Protecting Historical Fiction

Munger Tolles litigator Anjan Choudhury discusses which elements of historical fiction are protected under copyright law in a post on the Copyright Alliance’s blog Idea/Expression.

Mr. Choudhury analyzes a decision by the Southern District of New York involving a screenplay written by noted actress Emma Thompson about a notorious love triangle in the Victorian art world. Effie Film, LLC v. Eve Pomerance.

During filming, writer Eve Pomerance notified Effie Film, Ms. Thompson’s production company, that they were violating her copyright in two screenplays she had written about the same love triangle. The next week, Effie Films sued seeking a declaratory judgment of non-infringement.

In December 2012, the court, in granting Effie Film’s motion, ventured into a larger discussion of how copyright law deals with works of historical fiction. The court analyzed significant cases and concluded that “in cases involving historical fiction, courts must ‘separate out’ ‘unprotectible historical facts and interpretations’ before testing ‘for violations of the full copyright protection afforded the remaining protectable elements.’”

Mr. Choudhury concludes, based on the Effie Film decision, that, “where a copyright claim involves fictionalized accounts of historical facts, courts are likely to scrutinize closely the line between fiction and facts.”

Munger, Tolles & Olson is a member of the Copyright Alliance’s Legal Advisory Board. The board works with the organization and its members to advance copyright strategy.

Mr. Choudhury practices in a wide variety of matters involving complex civil, administrative and appellate litigation, focusing primarily on matters for clients in the entertainment industry.