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From Intellectual Property Law Daily, April 03, 2018

‘Anastasia’ musical could infringe French play and English translation

By Thomas Long, J.D.

A Broadway musical adapting a classic Russian tale about a woman believed by some to be the Grand Duchess Anastasia Romanov could be substantially similar to a play written in the 1940s by French playwright Marcelle Maurette and translated into English by Guy Bolton in the early 1950s, the federal district court in New York City has decided. Genuine issues of material fact precluded a determination on summary judgment that the author and producers of the musical did not infringe copyrights held by the successors-in-interest to Maurette and Bolton. Although the parties’ respective works both were based on historical facts, they shared enough fictionalized and copyright-protectable elements for the owners of the rights to the French play and the English translation to go forward with their claims (De Becdelievre v. Anastasia Musical, LLC, April 2, 2018, Hellerstein, A.).

Original play and English translation. Plaintiff Jean-Etienne de Becdelievre was the sole owner of Maurette’s copyright interests in the French version of the original "Anastasia" play, and co-plaintiff Tams-Witmark Music Library, Inc., was Bolton’s successor-in-interest. The plaintiffs filed a copyright infringement suit against Terrance McNally, who wrote a musical version of the story, also called "Anastasia," which premiered on Broadway in April 2017. Also named as a defendant was Anastasia Musical LLC, the company that managed the production. Both works told the story of an orphan named Anna (or Anya) who was purported to be the youngest daughter of Tsar Nicholas II, whose family was murdered by Bolshevik secret police in 1918. This story was based on an actual person, Anna Anderson, whom some believed was in fact Anastasia, suffering from amnesia after having escaped from the Bolsheviks.

Licensing history. The French version of the play was registered with the U.S. Copyright Office in 1948. The English translation was registered in 1952. In 1955, Maurette and Bolton entered into a licensing agreement with Twentieth-Century Fox Studios, allowing Fox to produce a film version, while Maurette and Bolton retained their respective rights to any stage productions based on their works. Fox released a film version of "Anastasia" in 1956 and twice exercised options to extend the movie rights in the story. Fox released an animated version in 1993. An ice skating production, "Anastasia on Ice," was performed in 1998 and 1999, for which the plaintiffs granted Fox a retroactive license. That license confirmed that the plaintiffs retained the rights to productions on the "spoken stage."

According to the court, McNally and his partners were aware of this licensing history when they began developing the musical. They had obtained a license from Fox to use the creative elements from the films in the musical adaptation. However, this license—to which the plaintiffs were not a party—specifically excluded stage rights to the play. It appeared that the parties had engaged in negotiations regarding a stage-rights license, but had been unable to reach an agreement, the court said.

Infringement claims. The plaintiffs filed suit against the defendants, asserting that the musical infringed their stage production rights. The defendants moved for summary judgment, asserting that the parties’ respective works were not substantially similar, as a matter of law.

Substantial similarity. Both the play and the musical borrowed elements of the story of Anna Anderson, using it as a skeleton on which to build a fictional story. The parties largely agreed that the historical facts used by the respective works were not protected by copyright. Nor did copyright protection extend to elements that amounted to scenes a faire—sequences of events that necessarily resulted from the choices of a setting or situation. However, even when historical facts are involved—particularly in cases involving historical fiction—the right to build on a prior author’s work is not absolute, the court cautioned. The defendants did not have the right to appropriate the fictionalized elements that the plaintiffs had built on top of the historical skeleton of the Anastasia story.

The plaintiffs identified a number of alleged similarities as to these fictionalized elements that made summary judgment inappropriate in this case, the court said. For example, the parties’ works shared portions of the plot, specific characters and their development, particular scenes, and themes. The two works shared significant commonalities that were not traceable to any documented historical record. Both the play and the musical depicted the Anna/Anya character being recruited into a criminal conspiracy to convince the world that she was Anastasia Romanov, in order to gain access to the royal family’s fortune. This element was completely fictional. In addition, the play and musical both contained fictional accounts of Anna/Anya being tutored on Romanov history and royal behavior in furtherance of the conspiracy. Other fictional characters and plot elements existed in both of the parties’ works. Although other elements differed, the similarities were enough to create a genuine issue of material fact requiring the jury to decide the merits of the plaintiffs’ infringement claims, the court concluded.

The case is No. 16 Civ. 9471 (AKH).

Attorneys: Matthew H. Giger (Rosenberg & Giger, PC) for Jean-Etienne de Becdelievre. Prana A. Topper (Manatt, Phelps & Phillips, LLP) for Tams-Witmark Music Library, Inc. Dale Margaret Cendali (Kirkland & Ellis LLP) for Mr. Terrence Mcnally and Anastasia Musical LLC.

Companies: Tams-Witmark Music Library, Inc.; Anastasia Musical LLC

MainStory: TopStory Copyright NewYorkNews

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