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De Becdelievre v. Anastasia Musical LLC

United States District Court, S.D. New York

April 2, 2018

JEAN-ETIENNE DE BECDELIEVRE and TAMS-WITMARK MUSIC LIBRARY, INC., Plaintiffs,
v.
ANASTASIA MUSICAL LLC and TERRENCE McNALLY, Defendants.

          OPINION AND ORDER DENYING SUMMARY JUDGMENT

          ALVIN K. HELLERSTEIN United States District Judge.

         This 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.

         Background

         A. Procedural History

         This 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.[1]

         On 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 follows:

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.

         Order, ECF 16

         On 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.

         In the 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.

         In 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 substantially similar.

         B. Licensing History

         This 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.

         As 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.[2] 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.

         Consistent 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.

         The record shows that McNally and his partners were aware of this licensing history when they began developing the Musical.[3] 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.

         C. Historical Record

         As 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.

         The 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 frauds.

         Perhaps 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. G.[4] 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 II.

         Up to 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.[5] 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.

         As part 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.[6] This point is particularly important, for both the Play and Musical depict a scene in which the ...


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