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Effie Film, LLC v. Murphy

United States District Court, S.D. New York

March 22, 2013

EFFIE FILM, LLC, Plaintiff,

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[Copyrighted Material Omitted]

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For Effie Film, LLC, Plaintiff: Andrew Lawrence Deutsch, LEAD ATTORNEY, E. O'Brien Kelley, DLA Piper U.S. LLP (NY), New York, NY.

For Gregory Murphy, Defendant: Benjamin Sahl, Cowan, Liebowitz & Latman, P.C., New York, NY; Robert William Clarida, Reitler Kailas & Rosenblatt, L.L.C., New York, NY.

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Thomas P. Griesa, United States District Judge.

This is an action for declaratory judgment brought by Effie Film, LLC against Gregory Murphy. Effie Film is a company formed to produce a film based on a

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screenplay, " Effie," written by Emma Thompson[1] based on the infamous, unhappy marriage of Effie Gray and John Ruskin, a highly influential Victorian-era art critic. Murphy is also the author of a screenplay, as well as a play for the stage, (both entitled " The Countess" ) based upon the same historical events. Murphy has made repeated claims, both to Effie Film and in the media, that the " Effie" screenplay infringes on his copyright in " The Countess." Effie Film therefore has brought this action seeking a declaration that " Effie" does not infringe Murphy's copyright in " The Countess."

Effie Film moves for judgment on the pleadings. The motion is granted.

Procedural History

When this action began, on February 4, 2011, the film " Effie" was in its earliest stages. The film had not yet secured funding and the cast had not been finalized. On March 1, 2011, Murphy moved to dismiss the complaint on the grounds that the dispute between Effie Films and Murphy was not sufficiently concrete to satisfy the " actual controversy" prerequisite to this court's jurisdiction.

While that motion was pending, however, work continued on " Effie" --funding was secured, a cast was finalized, the script was revised, and shooting was completed. Murphy also allegedly continued to air his contention that his copyright was being infringed throughout this time. Effie Film accordingly moved to amend its complaint to reflect these changed circumstances. The court denied Murphy's motion to dismiss and granted Effie Film's motion for leave to amend its complaint on March 6, 2012.

Effie Film filed its amended complaint the next day, on March 7, 2012, which Murphy answered on March 27, 2012. Effie Film then filed this Motion for Judgment on the Pleadings on May 29, 2012.

The Pleadings

The following facts and allegations are drawn from the pleadings, the works incorporated by those pleadings, as well as a number of historical facts of which the court takes judicial notice.

The Controversy

The amended complaint seeks a declaration that the revised November 2011 " Effie" screenplay, and the movie made from that screenplay, do not infringe Murphy's copyrights in " The Countess." That revision of the script, the complaint alleges, is the final " shooting script" that was used in shooting the film and, though some dialogue may be added or removed at the margins during the editing process, the film will not deviate from the shooting script in any substantial way. While Effie Film has furnished the court with a copy of the shooting script, it has not provided a copy of the film. It seems safe to suppose that this is because the film is not yet complete.

But the complaint alleges that starting in 2009, when Murphy became aware of the " Effie" screenplay, Murphy has insisted that " Effie" is based upon his work in " The Countess." He made these assertions to Effie Film and to Thompson directly, he has made them through one of his associates, and he has made them in letters from his attorneys.

The complaint also alleges that Murphy has taken up this cause in the news media.

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On April 24, 2011, Murphy published a lengthy account in the Daily Mail Online entitled " The Day I Sat in Emma Thompson's Kitchen and Accused Her of Stealing my Movie." The title sums up the substance of the piece nicely.

The complaint alleges that, on May 14, 2011, an article appeared in the New York Post about this lawsuit which quoted Murphy as saying that " Effie" " follows the exact same time frame, has an identical tone and contains plot elements and character developments directly traceable to 'The Countess'."

The complaint alleges that, on October 30, 2011, an article appeared in the Daily Telegraph, also about this lawsuit, that quoted Murphy as saying that Effie Film's going ahead with shooting the film " shows contempt for the legal process" and indicated that Murphy would not rule out seeking an injunction to halt the film's distribution.

Finally, on December 26, 2011 the complaint alleges that Murphy made a post on Facebook alleging that " Effie" is based on " The Countess."

The result of these accusations, the complaint suggests, is that Effie Film will have difficulty distributing, marketing, and ultimately exhibiting the film. Given the current climate, distributors and other companies would have to face the risk of legal action -- including an injunction against distribution of the film, as suggested in the Daily Telegraph article -- if they agreed to participate in the distribution or promotion of " Effie."

It should be noted, however, that Effie Film's original complaint made similar contentions regarding its ability to secure financing and produce the film under the threat of litigation from Murphy. But financing was, in fact, secured and production of the movie has continued, seemingly unimpaired.

