By Danielle Ollero

Last October, our Blog discussed the legal woes of the hit Broadway musical Hamilton. It may come as no surprise that Hamilton is not the only show plagued by litigation.

Many of us may remember the animated film Anastasia released in 1997, with its melodious songs and heart-warming story of a girl in search of her forgotten family. What girl doesn’t dream of discovering that she is a lost princess? Lucky for us, on June 28, 2016 Playbill made the happy announcement that Tony-winning writer Terrance McNally and composers Lynn Ahrens and Stephen Flaherty were seeking to resurrect this childhood fantasy for live audiences as a new Broadway musical. However, a lawsuit may prevent Anastasia from ever becoming a theatrical reality.

At issue is the way in which McNally, Ahrens and Flaherty  wanted to reimagine the story, unveiling the plot in a manner closer to the historic life of Anastasia rather than the whimsical fantasy depicted in the film. One of the most noticeable changes would be the absence of the film’s villain Rasputin and his humorous talking bat sidekick, Bartok. Instead, new villains would be introduced through characters who represented the Communist Regime. What’s more, the group hoped to have several new songs added to the score. This new version premiered during the spring of 2016 at the Harford Stage in Connecticut.

On December 8, 2016 plaintiff Jean-Etienne de Becdelievre accused the writers of stealing their plot from a play written by playwright Marcelle Maurette in 1952. Becdelievre, heir to Maurette, alleged several copyright law violations in his complaint, and asked that the musical be barred from opening its doors on the planned date of April 24, 2017 at the Broadhurst Theatre. Of mention, he argued that Fox Animation Studies had a license to produce the 1997 film as an adaptation based on Maurette’s play. However, the musical is significantly different from the film version, with “multiple characters, plot lines, and other creative elements that are in the original play” and not in the film. Therefore, the limited film license does not cover the new musical and, arguably, the produces and writers have no license to produce the musical based off of the play.

In response, the producers, including Bill Taylor, called the lawsuit “wholly without merit,” arguing that a license is not necessary because the musical’s story is not taken from the previous play, but from “the historical story or the real-life Anastasia Romanov.” Based on this argument, they filed a motion to dismiss the case.

On January 24, 2017 New York Southern District Court Judge Alvin K. Hellerstein denied the motion to dismiss the case. Judge Hellerstein explained that the “motion asks me to dismiss a claim for copyright infringement by comparing the copyrighted work to facts that are alleged to be historical, to another play based on the same facts, and to a current work that is said to be infringed. Defendants’ motion . . . asks me to make this comparison 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.”

After Judge Hellerstein’s ruling, the defendants filed an answer to the complaint on February 7, 2017. Their attorneys said that they remained “confident” in their position to prevail on a substantive ruling.  “The works simply are not substantially similar,” said Dale M. Cendali, attorney representing Terrance McNally. “They have different settings, different characters, and different plots.  In fact, none of the dialogue is the same.  Any similarities are due to unprotectable historical facts or ideas.”

However, this ongoing battle probably means that the show is unlikely to meet its opening day, though its website still appears to be selling tickets. It will be fascinating to see the way that this case unfolds in its substantive legal questions, as well as for the life of the show. Perhaps this production team did not journey enough into the past when creating this historic musical.

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