Online Extra: Effie Film LLC Loses Attorney Fees Bid After Winning Copyright Suit

Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York denied the Effie film production company's bid for attorney fees and costs in its declaratory action against author Eve Pomerance over the parties' scripts about relationships among three famous art-world figures. Effie Film LLC v. Pomerance, 11 Civ. 7087.

Judge Oetken had previously found no substantial similarity between the litigation parties' works. In his recent ruling, the district judge noted: '[T]he Court cannot conclude that Defendant acted unreasonably when she first indicated her copyright concerns to Plaintiff, thereby prompting Plaintiff to file a suit for declaratory judgment. Simply put, at that time, Defendant was not well positioned to predict how a court would approach copyright analysis in this case. Although the [court's earlier] Opinion concluded that there was virtually no substantial similarity between the Pomerance Works and the final version of the Effie screenplay, that conclusion rested on an effort to clarify existing doctrine. It also hinged in significant part on the exclusion of unprotectible historical facts and interpretations from the substantial similarity analysis ' a methodology that requires difficult judgment calls about the line between creative fictionalization and historical interpretation.'

Thus, Judge Oetken found, 'Given the scarce precedent in this field, it would not have been objectively unreasonable for Defendant to take a very different view of the degree to which the Original Effie Script infringed truly original content in the Pomerance Works.'

The district judge added that 'there is reason to believe that the Final Effie Script was modified, in part, to account for the very copyright issues at the heart of this litigation.'

Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York denied the Effie film production company's bid for attorney fees and costs in its declaratory action against author Eve Pomerance over the parties' scripts about relationships among three famous art-world figures. Effie Film LLC v. Pomerance, 11 Civ. 7087.

Judge Oetken had previously found no substantial similarity between the litigation parties' works. In his recent ruling, the district judge noted: '[T]he Court cannot conclude that Defendant acted unreasonably when she first indicated her copyright concerns to Plaintiff, thereby prompting Plaintiff to file a suit for declaratory judgment. Simply put, at that time, Defendant was not well positioned to predict how a court would approach copyright analysis in this case. Although the [court's earlier] Opinion concluded that there was virtually no substantial similarity between the Pomerance Works and the final version of the Effie screenplay, that conclusion rested on an effort to clarify existing doctrine. It also hinged in significant part on the exclusion of unprotectible historical facts and interpretations from the substantial similarity analysis ' a methodology that requires difficult judgment calls about the line between creative fictionalization and historical interpretation.'

Thus, Judge Oetken found, 'Given the scarce precedent in this field, it would not have been objectively unreasonable for Defendant to take a very different view of the degree to which the Original Effie Script infringed truly original content in the Pomerance Works.'

The district judge added that 'there is reason to believe that the Final Effie Script was modified, in part, to account for the very copyright issues at the heart of this litigation.'