NIAGARA FALLS – “The Spirit of the Mist” debuted downtown last spring. Dancers in Native American dress, flanked by tepees aglow in orange light, tell the story of the world famous falls to pulsating drumming at Joseph M. “Smokin Joe” Anderson’s Native Center on First Street.
Then, a couple of months ago, “Thundering Waters Live Show” premiered in a venue just a couple of blocks away. It, too, features live Native American dancing that centers on tales about the falls.
Anderson was not happy, and he is suing a former employee, Anthony C. DiNatale Jr., who created Anderson’s show at the Native Center before leaving and helping put on “Thundering Waters” at the One Niagara building on Rainbow Boulevard.
But the fight isn’t about the copycat show.
In a strange twist, the lawsuit alleges “Thundering Waters” was accepting for its performances tickets that Anderson had sold to a New York City-based tour group to bring to Anderson’s show.
It appears neither DiNatale nor One Niagara is making any money off the switcheroo.
But Anderson contends in his lawsuit that the images on the tickets are a trademark he applied for. He also claims the newer show is inferior to his and that it might be give people the wrong impression about his productions.
“We have no issue with a competing show,” said Brian D. Gwitt, Anderson’s attorney. The new show, however, “should stand on its own,” he said.
So why would DiNatale bail on Anderson to start his own show? There is no hint of any motive in Anderson’s lawsuit, but some with knowledge about the tiff say it’s a case of bad blood.
The first performances of “The Spirit of the Mist” started about a year ago in Smokin Joe’s Native Center. It was the latest venture for Anderson, a Tuscarora businessman whose business is rooted in cigarettes and gasoline. Anderson also owns numerous downtown properties, including a hotel and a now-defunct winter park that houses a tubing hill and synthetic ice rink that Anderson opened as a year-round attraction.
DiNatale, a longtime employee of Anderson’s who did a lot of work in marketing, was a key figure in getting the “Spirit of the Mist” show going for him.
Then last fall, DiNatale and representatives of L&L Travel Enterprises went to Europe on what was purported to be an effort to drum up business for “The Spirit of the Mist,” according to the lawsuit.
When DiNatale got back, he left his job with Anderson, saying he was starting his own business. The lawsuit contains no further explanation of the split.
Anderson’s lawsuit asserts he had a two-year deal with L&L Travel Enterprises, a New York City-based tour operator, as of May of last year, in which the company agreed to buy a minimum number of tickets to the show at a discounted price.
Under terms of Anderson’s deal with the tour operator, L&L Travel Enterprises would purchase at least 3,000 tickets in each order, paying $7 a ticket. The deal requires L&L to purchase at least 50,000 tickets – which would bring in a minimum of $350,000 for Anderson – over the two-year agreement.
In court papers, Anderson criticizes the “inferior quality” of the show at One Niagara, claiming it is shorter and has less-talented dancers, some of whom “often appear to be inebriated.” He also claims one of his employees gained entry to the show at One Niagara with a ticket for Anderson’s show.
A Buffalo News reporter attended recent performances of both shows and found them to be similar in many ways, though there were some distinctive elements.
Performances of “The Spirit of the Mist” take place in a room lined with rows of padded folding chairs and bleachers in the back. Dancers wear native attire colored in florescent orange, green, purple and other hues that glow under the stage lights, moving to the steady beat of a 3-foot-tall drum played on the side of the stage.
“Thundering Waters” is performed on the second floor of One Niagara. You have to take the escalator and then walk through the Made in America store to reach the L-shaped room lined with chairs. Dancers wear similar styles of Native American dress and provide similar performances of the hoop dance, round dance and other dances.
An adult ticket purchased at the door costs $20 for each show. There were about 100 attendees at Anderson’s show, while the next night there were about 300 at One Niagara’s.
Anderson’s show ran 29 minutes, while One Niagara’s show ran 27 minutes.
Anderson’s show featured nine dancers, as well as live drumming and singing performances. One Niagara’s show had seven dancers and what was supposed to look like live drumming and singing, but the show relied more on prerecorded drums and vocals. The live singer could barely be heard as the prerecorded vocals overpowered the volume of the live ones. Anderson’s show had some prerecorded music, but much more live music than One Niagara’s.
The stage was larger at Smokin Joe’s Native Center, while the stage at One Niagara was smaller, though the setup allowed audiences to be closer to the performers. The performance area in Smokin Joe’s Native Center is more like an auditorium, with much higher ceilings.
A few audience members at “Thundering Waters” were invited on stage to try to learn the “round dance.” There was no real opportunity for audience participation during “The Spirit of the Mist.”
After both shows, audience members could take pictures with the dancers.
A business strategy
Though DiNatale did not return two calls requesting comment, his attorney said the new show only accepted the tickets to drum up business and was never attempting to use the other show’s name or trademark.
“I think One Niagara just honored them to get business,” said James C. Roscetti, DiNatale’s attorney, who also represents One Niagara in other matters.
Roscetti, who said the “Thundering Waters” production is owned by One Niagara, not DiNatale, said he does not believe there are any more tickets from Anderson’s show in possession of the tour company, which gives them to visitors who take buses to visit the Falls from New York City.
Roscetti also said he believes the matter may be resolved without going to court.
On April 15, a judge granted Anderson’s request for a temporary restraining order, Gwitt said, which legally blocks DiNatale from accepting tickets good for Anderson’s show.
The issue of the agreement with L&L Travel Enterprises to bring attendees to Anderson’s show is not addressed with this lawsuit, and “will be dealt with separately,” Gwitt said.