Inside “Fleetwood Mac Play” Stereophonic’s Copyright Infringement Lawsuit
Stereophonic made history as the most Tony Award-nominated play of all time in the 2024 Tony Awards, ultimately winning Best Play among other awards.[1] Set in the 1970s, Stereophonic follows an emerging rock band as they create a new album.[2]
However, not all of Stereophonic’s reception was positive. On October 1st and after Stereophonic’s big win at the Tony Awards, former Fleetwood Mac sound engineer, Ken Caillat, filed a lawsuit in Southern District of New York against the play’s creatives and other associated parties.[3] The lawsuit highlights the similarities between the play and a memoir authored by Caillat and Steven Stiefel on the making of Fleetwood Mac’s Rumours album.[4] Notably, the play’s characters share a similar composition to the members of Fleetwood Mac: three British and two American band members with genders and band roles matching their Fleetwood Mac counterparts.[5] Not only does the lawsuit describe several of Stereophonic’s scenes that track passages from the memoir, it also claims the play’s presentation of bringing audience members in the control room of a recording studio mirrors the memoir.[6] Further, Caillat and his co-author deliberately wrote the memoir from the perspective of Caillat as the sound engineer at the time.[7] In an interview, Adjimi described Stereophonic’s sound engineer character as the “stealth protagonist of the play,” paralleling the point of view of the memoir.[8]
For avid theater fans, this should come as no surprise—Stereophonic has been touted as the unofficial Fleetwood Mac play since its opening night. Critics frequently mentioned the play’s obvious similarities with Fleetwood Mac.[9] As the lawsuit mentions, one critic even notes, rather bluntly, “This new play from Adjimi isn’t literally about Fleetwood Mac, but c’mon. It is, in all but name, the Fleetwood Mac play.”[10]
The lawsuit’s sole cause of action is copyright infringement.[11] To establish copyright infringement, Caillat will need to demonstrate two elements: (1) an ownership of a valid copyright and (2) the copying of “constituent elements of the work that are original.”[12] To the second element, a plaintiff must show that (1) the defendant had access to the copyrighted work, and (2) there is “substantial similarity of protectable material” between the works.[13]
Copyright infringement claims involving historical fiction have added complexities. Because there is value in keeping history as common property for all, Hoehling v. Universal City Studios (2d Cir. 1980) held that the scope of copyright protections for historical accounts is narrow, protecting no more than the “author’s original expression of particular facts and theories…”[14] However, according to the Seventh Circuit, this language may be diminishing the value of investigating historical facts and creating an economic disincentive to produce historical works.[15] Further, the Second Circuit may also be understating the originality that goes into the presentation of historical facts.[16] Despite this criticism, the Second Circuit insisted on its narrow construction of protections for historical works in Effie Film v. Murphy (2d Cir. 2014).[17]
Given that Hoehling is the guiding framework for the Second Circuit, several District Courts dissect historical works and separate out protectable, expressive choices and historical facts for a more narrow, substantial similarity analysis.[18] Additionally, some courts find guidance in whether the author’s intention was to create an “actual account of events.”[19] Some elements of historical fiction may fall within the narrow scope articulated by the Second Circuit, as opposed to other historical works that focus on historical accuracy.[20]
The narrow copyright protections historical works receive may hinder Caillet’s case against Stereophonic and its creatives. We should expect Stereophonic to argue that Caillet’s complaint focuses on substantial similarities between historical facts and not expression or originality. Certain similarities such as the gender and ethnic makeup of Fleetwood Mac compared to the makeup of the band in Stereophonic seem to be in the domain of non-protectible historical fact.[21] As for the dialogue and scene similarities, there will likely be some dispute on whether Caillet intended these scenes to track actual historical events or contained fictional elements.[22] If the former, there is an argument that these are non-protectible historical fact. However, Stereophonic may have a tougher argument in parts of the complaint allegedly the copying of Caillat’s perspective as a sound engineer. The expressive and artistic choices relating to point of view and choosing particularly a sound engineer as the protagonist of the narrative may be closer to expression than historical fact.[23]
While some consider Stereophonic the “Fleetwood Mac” play, it is important to note the critical issue here is not whether Stereophonic copies the story of Fleetwood Mac’s rise to fame, but rather if Stereophonic copies the band’s rise as expressed by Caillat and Stiefel’s memoir. As days count down until Stereophonic files their answer, we should soon see some of these lyrical motifs and riffs of historical work copyright law to a 1970s rock tune.
UPDATE: Since the writing of this article, the parties announced they entered into a settlement agreement for the above matter.[24]
Footnotes