Historical Background

Both " Effie" and " The Countess" present fictionalized accounts of the same historical events. Therefore, it is necessary to review the historical episode that both works draw from. The court should not attempt to record every historical detail that appears in " Effie" or " The Countess." Such an effort is unnecessary and, in any event, probably doomed to fail. But it will be impossible to gauge the creative similarities of the works without some grasp of the historical narrative.

John Ruskin was a preeminent art critic of the Victorian era. His renown has stemmed, in part, from his notable defense and nurturing (both theoretical and financial) of the Pre-Raphaelite Brotherhood. To oversimplify, the Pre-Raphaelites, with Ruskin, were united in their belief that the highest purpose of art was to celebrate nature. The Pre-Raphaelites rejected the emphasis on elegance and artificial " beauty" which, they supposed, were a result of Raphael's enduring influence on subsequent art and art criticism -- hence the label " Pre-Raphaelite."

John Ruskin's father was acquainted with Effie Gray's parents who encouraged a match between their daughter and his son. The two met at an early age -- he wrote the novel The King and the Golden River for her when she was twelve years old.

Eventually the couple married. But, infamously, the marriage was never consummated. Effie wrote that John had " imagined women were quite different to what he saw I was, and that the reason he did not make me his Wife was because he was disgusted with my person." John, for his part, stated that, though Effie was considered a great beauty " her person was not formed to excite passion. On the contrary, there were certain circumstances in her person which completely checked it."

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Though not a matter of " historical fact," of course, the irony is obvious: John, evangelist for the artistic appreciation of the imperfections of nature, could not abide the natural appearance of his own wife.

This first encounter portended years of unhappiness to come for Effie. Their marriage would be characterized by John's continuing neglect of her and, by some accounts, his intentional attempts to soil her reputation by leaving her alone with other men. And over time John's disposition towards Effie matured into cruel hostility. He warned Effie that he would " break" her. He remarked to others that he could be rid of Effie whenever he wanted. He began to compile " evidence" of Effie's insanity so he could have her locked away whenever he wished to be rid of her.

Shortly after their wedding the couple travelled to Venice. John devoted his time there to researching his book The Stones of Venice. This left Effie to go out in Venetian society on her own where, evidently, she was very well received.

Upon returning to England, however, life became rather more grim. The couple moved into a home in Camberwell, in the suburbs of London. Their home was only a half-mile from the home of John's parents at Denmark Hill, whose over-protectiveness of John Effie came greatly to resent. Mr. Ruskin, John's father, in particular took to writing Mr. Gray, Effie's father, to constantly criticize Effie's behavior towards John and the Ruskins. The Ruskins supposedly resented Effie for being neither of high enough social status to be worthy of their boy John, nor meek enough to shrink out of the way of their big plans for him. Mr. Gray passed these criticisms along to his daughter with the result that Effie found the Ruskins' emanating influence totally oppressive.

It eventually came to pass that Effie and John, as well as John's servant Crawley, left Camberwell for a summer retreat in Scotland at Glenfinlas in the Trossachs. They were accompanied by John's close friend, the Pre-Raphaelite John Everett Millais. Millais was to use this trip to paint a portrait of John that would, they hoped, revolutionize both British portraiture and landscaping painting. Though this painting, naturally entitled " John Ruskin," may not have had the historic impact that John and Millais had hoped, it remains a Pre-Raphaelite work of some note.

This four-month sojourn proved to be a turning point. At Glenfinlas John remained absorbed in his own work and oblivious to his wife. Effie, meanwhile, began to sit as a model for Millais and a romantic bond formed between them. Both, it seems, began to wonder whether there might be a way for Effie to escape her loveless marriage to John. Millais' correspondingly cooled to John as he observed John's callous attitude towards his wife. By the time the group left Scotland, Millais could hardly stand to be in the same room as John.

After their return from Scotland John and Effie's relationship continued to deteriorate, and both Millais and Effie began to lay the groundwork for cutting ties with John. For Millais, this meant completing the detail work on John's portrait and finally handing over the finished work. But for Effie the situation was much more delicate. She began communicating with Lady Eastlake, a friend she had made through John's connection with the National Gallery in London. Lady Eastlake nee Elizabeth Rigby was apparently a woman ahead of her time -- she was a prolific writer and keen art critic, the first regular female contributor to the Quarterly Review, and a crucial champion in Effie's bid to free herself from John.

Eventually, Effie confided to Lady Eastlake that her marriage to John had never

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been consummated and Effie's path to liberation became clear. Lady Eastlake began to make both the necessary legal inquiries to have Effie's marriage to John annulled and the social maneuvers to ensure that, if Effie were to leave John, she could do so with her reputation and standing unscathed.

