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.

In particular, Judge Oetken discusses at length the Second Circuit’s 1980 decision in Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980)Hoehling involved an attempt by an author to assert copyright infringement against a movie studio because the studio’s 1975 film, The Hindenburg, concerned the same historical subject as his book.  Hoehling has generated considerable controversy because of its weak view of copyright protection and conclusion that “absent, wholesale usurpation of another’s expression, claims of copyright infringement where works of history are at issue are rarely successful.”  Judge Oetken notes the recent criticism, but concludes that “Hoehling prioritizes an instrumental conception of copyright law and concludes that weak copyright protections will best facilitate the creation and dissemination of new historical knowledge.”  He also defends Hoehling from criticism of its treatment of originality and notes that “incentive-based arguments may ultimately support Hoehling’s approach.” For instance, Judge Oetken observes that, “given the growth of a large professoriate motivated—professionally, personally, and financially—to generate new historical information even in the absence of strong copyright protection, weak protection may suffice to maximize production, or at least to push it above an independently specified floor.” 

The opinion then recognizes that due to more recent legal developments, including Judge Jones’s decision in the Crane case, works of history merit at least “thin” protection, i.e., protection against wholesale copying.  Moreover, Judge Oetken terms works of historical fiction a “hybrid genre” because they involve some of the “creativity ordinarily associated with pure fiction” but also “invariably draw on historical facts.”  As such, Judge Oetken concludes that, in cases involving historical fiction, courts must “separat[e] out” “unprotectible historical facts and interpretations” before testing “for violations of the full copyright protection afforded to the remaining protectable elements.”  Judge Oetken also recognizes that, in some cases, it may be necessary to analyze whether the selection and arrangement of historical facts deserve “thin” copyright protection.  In short, Judge Oetken’s opinion holds that, for works of historical fiction, courts must filter out historical facts first before assessing alleged copyright infringement.  Under the reasoning employed in his opinion, similarities that are rooted in historical facts generally will not matter to the substantial similarity analysis.

After separating out the similarities based on historical facts, Judge Oetken found that the film based on Thompson’s screenplay did not infringe Pomerance’s copyrights.  For instance, he observes that the works are similar in many of their plot structures such as Millais painting a portrait of Ruskin in Scotland but this “does not support a finding of infringement because these plot elements map onto historical facts.”  Rather, only in the “fictionalizations” or “where the works depart from actual history, or employ such creative devices as theme and pacing to infuse the work with different literary import, is copyright protection implicated.”  In most instances of those “fictionalizations,” Judge Oetken explains, the works are “markedly different” or “one work fictionalizes while the other remains close to the historical record.”  Effie Film thus shows that, where a copyright claim involves fictionalized accounts of historical facts, courts are likely to scrutinize closely the line between fiction and facts.

Additional Coverage:

The Hollywood Reporter, The Guardian