Effie Film, LLC, filed an action for a declaratory judgment of non-infringement against Gregory Murphy after Murphy made repeated claims both to Effie Film and in the media that the plaintiff’s screenplay and movie Effie infringed on his copyrighted screenplay The Countess. Both works told fictional accounts of the same historical facts relating to the unhappy marriage of Effie Gray to Victorian-era art critic John Ruskin. Effie and John had married at the encouragement of their parents but, infamously, never consummated the marriage. After years of abuse and neglect by John, and after finding a new love interest, Effie, with the assistance of two confidantes, executed a plan to annul her marriage to John so that she would be free to marry her new love. Murphy claimed that Effie followed the exact same time frame, had an identical tone, and contained plot elements and character developments directly traceable to The Countess. On Effie Film’s motion for judgment on the pleadings, the court granted the motion, concluding that the two works were not substantially similar.
Noting that no dispute existed as to Murphy’s copyright in The Countess, or that Effie Film had access to Murphy’s work, the court focused its analysis solely on the question of substantial similarity. The court rejected Murphy’s threshold argument that no justiciable controversy existed because plaintiffs had not provided a copy of the Effie film to the court for review as it was not yet completed and the court was not able to render a declaratory judgment on the film, concluding that the film likely would not differ significantly from the script, given the large financial investment in developing the script and the resources invested in the litigation that would be wasted if Effie Film released a movie bearing little resemblance to the screenplay it submitted to the court. Acknowledging the “theoretical possibility” that its opinion would not resolve the ultimate controversy, the court found “common sense counsel[ed] to the contrary.”
Turning to the issue of substantial similarity, the court noted that works of historical fiction present a unique challenge, because historical facts and interpretations are not copyrightable and many of the key features of a work—plot, setting, characters—are largely excluded from the analysis. In addition, scenes a faire—obligatory elements included in a work given its other narrative and aesthetic choices, such as travel by carriage and conversations over tea to depict Victorian England, or gondolas and canals for a backdrop in Venice—are also unprotectable. The court began the analysis by emphatically stating, “[t]he two works have no dialogue in common, no characters in common that are not historical figures, and though they contain the same settings (a similarity attributable to their shared historical background) the two screenplays give these episodes vastly differing levels of attention. The result is two works narrating the same basic events but with greatly differing internal structures.”
The court also noted that in Effie a great deal of the action occurred at the Ruskins’ home in Denmark Hill and in Venice, while in The Countess, much of the development and eventual climax largely took place in Scotland. Further, Effie traces a great deal of Effie’s misery to John’s mother rather than to John himself, but The Countess focuses more on John’s own acts of cruelty. To quantify its analysis, the court explained that in Effie, the screenplay did not arrive in Scotland for approximately 80 pages, 45 of which are spent in Denmark Hill and 16 of which are spent in Venice. In comparison, the pace in The Countess was very different, with the screenplay reaching Scotland in only 12 pages, spending less than one page in Denmark Hill and only 3.5 pages in Venice. Further, the Effie screenplay remained in Scotland for 22 pages while The Countess lingered for 32. The court emphasized that these were not just differences in length but a demonstration of the completely different structure of the two works. “Although they contain analogous events, and travel through the same locations, thanks to their shared historical subject matter, the two works remain quite dissimilar in their two approaches to fictionalizing the same historical events.”
The court went on to point out other smaller but still significant differences. In Effie, John’s father is a rather innocuous figure compared with John’s mother, whereas in The Countess, both equally abuse Effie. Effie focused on a metaphorical significance of naming and renaming in a way that The Countess did not, and The Countess ascribed a darker and more deeply metaphorical significance to Scotland. Lastly, while The Countess included Effie’s happy marriage to her new love and John’s subsequent descent into madness, neither of these developments is depicted in Effie but only explained through a series of cards after the film fades to black.
The court then examined and rejected the more significant alleged similarities. For example, while both works included a similar character, the Ruskins’ manservant, who was introduced in a similar manner as he meets Effie for the first time as she arrives with John, these elements were not protectable not only because they were drawn from historical facts, but also because the introduction of the manservant character was a scene a faire. Murphy also contended that both works included a similar theme, “the idealization of women and a denial of their humanity,” which he claims was original to him. As the court noted, however, a theme is not copyrightable, and the fact that another screenplay uses the same theme “cannot render that screenplay substantially similar, without more to show that this was done using similar expressions of that theme.” The court also rejected Murphy’s argument that the use of a Greek chorus in both works was significant, finding that the theatrical device was used in both works for the very purpose for which it was intended—to establish the prevailing attitudes of the art world without ascribing them to any particular character—and that, while a similarity due to the fact that it was used in both works at the same moment in the story, it contributed very little in establishing the similarity of the works as a whole. The use of a similar excuse for Effie to escape Denmark Hill—a letter from her parents calling her home—was also of little significance, given that in Victorian times a letter was the only way for a daughter to arrange a visit to her parents. The court observed other similarities but dismissed them, reasoning that the standard did not require Effie Film to show that there were no similarities but only that the works were not substantially similar in their total concept and feel. On that standard, the similarities pointed out by Murphy fell short of rendering the works as a whole substantially similar.