'Anastasia' Musical Lawsuit Steps Toward Trial as Judge Evaluates Similarities in Historical Fiction

Anastasia Production Still H 2016
Joan Marcus

Anastasia Production Still H 2016

Prolific playwright Terrence McNally is one step closer to trial in a copyright suit over his Broadway musical Anastasia after a federal judge on Monday rejected his argument that his work and a 1940s play aren't substantially similar.

Jean-Etienne de Becdelievre, heir of playwright Marcelle Maurette, in December 2016 sued Terrence McNally and Anastasia Musical LLC (AML). He claims the show infringes on Maurette's tale of a young woman who claims to be Grand Duchess Anastasia Romanov, the daughter of Russian Tsar Nicholas II who was killed by revolutionaries along with his wife and other children. While some of the play is loosely based on history, de Becdelievre argues much of the dialogue, characters and plot are fictional.

The heir claims the play was licensed to 20th Century Fox for a 1956 film and a 1997 animated feature, but that he retained all rights in live stage performances. According to his lawsuit, Fox transferred rights it did not possess to AML to produce the musical, which opened at the Broadhurst Theatre in April 2017.

McNally, who wrote the show's book, moved for summary judgment — arguing the play and the musical aren't substantially similar. 

On Monday, U.S. District Judge Alvin Hellerstein disagreed and denied the motion. Hellerstein found McNally was aware of the licensing history and obtained a license from Fox which imposed on producers an obligation to "use all reasonable efforts" to secure live stage rights. (Read the full opinion below.)

"[E]ven in the realm of historical work, and especially in cases involving historical fiction, the right to build on a prior author's work is not absolute," writes Hellerstein. "Put differently, to the extent that plaintiffs seek to assert copyright protection over the historical underpinnings of the Play, their claim must fail. But the fictionalized elements that are built on top of the historical skeleton are subject to copyright protection, and these fictionalized elements form the basis of plaintiffs' claim."

After parsing through the works and excluding from consideration any non-copyrightable historical facts, Hellerstein found the works share "significant commonalities not traced to any documented historical record."