Costumes and set designs are already being sketched.)
§ Chris Boneau - PR
§ Serino Coyne - Advertising
§ 101 Productions - General Management
We have learned a lot of things in this process and we understand that the odds of actually getting a show on Broadway are astronomical. We are all very enthusiastic and committed to the Michael Mayer/Jim Magruder version of HOH and we are so excited that an opening on Broadway is just around the corner in 2017. Just as a reminder-we freely gave you our entire catalog of music in good faith, which you have exclusively had for the past 6 years. And during this past summer when we did our last tour we did a ton of press. We praised you and HOH and told our fans that even though we are retiring from touring, our music will live on, on the Broadway stage in Head Over Heels.
That being said makes it even harder to say this: If this version of HOH does not move forward, then in January 2017 we will bring our catalog to another writer to tell a completely new and different story with our music.
As you can tell from our email-we are thrilled about the current show and its current trajectory, and we are respectfully asking you, Jeff, to please let this happen.
Belinda, Jane Gina, Charlotte & Kathy
The subtext of this email was so bald that I had to chuckle. SURRENDER, JEFF WHITTY. YOU ARE OUTNUMBERED! I was disappointed, too. I’d counted on the Go-Go’s as fellow artists to stand up for me - for after all, I spent three arduous years creating a show with their music that was undeniably prized. For it was. If my work was poor, why were these people so grabby? Less self-centered artists might express gratitude to a colleague, instead of sending such a toxic email.
Charlotte later claimed to my face that she and the other Go-Go’s got together and drafted this email themselves with no outside help. But if so – why did Carmel receive that email from Donovan a few days prior? The answer, I believe, can be found in the fact that Carmel was included in the list but in parentheses (giving them an “out” if caught lying – “It was in parentheses!”) which suggests a collaboration with the producers – and likely LPMNY as well. For the tidy perfectly-punctuated language and bullet-points were hardly typical of any of the Go-Go’s or producers.Alas, Carmel did not comply with Donovan’s request. After all, he threw three years of her “great arrangements” down the toilet in a breezy email ten months before. She smartly passed on joining the circus and washed her hands of the whole mess.
 This is a typical tactic of guilty people: "Why are you stuck in the past?"