With the help of Lady Eastlake and Crawley, who had become attached to Effie and who Effie evidently trusted a great deal, a plan was put into motion. Effie made visits to a doctor and to the Doctor's Commons (in this latter case " doctor" actually refers to civil lawyers) where she was subjected to physical examination and questioning to confirm her virginity. Effie and her parents agreed that she would then tell John that she would be making a routine visit to her parents. What Effie did not tell him is that she would never be coming back. After Effie departed but before John's coming trip to Switzerland, John was served with a notice that his marriage was to be annulled.

Now free, Effie would eventually marry Millais, though not before waiting six months to see him. John would go on to court the then-teenaged Rose la Touche. La Touche, however, denied him and when she died at the age of 27 John was driven to insanity. John's relationship with La Touche eventually played a role in inspiring Vladimir Nabokov's great work, Lolita.

" Effie"

" Effie" begins its telling of Effie Gray's story at the end: it opens with a brief, enigmatic, sequence that the viewer would eventually come to understand depicted Effie's examination for virginity.

It then quickly moves back to the beginning of the story, with John and an eleven-year-old Effie admiring Bernini's " Apollo and Daphne." The two discuss the Daphne myth, drawn from Ovid's Metamorphosis, in which Daphne escapes Apollo's advances by turning into a laurel tree. This scene establishes the metaphorical identity between Daphne and Effie which, in turn, provides the film's central irony and its central theme: John's aesthetic ideology, that art should capture nature faithfully, flaws and all, does not extend to his regard for women -- women remain significant only as vehicles for his idealizations (an attitude that, if women were literal works of art, one might call Hyper-Raphaelite). The association between Daphne and Effie, renewed throughout the screenplay when Effie is most oppressed, emphasizes the connection John's resentment to the reality of Effie as a woman and human--just as Daphne's reversion to nature " destroyed her beauty" (See Ovid, Metamorphoses, I.546), it is Effie's ineradicable natural reality that so repels John. The difference, of course, is that Daphne sought this form of obliteration.

The screenplay then quickly moves through the wedding preparations and some brief scenes to establish John's status as a prominent art critic and promoter of the Pre-Raphaelite brotherhood. It also moves quickly through the now ill-omened wedding to linger on the new couple's ersatz honeymoon at Denmark Hill. There, John's coldness towards Effie gains a Freudian dimension when the viewer is introduced to John's smothering mother. Here the screenplay takes its time -- approximately seven pages[2] of dialogue -- to amply illustrate Effie's immediate isolation

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by the Ruskin family and, in particular, Mrs. Ruskin who seems intent on blocking any influence Effie might have held over John or herself. John's father is also introduced as well as John's servant George and Anna the lady's maid.

Inevitably the wedding night arrives. The viewer sees Effie beginning to disrobe and hears John say " you are perfect" but that is all. The next shot is of the couple in bed but John is asleep and Effie is silently crying. And that is all.

The film then proceeds to the next morning where it begins another extended look at Effie's daily life with the Ruskins. In both " Effie" and " The Countess" the couple never moves out of Denmark Hill as the historical Effie and John did six months after their wedding. Over sixteen pages Effie is shown continually looking for something to occupy herself but, at every turn, she is defeated. Accordingly, Effie's discontent with her situation grows and her relationship with Mrs. Ruskin grows increasingly bitter. Eventually Effie is relieved to think that she has finally found something meaningful to do: she will make herself a dress for the upcoming Royal Academy Dinner. When the night of the dinner arrives, Effie makes a dramatic entrance in the Ruskins' entrance hall, beaming, wearing an intensely pink frock. But the Ruskins are appalled and the film then pointedly cuts to the Royal Academy Dinner where Effie sits white-faced in a somber evening outfit.

At the Royal Academy dinner, the viewer is first introduced to Millais and Lady Eastlake. John is shown eloquently defending Millais and the Pre-Raphaelites against critics in the Academy and before the Academy's president, reiterating his and the Pre-Raphaelites' philosophy that honesty in depicting God's creation is more important than beauty. Effie interjects with a pointed question -- " Do you think their painting pleases God?" -- and attracts the attention of Lady Eastlake, who asks that she and her husband Charles, the Academy president, be invited to dinner.

Effie and the film then return to Denmark Hill. John is immediately engulfed by his mother at the slightest sign of a cough and Effie informs the Ruskins, to their shock, that the Eastlakes will be coming to dinner. The ensuing scenes depict the frantic preparations for the Eastlakes' arrival -- new china is ordered and, when it does not perfectly match the walls, Mrs. Ruskin considers repainting. During the ...

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