The Second Circuit Court of Appeals has just reminded us of the power of the fact/expression distinction in copyright law, a distinction that benefits all authors trolling for inspiration.  In Effie Film, LLC v. Murphy, the New York based court examined the claim that a proposed Emma Thompson film about the marriage of Effie Gray and John Ruskin would infringe a screenplay covering the same subject matter.  The issue was not whether the film company had read the Murphy screenplay or even whether it was consulted as a resource.  The question was whether the film would appropriate Murphy’s own protected expression.  Since facts are utterly unprotected by copyright law, any filmmaker or author can feel free to consult any source whatsoever in the search for facts to portray in a new work.  As long as the Thompson film only takes historical facts from the Murphy screenplay, then no infringement will occur.  Appropriating made-up dialogue, on the other hand would be problematic.  It is nice to hear a court emphatically remind us that no one owns facts, and if two works resemble each other only because they have a lot of facts in common, there is still no infringement.

This case reminds me of the older case of Universal Studios v. Miller, where a film about a sensational kidnapping was based on an earlier written book.  When negotiations with the book’s author broke down, Universal made the film anyway.  In its opinion, later cited by the Supreme Court in the famous Feist case, the Fifth Circuit explained that taking relevant facts without permission was fair game.

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