Emma Thompson and her husband, Greg Wise, wrote a screenplay about the love triangle between John Ruskin – an influential art critic of the Victorian era – his teenage bride,  Euphemia (“Effie”)  Gray, and John Everett Millais, Ruskin’s protégé. That screenplay has since been turned into a movie – Effie – starring Thompson, Wise, Dakota Fanning, Tom Sturridge, and Robbie Coltrane, due to be released this year.  On Wednesday, Judge Griesa granted Effie Film’s motion for judgment on the pleadings in an action it had filed against Gregory Murphy for a declaration that the “Effie” screenplay does not infringe upon Mr. Murphy’s copyright in “The Countess” – a play and screenplay he authored based upon the same historical events.

Judge Griesa acknowledged the challenge in copyright challenges based on historical fiction:

[F]or works of historical fiction like “Effie” and “The Countess,” the substantial similarity analysis presents challenge enough. The difficulty comes from the facts that only “protectable elements” are to be compared in evaluating the similarity of two works. In a work of historical fiction, very many elements of a work are drawn from historical events, not from the author’s own creativity. Historical “facts” and interpretations themselves are not copyrightable, only their creative selection and arrangement to form a new work. See Crane v. Poetic Products Ltd., 593 F. Supp. 2d 585, 590 (S.D.N.Y. 2009) aff’d, 351 F. App’x 516 (2d Cir. 2009) Therefore, many of the key features of a work of historical fiction — it’s plot, setting, characters — are largely excluded from the “protectable” realm and, accordingly, from the similarity analysis. “[W]e must attempt to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995). And, in fact, this formulation makes the task sound easier than it is. A literary work, like the screenplays at issue here, is not simply a collection of elements, the provenance of which may be traced back to the author’s mind, to a history book, or elsewhere. Literature is not reportage just as history is not merely a collection of facts. Even beyond the historical elements, however, the court must also exclude from its similarity analysis so-called scènes á faire. These are elements that are included in the work, not as a product of an author’s creativity, but because they are obligatory given the work’s other narrative and aesthetic choices. Thus, if a work is to be set in Victorian England, for example, travel by carriage, glittering ballrooms, stiff dinners, conversations over tea, and tensions arising from an overly-rigid system of class and gender roles are de rigueur. Similarly, when Venice is the backdrop, there can be little creativity in the decision to depict gondolas and canals.

Effie Film brought an essentially identical action against the owner of the copyright in two other screenplays about the “intertwined lives” of Ruskin, Millais and Gray who, like Mr. Murphy, had threatened a copyright infringement lawsuit.  Judge Oetken granted Effie’s motion for judgment on the pleadings in that action in December.