United States District Court, S.D. New York
JEAN-ETIENNE DE BECDELIEVRE and TAMS-WITMARK MUSIC LIBRARY, INC., Plaintiffs,
ANASTASIA MUSICAL LLC and TERRENCE McNALLY, Defendants.
OPINION AND ORDER DENYING SUMMARY JUDGMENT
K. HELLERSTEIN United States District Judge.
case concerns a copyright dispute involving Anastasia, the
classic Russian tale adapted into a play, film, and now a
musical. While the original story is drawn from a skeleton of
historical facts, Plaintiffs Jean-Etienne de Becdelievre and
Tarns-Witmark Music Library, Inc. ("Plaintiffs")
hold the copyright to the fictionalized play (the
"Play") written in the 1940s by Marcelle Maurette,
a French playwright, and adapted to English in 1952 by Guy
Bolton. Recently, defendant Terrance McNally wrote a musical
version of the story (the "Musical"), also entitled
Anastasia, that premiered on Broadway in April of 2017.
Defendants McNally and Anastasia Musical LLC
("Defendants") now move for summary judgment,
arguing that the two works-the Play and Musical-are not
substantially similar. For the reasons discussed herein,
defendants' motion for summary judgment is denied.
case presents a relatively simple copyright dispute, but one
that is complicated by a lengthy historical record.
Jean-Etienne de Becdelievre is the sole owner of the
copyright interests held by Marcelle Maurette, the French
author and playwright who authored the original Anastasia
play; Tarns Witmark is the successor-in-interest to Guy
Bolton, who adapted the French version of the Play to
English. Together, they filed this claim for copyright
infringement on December 8, 2016.
January 23, 2017, defendants filed a motion to dismiss to
complaint, largely on the same basis as the instant motion.
See Memorandum of Law, ECF 14. On January 24, the next day, I
entered an order denying the motion to dismiss, holding as
Defendants' motion asks me to dismiss a claim for
copyright infringement by comparing the copyrighted work to
facts that are alleged to be historical, to another play
based on the same facts, and to a current work that is said
to be infringed. Defendants' motion, filed pursuant to
Rule 12(b)(6), asks me to make this comparison before Answers
are filed, and without guidance by experts. I am unable to
make such a complicated comparison. In order to do so, I
would need to take judicial notice of facts said to be
historical - an inappropriate exercise. I would also have to
analyze similarities and differences among different literary
expressions. The complaint is well-pleaded, and not
dismissable on motion. A Rule 12(b)(6) motion is
inappropriate, and is denied.
April 4, 2017, following a status conference, I ordered that
the case would proceed into discovery, "limited solely
to the issue of how the allegedly infringing work was
created." Procedural Order, ECF 20, at 1. The parties
did so, principally by taking the deposition of McNally, the
author and playwright of the non-musical portions of the
Musical. See Declaration of Dale M. Cendali, ECF 39, Ex. N.
Procedural Order, I also instructed plaintiffs to submit an
annotated version of the Musical's script, along with a
memorandum identifying "what in plaintiffs work is being
infringed." Procedural Order, ECF 20, at 1. Plaintiffs
did so on September 19, 2017, see Submission, ECF 30, Ex. 1
(hereinafter "Plaintiffs' Submission"),
highlighting various elements of the plot, characters,
specific scenes, themes, and sections of dialog that they
claim were appropriated from the Play.
response to plaintiffs' Submission, defendants filed the
instant motion for summary judgment on November 21, 2017,
again claiming that the Play and Musical are not
dispute is best understood against the backdrop of licensing
agreements dating back to the Play's creation. Although
this history does not directly answer the question at issue
in this motion-whether the two works are substantially
similar-the creative lineage of the two works helps to place
this dispute in context.
noted above, the French version of the Play was written by
Marcelle Maurette, and was later registered with the U.S.
copyright office in 1948. See Declaration of Matthew H.
Giger, ECF 52, Ex. E, at ¶ B. The Play was later
translated into English by Guy Bolton in the early 1950s, and
the English version of the Play was registered for U.S.
copyright protection in 1952. See Declaration of Matthew H.
Giger, ECF 52, Ex. E, at ¶ D. In 1955, Maurette and Bolton
entered into a licensing agreement with Twentieth-Century Fox
Studios ("Fox"), granting Fox the creative rights
to develop a film version of the Play ("Film
License"). See Declaration of Matthew H. Giger, ECF 52,
Ex. G. While the Film License allowed Fox to develop motion
picture adaptations of the Play, it explicitly reserved any
"rights to the production on the spoken stage, "
which were retained by Maurette and Bolton. See Declaration
of Matthew H. Giger, ECF 52, Ex. G, at 11.
with the terms of the Film License, Fox developed and
released a film entitled "Anastasia" in 1956,
garnering an Academy Award for Ingrid Bergman, the actress
who played the Anna/Anastasia character. Based on the success
of the first film, Fox exercised an option to extend the
"Motion Picture Rights" to the Play in 1963, and
did so again in 1993, incorporating by reference the
agreement that Maurette and Bolton retained the stage rights
to the Play. See Declaration of Matthew H. Giger, ECF 52, Ex.
