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IP/Entertainment Case Law Updates

de Becdelievre v. Anastasia Musical LLC

District court holds that sufficient protectable similarities exist between Broadway musical “Anastasia” and original play of same name that cannot be traced back to historical record, warranting denial of defendants’ motion for summary judgment as to copyright infringement claim.

Plaintiffs Jean-Etienne de Becdelievre and Tams-Witmark Music Library Inc. are the owners of the copyright interests in the stage play “Anastasia.” Written in the 1940s by the French author and playwright Marcelle Maurette, “Anastasia” tells a fictionalized version of the real-life story of Anna Anderson, a woman who claimed that she was Anastasia Romanov, the last surviving daughter of the Russian tsar Nicholas II. De Becdelievre owns the rights to Maurette’s play, which was later adapted into an English-language version by Guy Bolton, of whom Tams-Witmark is a successor-in-interest. 

In April 2017, a musical version of “Anastasia,” written by Terrence McNally and produced by Anastasia Musical LLC, premiered on Broadway. Plaintiffs sued McNally and Anastasia Musical in New York federal court, claiming that the musical infringed their copyrights in the original play authored by Maurette and adapted by Bolton. The district court ordered that the case proceed to limited discovery on the issue of how the allegedly infringing work was created, following which defendants moved for summary judgment. The court denied defendants’ motion, declining to hold that the original play and subsequent musical were not substantially similar as a matter of law.  

The court recognized that elements of creative works constituting historical facts are excluded from copyright protection. That exclusion, the court explained, recognizes the public benefit in encouraging the development of historical and biographical works and their distribution. For that reason, works of historical fiction “may make significant use of prior works” regarding the same subject. That right, the court observed, is not absolute, however. Although a subsequent work of historical fiction may use elements of prior works that reflect historical facts or interpretations, it may not appropriate creative aspects such as fictional plot points, scenes, settings and character traits. In other words, the court explained, fictionalized elements that are “built on top of the historical skeleton” are subject to copyright protection.

The court identified various unprotectable historical elements that appeared in and undergirded both works: the murder of Tsar Nicholas II and his family in 1918 during the wave of communist revolution in Russia; the rumors that Anastasia, the Tsar’s youngest daughter, had survived the murder and fled to Europe; and certain details of the life of Anna Anderson, who claimed to be Anastasia. Nonetheless, the court observed, plaintiffs’ claim was premised upon the alleged copying of fictionalized elements built on top of those facts. Even accepting defendants’ description of the historical record, the court held, “a close reading of the [original play] and the [Broadway musical] reveal[ed] crucial elements of both that cannot be traced back to the historical record.” For example, both works depicted the Anna character (named “Anya” in the musical) being recruited and tutored on Romanov history and royal behavior by an ill-intentioned band of conspirators in order to convince the world that she is Anastasia. The court explained that these elements had no basis in the historical record identified by defendants.

Furthermore, the court observed, both works hinged on a much-anticipated meeting between Anna and her putative grandmother, the Dowager Empress. Although the Empress was a historical figure whose existence was not subject to copyright protection, the court agreed with plaintiffs that there were significant expressive similarities between the two works in how the Empress was portrayed — as cold and hardened by the loss of her family and initially reluctant to meet Anna, but ultimately sympathetic to her. Most notably, in the court’s view, both works fictionalized a meeting between Anna and the Empress, in which the Empress recognized Anna as her granddaughter and agreed to support her, as well as Anna’s ultimate decision, after having been accepted as Anastasia, to forgo a life of royalty.

Although the court acknowledged that the works differed in “total concept and feel” insofar as the musical was a more lighthearted and faster-paced work, it deemed this distinction non-dispositive.  Comparing total concept and feel, the court stated, “is simply not helpful in analyzing works that, because of their different genres and media, must necessarily have a different concept and feel.”

Summary prepared by Frank D’Angelo and Sara Slavin

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