More of the same? The plot thickens

Following on from the decision last week about the alleged similarities between two works about the life of ‘Effie Gray’, comes news that a Florida judge has allowed an infringement  claim by a Venezuelan television network against an American television group over the plot of a telenovela to move forwards. Judge Robin Rosenbaum, in the U.S. District Court for the Southern District of Florida, ruled that Venezuela's LaTele Television CA can proceed with its copyright lawsuit against Telemundo Communications Group LLC, accusing the U.S. company of infringing the copyright in "Maria Maria," a LaTele telenovela about the adventures of a young woman with amnesia. The alleged copy, "La Rastro," is also about a young woman with amnesia. Refusing to dismiss the case, Judge Rosenbaum  said that although the distinction between an idea and its particular expression is "a lot easier stated than applied," the case could go forward, listing similarities in the two programs that included both main characters who, after confronting the husband's mistress, are severely injured in a car crash; the fact that both main characters have facial reconstruction surgery causing them to look exactly like the mistress; and that both characters also do not initially remember their original identities. Judge Rosenbaum also noted that "Maria Maria", which first aired in 1989, and "La Rastro" which premiered in October 2008, shared a writer. 

And in the final of three recent decisions on what is and isn't substantially similar, and one the swings back towards the decision in ‘Effie Gray’, US District Judge Dolly Gee has ruled that the 2011 film In the Land of Blood and Honey, Angelina Jolie’s directorial debut, is not substantially similar to a book on the Bosnian civil war, The Soul Shattering (Slamanje Duse) by Bosnian writer James J Braddock (Josip J Knezevic). Braddock claimed that the film, about a love affair during the Bosnian Civil War, violated his copyright in The Soul Shattering and that one of the film's producers, Edin Sarkic had read The Soul Shattering and there had been discussions over the possibility of creating a film adaptation of the book. The Soul Shattering is based on the true story of a Bosnian-Croatian woman rescued from a Serbian concentration camp by the camp's deputy commander - and after analysing the plot and sequence of both works, Judge Gee noted

that the film features a relationship between a female Bosnian Muslim artist and Serbian soldier, who meet again when the woman is a prisoner at a camp the Serbian's ruthless father is  overseeing. Both include escape sequences and brutal rape scenes, but Judge Gee said that Braddock, who now lives and writes in Croatia, can't claim to have "invented the concept of rape as a war crime" and said that whatever similarities there were they didn’t give rise to substantial similarity, "particularly in light of the fact that those overlapping concepts are commonplace in books and films depicting war" adding In The Land of Blood and Honey was primarily a story of betrayal, revenge and tragedy with little or no hope, while The Soul Shattering focuses on family, love and strength. Jolie had said she got the idea for the book after travelling to Bosnia as a UN goodwill ambassador.

With Effie Gray and In The Land of Blood and Honey, both 'plots' were based on real life scenarios, albeit added to  - the historical life of Effie Gray - and the Bosnian civil war. The Maria Maria claim is, in contrast, based on a wholly fictional plot. In between one might put the claim brought by by the Authors of The Holy Blood and The Holy Grail against Dan Brown, author of the Da Vinci Code - where is was alleged that the 'central theme' of the HBHG had been copied by Brown. At the Court of Appeal, refusing the appeal against the judgment of Mr Justice Peter Smith that whilst six chapters of the DVC had been drawn from the HBHG, there had been no copying, Mummery LJ said “Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the Claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about. "

LaTele Television CA v. Telemundo Communications Group, U.S. District Court for the Southern District of Florida, No. 12-22539. 

James Braddock v Angelina Jolie, GK Films and Others United States District Court Central District of California CV 12-05883 DMG (VBKx). You can view an annoyingly "branded"  Pdf of the judgment from the Hollywood Reporter here.

More at http://www.aceshowbiz.com/news/view/00059067.html  and from the Hollywood Reporter here

Baigent and Leigh v The Random House Group Ltd [2007] EWCA Civ 247  the decision can be found here 

Emma Thompson's Effie Gray script is clear of second claim

Effie Gray
(Thomas Richmond 1802-1874)

A New York federal court has decided that a screenplay by actor Emma Thompson, a fictional work based on historical facts, was not a copy of an earlier work. The case, which was decided by Judge Thomas Griesa, a U.S. District Judge with the Southern District of New York, revolved around a screenplay, "Effie," by the Academy Award-winning actor. 

Effie is based on the romantic life of Euphemia "Effie" Gray, who was married first to Victorian-era art critic John Ruskin and then John Everett Millais, a painter and founder of the pre-Raphaelite art movement who had painted her. The annulment of her first marriage to Ruskin, which was never consummated by Ruskin, caused a scandal at the time. Gregory Murphy, an author, claimed that the Effie screenplay infringed on a copyright for a screenplay that he had written, also about Gray's love life, based on his West End play "The Countess" and his claim is perhaps best summed up in a 2011 article in the Daily Mail titled "The Day I Sat in Emma Thompson's Kitchen and Accused Her of Stealing my Movie".  Murphy is sure his screenplay was sent to Thompson and her husband through a mutual friend, and by the casting director of his play.

Murphy had said that he felt Thompson;s screenplay was "distinctly related to my screenplay in its time-frame, character development, structure and tone". Rather than wait for Murphy to file a lawsuit, Effie Film LLC, which was producing Thompson's movie, pre-emptively sought a declaratory judgment in 2011 from the court in Manhattan against Murphy, not least as the film was at a critical stage in the funding process. Effie Film then moved for a judgment on pleadings last May.
  

Effie Gray by Millais

In a 42 page decision Judge Griesa granted Effie Film's motion for judgment on the pleadings after a lengthy review of both screenplays saying "The two works have no dialogue in common, no characters in common that are not historical figures, and though they contain the same settings, the two screenplays give these episodes vastly different levels of attention". Judge Griesa acknowleded "The works contained some similarities apart from the shared historical background, including a young manservant infatuated with Effie and a common theme of "the idealization of women and a denial of their humanity" but when on to say that the test in his decision was whether the works were "substantially similar" in their total concept, and by that standard Murphy's allegations fell short. Judge Griesa concluded that the two works have "greatly differing internal structures", and are "quite dissimilar in their two approaches to fictionalising the same historical events" 

Mr Murphy responded to the decision saying "we are reviewing all options, and our first will be to request a copy of the finished film" . Thompson's movie is in post-production and stars Dakota Fanning as Effie Gray, Tom Sturridge as Millais, and Thompson as Effie's supporter, Lady Eastlake.

Last year, District Judge Paul Oetken, also in the Southern District of New York, ruled that Thompson's screenplay did not infringe a copyright on another screenplay about the same love triangle by author Eve Pomerance. 

"We are pleased that Judge Griesa's decision confirms that copyright does not protect history and every author is free to draw from the historical record" Thompson's lawyer Andrew Deutsch (DLA Piper) said in a statement 

Effie Film LLC v. Murphy, U.S. District Court, Southern District of New York, No. 11-00783.

http://en.wikipedia.org/wiki/Effie_Gray

http://newsandinsight.thomsonreuters.com/Legal/News/2013/03_-_March/Emma_Thompson_copyright_maneuver_protects_screenplay_rights/