E. Based on the 1993 extension, Fox developed an animated
version of "Anastasia, " which was released in
1997. Finally, the ice skating production "Anastasia on
Ice" was performed throughout the United States in 1998
and 1999, for which plaintiffs granted Fox a retroactive
license. See Declaration of Matthew H. Giger, ECF 52, Ex. H.
The retroactive license, granted as part of a settlement
agreement, again confirmed that plaintiffs retained "all
rights to present productions of the Play . . . upon the
spoken stage." Id. at ¶ B.
record shows that McNally and his partners were aware of this
licensing history when they began developing the
Musical. Before production began, McNally and his
partners obtained a license from Fox to use the creative
elements of the Films in the Musical adaptation
("Musical License"). See Declaration of Matthew H.
Giger, ECF 52, Ex. N. But the Musical License, to which
plaintiffs were not a party, specifically excluded stage
rights to the Play, which were still held by the
successors-in-interest to Maurette and Bolton. See
Declaration of Matthew H. Giger, ECF 52, Ex. N, at ¶
1(b) ("The warranties and representations made herein by
Owner apply only to the original literary material (and, with
respect to the Fox Songs, music and lyrics) contained in the
Property and do not relate to any other elements comprising
the Properly, including, without limitation, the
Maurette/Bolton Play .. .."). In fact, the Musical
License imposed on the Musical's production company the
obligation "to use all reasonable efforts to secure live
stage dramatico-musical rights in the Maurette/Bolton
Play." Id. at ¶ 2(i). It appears that the
parties attempted to negotiate such a license, but were
unable to reach an agreement. See Declaration of
Timothy O'Donnell, ECF 53, at ¶¶ 3-5.
explained in greater detail below, defendants' motion
requires the Court to consider whether the two works are
substantially similar, extracting from the analysis any
non-copyrightable historical facts. This section sets out
those historical facts, as presented by defendants through
exhibits and appendices summarizing the historical record.
Grand Duchess Anastasia Romanov, daughter of the Russian Tsar
Nicholas II, was born in 1901. In 1918, in the wave of the
communist revolution, the Tsar, his wife, and their children
were killed by revolutionaries. After the Tsar's family
was supposedly killed in Russia, rumors began to surface that
Anastasia, the Tsar's youngest daughter, had survived the
assassination attempt and fled to Europe. In part because the
Tsar had a small fortune stashed away in foreign banks, a
number of women came forward during this time claiming to be
Anastasia. Members of the Romanov family, who at this time
were living in exile in Western Europe, apparently met with
some of these women, ultimately denouncing all of them as
the most famous woman who claimed Anastasia's royal title
was Anna Anderson, whose story inspired Maurette to write the
original version Play. Some, including Guy Bolton, the
English author of the translated play, genuinely believed
that Anastasia, now known as Anna Anderson, escaped the
revolutionaries with the help of two brothers and members of
the Royal guard, using "jewels sewn in her clothes to
support them" on their journey to the West. See
Declaration of Joshua L. Simmons, ECF 44, Ex.
By all accounts, the real Anna Anderson suffered from severe
psychological issues, including amnesia, and was eventually
committed to the Dalldorf Asylum in Berlin after she
attempted to commit suicide by throwing herself into
Berlin's Landwehr Canal. According to the rumors, it was
at the asylum that she supposedly told one of the nuns that
she was actually Anastasia Romanov, daughter of Tsar Nicholas
this point, the historical record appears fairly clear, and
the parties do not dispute the basic contours of Anna
Anderson's story. What happened next is somewhat less
clear. It appears that Anna Anderson spent a number of years
attempting to convince the public and members of the royal
family of her parentage. Some documents suggest that Anna
Anderson met with certain members of the exiled royal family
during this period, including Anastasia's aunt, the Grand
Duchess Olga, and Princess Irene. See Memorandum of
Law, ECF 42, at ¶ 24-25. Upon meeting Anna Anderson,
Princess Irene apparently tested her with a series of
questions about her past and although their meeting was not
public, Princess Irene emerged believing that Anna Anderson
was not Anastasia. The family eventually declared that
"not a single member of [the Tsar's] family is still
alive, " effectively ending the family's official
search for Anastasia. See Declaration of Joshua L.
Simmons, ECF 44, Ex. H. Although Anna Anderson's story
was not ultimately accepted by the royal family, her
knowledge of Anastasia's past and her ability to convince
many that her claims were genuine is a common thread that
ties much of the historical record together.
of her quest to gain recognition, there is some indication
that Anna Anderson wanted to meet the Dowager Empress Maria
Fyodorovna, Anastasia's grandmother, who was living in
exile in Western Europe at the time. But, crucially, there is
no indication that such a meeting ever took place, apparently
because the Dowager Empress was quite old at this point.
Id. at A25. This point is particularly important, for
both the Play and Musical depict a scene in which the ...