Let's say you want to release a film based on true historical events. You claim the film is original and based on an original screenplay. Someone who wrote a stage play and screenplay based on the same events claims that you are infringing. What to do?
The makers of the film Effie Gray ran into that problem. Gregory Murphy, who'd written a stage play and a screenplay, claimed that Effie Gray infringed on his works titled The Countess.
The reality of the film business is that distributors won't distribute a film when there is a litigation threat pending. Many writing disputes are resolved through the Writer's Guild. But in this case the filmmakers chose the federal courts and won. On top of that, they persuaded the federal judge to award them half a million dollars in attorneys fees against Murphy.
In my book Copyright Litigation Handbook (Thomson Reuters West 2015-2016), I have a chapter devoted to declaratory judgment actions. A declaratory judgment action permits a copyright owner to have its rights declared in certain circumstances where a "case or controversy" has arisen. Declaratory judgment actions can be an effective way of clearing the path to publication of a copyrighted work, in this case, the distribution of a film.
In Effie Film, LLC v. Murphy, --- Fed. Appx. --- (2d Cir. 2015) the Second Circuit Court of Appeals considered the question of whether the U.S. district judge had committed legal error in awarding reasonable attorneys fees under Section 505 of the Copyright Act.
Copyright owners should recall that only persons who register copyrights with the Copyright Office are entitled to collect reasonable attorneys fees under Section 505.
In determining whether to award attorneys fees under Section 505, the Section Circuit requires district judges to consider the following:
1. the frivolousness of the non-prevailing party's claims or defenses;
2. the party's motivation;
3. whether the claims or defenses were objectively unreasonable; and
4. compensation and deterrence.
The Second Circuit requires that the question of "objective unreasonableness" be given substantial weight.
The Effie Gray litigation had previously been before the Second Circuit, where the plaintiff filmmaker prevailed. The Second Circuit affirmed the district court's decision by "summary order". The Second Circuit has a local rule relating to summary orders which characterizes such orders as non-precedential and requires that any citations identify the decisions as summary orders.
The district court in this case referred to the summary order as a "summary affirmance". As the Second Circuit explained, summary affirmances are used for the rare cases that are so meritless that they do not warrant consideration. The Second Circuit found that the district court had abused its discretion by assuming that the appeal was objectively unreasonable. Rather than remanding, the Second Circuit found no other grounds in the record for awarding attorneys fees against Murphy.
Read the Second Circuit's opinion on Effie Gray legal fees here.
Read the Second Circuit's first opinion granting "broad latitude" to producers of materials based on historical events here. Note that even though the matter was resolved at the pleadings stage, it took two years for the film producer to get a ruling from the court.
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Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
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