Bit Parts

Anastasia was the youngest daughter of Russia's last imperial ruler. There had long been a mystery as to whether she survived the 1918 murder of her family during the communist revolution. The plaintiffs own the copyrights to a 1940s play about Anastasia by French playwright Marcelle Maurette and a 1952 English version by Guy Bolton. The defendants produced the Broadway musical Anastasia, written by co-defendant Terrance McNally. District Judge Alvin K. Hellerstein noted, “This case presents a relatively simple copyright dispute, but one that is complicated by a lengthy historical record.” The district court's ruling focused on a judge's role when defendants file a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure for “failure to state a claim upon which relief can be granted” in a copyright infringement case involving “a lengthy historical record.” District Judge Hellerstein explained that the defendants want “me to make this comparison [as to whether there is substantially similar between the musical and the plaintiffs' works] 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.” The district judge added: “But even accepting defendants' description of the historical record on its face and dismissing it from the analysis, the two works share significant commonalities not traced to any documented historical record.” The district court emphasized: “Defendants rely heavily on the fact that the Play and Musical are different in 'total concept and feel.' … True, one is a musical and one is a play, and the two works thus are of different genres. Also, the Musical is more comical, light-hearted, and set at a faster pace than the Play, which is slower, dramatic, and takes place largely in a single set. However, it is arguable that the 'total concept and feel' [test] differs materially beyond the fact that one is a musical and the other, a play.” And District Judge Hellerstein pointed to the Second Circuit's view that “[t]he total concept and feel test … is simply not helpful in analyzing works that, because of their different genres and media, must necessarily have a different concept and feel.”

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