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U.S. District Judge J. Paul Oetken denied Thompson's motion for attorney fees after previously ruling that “Effie,†based on the infamous marriage of Effie Gray and Victorian-era art critic John Ruskin, is substantially different than playwright Eve Pomerance's screenplays “The King of the Golden River†and “The Secret Trials of Effie Gray.â€Â
Before Pomerance brought her complaint, the law remained mostly unsettled regarding the proper copyright infringement analysis to use when analyzing two works of historical fiction, the ruling said. Determining what elements of Pomerance's screenplays were protected under the law, and which were excluded as historical facts, required “difficult judgment calls about the line between creative fictionalization and historical interpretation,†Judge Oetken wrote.
“Simply put, at that time, (Pomerance) was not well-positioned to predict how a court would approach copyright analysis in this case,†Judge Oetken said.
Thompson's film â€" which is set to be released in October and stars Thompson, actress Dakota Fanning and actor Robbie Coltrane â€" focuses on a 19th century love triangle between art critic John Ruskin, his wife Effie Gray and Gray's lover, John Everett Millais.
Effie Film LLC, which now holds the rights to Thompson's film, lodged the declaratory judgment suit in October 2011, after Pomerance's attorney had sent a letter claiming the film infringed copyrights on the playwright's two screenplays. EFL was seeking little more than $100,000 in attorney fees and expenses.
Pomerance, who filed copyright infringement counterclaims but later dropped them, said that “Effie†strays from history and uses dramatic devices â€" such as Millais' teaching the title character to draw, and an oedipal bond between Ruskin and his mother â€" that Pomerance initially came up with.
Judge Oetken pointed out Wednesday that Pomerance had a reasonable suspicion to believe Thompson was using her work. Pomerance knew that Gregory Wise, Emma Thompson's husband and occasional co-author, possessed a copy of her screenplays when he and Thompson researched the original “Effie†script.
The court also said there is reason to believe that EFL modified the final version of the “Effie†script to “account for the very copyright issues at the heart of this litigation.â€
Pomerance's attorney, Marc A. Lebowitz, said Thursday that his client is happy with the court's decision and hopes to move on from the litigation.
“We never believed this was an attorneys’ fees case, and Ms. Pomerance is glad to have this matter behind her.,†Lebowitz said. “She wishes Ms. Thompson the best of luck with her project.â€
An attorney representing EFL declined to comment.
EFL is represented by Andrew L. Deutsch of DLA Piper.
Pomerance is represented by Marc A. Lebowitz of Lebowitz Law Office LLC.
The case is Effie Film LLC v. Eve Pomerance, case number 1:11-cv-07087, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Scott Flaherty. Editing by Rebecca Flanagan.
http://www.law360.com/articles/435801/emma-thompson-denied-atty-fees-in-effie-copyright-spat
