In 1908, Anne of Green Gables was published and it launched the literary career of Lucy Maud Montgomery. The book recounts the adventures of Anne Shirley, an 11 year old orphan girl who is mistakenly sent to two middle-aged siblings, who had originally intended to adopt a boy to help them on their farm. The story recounts how Anne makes her way through life. The book has been adapted into films, musicals, plays, and even television series.
In fact, Kevin Sullivan produced the popular television version in the 1980s. Sullivan applied for and obtained copyright protection in respect of the television mini-series.
Sullivan is now in a copyright legal battle with the folks behind the most recent incarnation of the story, a series produced by Northwood Media Inc. called Anne with an "E", now available on Netflix.
Sullivan claims that the folks behind Anne with an "E" have infringed his intellectual property rights by copying certain elements of his series, elements that were not in the original story. For example, Sullivan alleges that the Netflix series copied his decision to set the story in the late 1890s instead of in the 1870s as in the original Anne of Green Gables novel (by the way, the copyright protection for the original Anne of Green Gables has now lapsed.)
The issues in this lawsuit are very interesting because Sullivan's allegation is not that the Netflix series literally copied his series, but that they have copied settings and concepts from his series. The court will have to consider what is the applicable permissible range for the use of concepts, settings, and images developed for Sullivan's series in the more recently produced Anne with an "E" series.
The question of whether there has been copying to amount to infringement depends on whether the alleged copied features, concepts, or settings constitute a substantial part of Sullivan's series, and not the Anne with an "E" series. For example, does the 1890s setting constitute a substantial part of Sullivan's series?
The lawsuit is in its early stages and the parties are currently in a dispute over procedures relating to documentary discovery.
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