DECISION RECAP: District Court Analyzes Copyright Protection for Historical Fiction

The following is a piece written by Anjan Choudhury of Copyright Alliance Legal Advisory Board member Munger, Tolles & Olson LLP.

Recently, a Federal District Court in New York waded into the world of Victorian love triangles to produce a 61-page opinion concerning the scope of copyright protection for historical fiction.  In Effie Film, LLC v. Eve Pomerance, No. 11-CIV-7087 (JPO) (S.D.N.Y. Dec. 18, 2012), Judge Oetken held that a film based on a screenplay penned by noted actress Emma Thompson did not infringe the copyrights of two screenplays penned by Eve Pomerance.

The Works Behind the Dispute – Love Triangles in the Victorian Art World

Thompson wrote a screenplay about a love triangle in the Victorian art world involving John Ruskin, John Everett Millais, and Euphemia “Effie” Gray.  While this suit was pending, the film based on Thompson’s screenplay was completed.  The film stars Thompson as well as Dakota Fanning and is slated for release in 2013.  Thompson assigned all of her rights to the screenplay to the film’s production company, Effie Film, LLC.

Thompson, however, was not alone in her interest in this particularly salacious story.  Many authors have tackled this tale, concerning the annulment of Effie Gray’s marriage to John Ruskin on the basis of “non-consummation,” Gray’s later marriage to Millais, and everything that happened before, between, and after.  (In fact, Effie Film is also involved in separate copyright litigation involving playwright Gregory Murphy whose 1999 play The Countess is also about the same scandal.)

One of those authors is Eve Pomerance.  Pomerance has authored two screenplays, The King of the Golden River and The Secret Trials of Effie Gray based on the same triangle.  On October 4, 2011 Pomerance contacted Effie Film notifying the company that Thompson’s screenplay violated Pomerance’s copyrights.  One week later, Effie Film filed suit in the Southern District of New York seeking declaratory relief of non-infringement.

The Legal Analysis – The Copyright Protection of Historical Fiction

In March 2012, Effie Film moved for judgment on the pleadings as to its declaratory judgment suit, as well as the dismissal of counterclaims brought by Pomerance.  Pomerance later dropped the counterclaims, leaving at issue Effie Film’s declaratory judgment claim.  For purposes of the motion, Effie Film conceded access but argued that declaratory relief was warranted because there was no substantial similarity between the works.  On December 18, 2012, Judge Oetken granted Effie Film’s motion, holding that Effie Film was entitled to declaratory judgment of non-infringement.

Judge Oetken’s opinion begins with an exhaustive description of the film and each of the two Pomerance scripts.  After introducing the general legal standards for copyright law and the substantial similarity analysis, the decision ventures into a larger discussion of how copyright law deals with works of historical fiction.

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