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Screenwriter and Academy Award-winning actress Emma Thompson has prevailed in a lawsuit against another writer who penned a script about a love triangle involving art critic John Ruskin, his teenage wife Effie Gray and pre-Raphaelite painter John Everett Millais.
Thanks to a ruling Tuesday, Thompson can release her film, Effie, without fear of infringing two other screenplays about a sex scandal that rocked 19th century England. The film is set to come out next year and stars Dakota Fanning, Robbie Coltrane and Thompson.
In the lawsuit, Thompson battled Eve Pomerance, who had authored and copyrighted two screenplays, The King of the Golden River and The Secret Trials of Effie Gray, both concerning the same subject matter as the one that Thompson wrote.
New York District Court Judge J. Paul Oetken has issued a 61-page opinion clearly that is intended to be more than just a summary judgment ruling. The judge, seemingly inspired by the topic at hand, has delivered an opinion that functions as a quasi-legal journal scholarly thesis. He discusses the nature of creativity in pulling together historical facts and critiques how courts view original authorship on works of imagination that are built on the foundation of underlying facts.
The tale of Effie is the story of art, sex and public intrigue. It’s a highbrow version of TMZ before the tabloid era, so it shouldn’t be a surprise that Victorian England’s most notorious sexual drama has served as a rich source of inspiration for historians, artists, dramatists and scholars.
As a result, the judge must wrestle with the idea of authors staking originality in a well-trodden topic.
The backdrop of Oetken decision is a legal antecedent — Hoehling v. Universal City Studios, Inc., a 2nd Circuit ruling in 1980 that went against an author of a nonfiction book who contended that George C. Scott‘s action thriller The Hindenburg stole his book’s premise that the airship was sabotaged by people out to embarrass Adolf Hitler. The appellate circuit noted then how “virtually impossible” it was to write about a particular historical era without resorting to standard literary devices, such as scene a faire involving indispensable incidents, characters or settings.
In other words, if an author writing about Nazi Germany wishes to write a scene about soldiers making a “Heil Hitler” salute, one can hardly expect to claim originality and thus, copyright protection for this, right?
Then again …
“Some commentators and scholars have argued that Hoehling was wrongly decided because it misunderstood the nature of the historical enterprise,” the judge wrote. “They contend that, whereas Hoehling assumes historical facts and interpretations exist out in the world as objective and discoverable truths, history actually involves a deeply subjective, contested and imaginative process that requires the creation of value-laden narratives purporting to represent a lost world.”
As much as the decision functions to give Thompson and her attorney Andrew Deutsch at DLA Piper a win, it also serves to rebut those critics who believe that the process of gathering facts and presenting them to audiences deserves more respect and therefore more copyright protection.
“Hoehling is not an opinion about historians’ lack of creativity,” the judge continued. “But as its opening paragraph states, Hoehling is concerned primarily with the unique importance of maintaining a free flow of accessible historical information.”
The ruling then spends some time considering whether strong or weak copyright protection results in the production of historical knowledge and understanding. In short, it’s the perpetual debate over the essential being of intellectual property under the U.S. Constitution.
Throwing his robes around those who believe that less is more, Oetken eventually gets around from his scholarly digression to address his task at hand in the Effie dispute. He notes the difficulty of determining infringement in the historical fiction realm where copyright doesn’t protect facts — only imagination. Unfortunately it’s not easy to separate one from another, he wrote, and cautioned about the “particular care” that must be taken in analyzing substantial similarity between one historical fiction work and the next. His idea of doing this — with nods to Francis Fukuyama and G.W.F. Hegel — is “a careful parsing of protectable fictionalizations from unprotectable interpretations, since both involve the elaboration of meaning in a past that lacks an internal narrative structure or self-determined meaning.”
For more on what the judge had in mind and how it was applied to things like the dual fictional portrayals of how Ruskin discovers the Effie-Millais affair, here’s the full decision:
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner
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