In Effie Film, LLC v. Eve Pomerance (11–CIV–7087 (JPO)), the court granted Effie Film, LLC’s motion on the pleadings and found that its upcoming film did not infringe upon the copyrights in two screenplays by Eve Pomerance on a similar historical subject. In addition to paving the way for the Emma Thompson-written film Effie to be released this year, the decision provides a test for determining whether two historically-based works of fiction are substantially similar under the law, offering guidance to screenwriters and producers wishing to explore real events and people within the framework of narrative fiction without risking a copyright infringement claim.
Emma Thompson wrote the screenplay to Effie, a film scheduled for release in 2013. Starring an ensemble cast including Thompson, Dakota Fanning and Tom Sturridge, Effie explores the love triangle between the Victorian art figures John Rushkin and John Everett Millias, and Euphemia “Effie” Gray, the woman married to both of them. On October 4, 2011, Eve Pomerance contacted Effie Film, LLC (the company set up to finance, own and manage the production), notifying it that Thompson’s screenplay violated Pomerance’s copyrights in two previous screenplays Pomerance had written about the same three figures. As a result, Effie Film filed suit one week later in the Southern District of New York seeking declaratory judgment for non-infringement. On December 18, 2012, Judge Oetken granted Effie Film’s motion, holding that Effie Film was entitled to declaratory judgment of non-infringement.
With the growing interest in historical, period and biographical fiction in film (Lincoln, iJobs, Diana), as well as novels (Bring Up the Bodies, The Century Trilogy) and television (Mad Men, Downton Abbey, Boardwalk Empire), the Effie decision provides some real guidance in analyzing the aspects of a historical fiction that are protected by copyright, and those that are not. The court went to great lengths in examining the three separate screenplays at issue, taking great care in comparing the scripts within the confines of copyright law.
The court started with the basic test to determine if the Effie screenplay wrongfully copied either of the Pomerance scripts, whether there is substantial similarity in the “protectable” elements, noting that this test is one of the most difficult questions in copyright law and that works of historical fiction present unique complexities. The court discussed at length the 1980 Second Circuit decision in Hoehling v. Universal City Studios in which the court rejected an author’s attempt to assert copyright infringement against a movie studio for its 1975 film, The Hindenburg, based on the same historical subject as the author’s book. The court quoted the Hoehling decision that “the scope of copyright in historical accounts is narrow indeed, embracing no more than the author’s original expression of particular facts and theories already in the public domain.”
While noting that the Hoehling decision has been criticized by commentators for its weak view of copyright protection of the original elements of historical work, the court nevertheless defended the underlying policy analysis in Hoehling, as modified by more recent legal developments, (and in particular Feist), which offers at least thin copyright protection to the extent the interpretation of historical events is “expressed through an original selection, coordination and arrangement of theories and facts.”
In this backdrop, the Court remarked that works of historical fiction are a “hybrid genre” because they “do not present themselves as accounts of actual events and they partake to some extent in the creativity ordinarily associated with pure fiction, but at the same time they invariably draw on historical facts, take as their subject historical events and characters, and may hover near the line between historical interpretation and creative fictionalization.”
The Effie Test
To determine if works of historical fiction are substantially similar for purposes of copyright, the court first looks at how to separate the protectable elements from the unprotectable elements in the work, in order to then test for violations of the copyright protection afforded to the remaining protectable elements in the work. Second, the court may also need to analyze whether the selection and arrangement of historical facts deserve “thin” copyright protection based on the originality of the selection and arrangement.
Here, the court noted that the two inquiries essentially collapsed into a single analysis because “the creative arrangement of unprotectable historical facts for purposes of “thin’ protection is achieved through narrative devices (theme, characterization, pace) that span the entirety of the works and encompass the protectable fictionalizations.”
To apply its test, the court disregarded the plot structure, individual scenes, settings or features of historical characters that reflect historical facts but rather focused on what it considered the “creative “ elements, (a) fictional plot and scenes; (b) narrative structure and pace; (c) themes; (d) interpretation of characters; and (e) overall concept and feel.
The court took judicial notice of the historical facts pertaining to all three screenplays and then proceeded to parse out the non-protectable plot and plot structures in comparing the Effie screenplay separately to each Pomerance screenplay. In doing so, the court only found similarities in plot and structure that were not copyright violations as they either “mapped onto historical facts,” or differed greatly in their expression. The court noted that each work contained a great deal of fictionalization, but all differed in areas that stayed close to the facts or wandered far off. Of the five identified fictionalized scenes, none were found to be substantially similar once the historical facts were filtered out
Continuing a trend in copyright law, Effie Film v. Pomerance makes it clear that parties claiming infringement in historically-based works of fiction face an uphill battle. Writers wishing to set fictional stories in factual, historical settings may find themselves managing an inherent tension between historical accuracy and protectability under copyright law.
Those seeking to protect their historical fiction works to the fullest extent should strive to inject their work with fictionalized elements that expand or artistically elaborate upon plain historical facts (and even then, only the fictionalized elements may be protectable). Wherever possible, writers and producers would be well advised to document their source material for historical fiction and note where the work departs from historical fact. Of course, historical, fact-based or biopic works create other legal challenges and may also need to be evaluated for issues related to right of publicity, image likeness and defamation, amongst others.