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Effie Film, LLC v. Murphy

Second Circuit affirms grant of declaratory judgment to producer of film based on same historical facts as those underlying defendant's screenplay, concluding that district court properly applied "more discerning" test given common historical basis for two works, and that any protectable similarities between works that were not based on historical facts involved only trivial, scattered details.

Defendant Gregory Murphy authored the screenplay The Countess based on the marriage of Effie Gray to John Ruskin, the well-known British art critic of the Victorian era. Plaintiff Effie Film, LLC, is a company formed to produce Effie, a film based on the same historical events. In response to Murphy’s claims that Effie infringed on his copyright, plaintiff filed an action seeking a declaratory judgment that its screenplay and film were non-infringing. Plaintiff subsequently moved for judgment on the pleadings, which the district court granted. (Read our summary of the district court decision here.)

On appeal, Murphy contended that the district court erred by applying an incorrect legal standard for determining whether Effie was “substantially similar” to The Countess for purposes of copyright law. The Second Circuit disagreed. First, the Second Circuit panel observed that where the allegedly copied work is not wholly original, but rather incorporates elements from the public domain, a court must apply the “more discerning” test, which requires a court to look for “substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed” work. More specifically, a court must examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting of the works, “while taking care to inquire only whether the protectable elements, standing alone, are substantially similar.”

The panel also emphasized that in evaluating the similarity of works in the genres of history or historical fiction, broad latitude should be given to subsequent authors who make use of historical subject matter, including theories or plots, to avoid a “chilling effect.”

Upon a de novo review, the Second Circuit concluded that the district court did not err in its substantial similarity analysis, and that the District Court properly considered all the relevant factors, including but not limited to setting, pace, plot development and focus, characters, and “total concept and overall feel.” While the district court, and the Second Circuit, acknowledged similarities between protectable components of the works that were not based on historical fact, it concluded that such similarities were either “trivial, scattered details” or were not sufficiently similar to cause a lay observer to consider the works as a whole to be substantially similar to one another.