<b>Decision of Note</b> Film Owner Can't Claim Copyright Protection for Actor's Multiple Roles

Granting the defendants' motion to dismiss, District Judge Richard J. Howell found that the film's “comedic adaption of the Novel is not protectable” and that the “setting is not protectible [sic] not only because it is historical but because it is also the setting of the Novel.” Judge Howell further noted: “Both works use one actor to play multiple roles, but under the discerning observer test, that device is not protectible. And however protectible a combination of elements might be under the total concept and feel test [for determining substantial similarity], the works do not have a similar feel. Canal+ would have the Court apply a kind of intermediate test that examines not the elements alone or the works in their entirety but only one aspect of those works: how the decision to portray characters in a story interacts with that story. At bottom, however, that inquiry merely asks how parts have been acted. As applied here, that amounts to an argument that Sir Alec Guinness's tour de force is protectible. But it is no more protectible than Charles Laughton's Henry VIII or Sir Laurence Olivier's Hamlet.”

Canal+ also alleged breach of contract, but Judge Howell decided that cause of action was preempted by the copyright law. District judges within the U.S. Court of Appeals for the Second Circuit, within which the Southern District resides, have expressed differing views on the contract-claim preemption issue. Judge Howell observed that “if the breach of contract claim is based on allegations that the parties' contract creates a right not existing under copyright law ' a right based upon a party's contractual promise [e.g., a promise to pay] ' and the plaintiff is suing to protect that contractual right, then the claim is not preempted.”