Montreal- and Los Angeles-based production company Kingsborough Pictures is a plaintiff in a lawsuit against MCA/Universal City Studios and Miramax Film Corporation, alleging the defendants plagiarized the script The Dark Lady in the hit release Shakespeare in Love.

In 1986, Filmline International, of which producer Pieter Kroonenburg was then a principal, bought an option on the script The Dark Lady, written by Don Ethan Miller and Peter Hassinger. Set in 1600, the script’s fictitious plot line had William Shakespeare embarking on a brief affair with a woman who helps him write his latest play. Kroonenburg and partner Julie Allan pitched the idea to Universal executive Robert Sherwood, who took a pass, responding in a letter (dated Nov. 14, 1986), ‘I doubt general audiences could be persuaded to watch a movie about Shakespeare.’

Around 1990, Kingsborough Pictures, Kroonenburg’s new production house, acquired Filmline’s interest in The Dark Lady. According to court documents, Kingsborough sent subsequent drafts of the screenplay, rewritten by Peter Barnes, to Universal and other studios. In 1991, director Irvin Kershner (The Empire Strikes Back) agreed to direct the film. One year later, rights to Miller’s script reverted to him, and by 1998, rights to the Barnes rewrite were conveyed to Miller as well. With Miller’s consent, Kingsborough continued sending the script to interested third parties.

The writer credit for Shakespeare in Love is attributed in part to Marc Norman (Cutthroat Island), who had approached one of the film’s producers, Edward Zwick, with his own idea for a Shakespeare movie. Zwick and Norman approached Universal with that idea in 1990. Ultimately, Zwick and Universal felt the script was not strong enough, and so Universal asked Tom Stoppard (Rosencrantz and Guildenstern Are Dead) to perform a rewrite. Part of the plaintiffs’ case is based on the fact that Universal executives who sat in on those story meetings had previously received the script for The Dark Lady.

In 1992, Universal Pictures and Bedford Falls Productions (Zwick’s company) announced they were proceeding with Shakespeare in Love. Miller, Hassinger, Filmline and Kingsborough, having read a draft of Shakespeare in Love and believing it bore many similarities to their script, had lawyers send a cease and desist letter to Universal demanding that it, Norman and Zwick halt the project. Three months later, Universal attorneys responded that the studio was not proceeding with the film and thus the claims against it, which it did not acknowledge, were moot. The studio’s decision not to go forward with the film at that time came after slated star Julia Roberts dropped out of the project.

In 1996, Miramax purchased an interest in the dormant script, and Shakespeare in Love went to camera with Miramax and Universal on board in March 1998, starring Gwyneth Paltrow and Joseph Fiennes. Kroonenburg says that he did not initiate action against the production at that time as he was in Kenya producing the Genie-nominated To Walk with Lions.

‘I only heard about it when they were in the third or fourth week of production in England,’ Kroonenburg says from L.A. ‘I was totally convinced they must have changed it radically, that it was a totally different story, because how could anybody, after having been warned and having received a very detailed lawyers’ letter, still do it?’

Shakespeare in Love was released domestically Dec. 11, 1998 and went on to win seven Academy Awards, including best picture and screenplay written directly for the screen. According to Universal, the film grossed US$100.3 million domestically and US$185 million overseas. The plaintiffs filed their action against the studios in August 1999.

On behalf of the plaintiffs, Lew Hunter, cochair of UCLA’s screenwriting program, has identified various similarities in the scripts for The Dark Lady and Shakespeare in Love. Meanwhile, counsel for Universal hired University of Southern California English professor Leo Braudy in 1992 to compare the studio’s coverage of The Dark Lady with the then-latest draft of Shakespeare in Love, concluding that the latter did not copy from the former.

The defendants filed a motion in January 2001 for summary judgment of the case, which was decided in September by U.S. District Judge Dean D. Pregerson. Pregerson concluded that, although The Dark Lady is more sober in tone, ‘a reasonable jury could find that Shakespeare in Love is substantially similar to protected elements of The Dark Lady.’ The court also found it reasonable to suggest that the makers of Shakespeare in Love had access to a 1991 draft of The Dark Lady, and that the question of plagiarism is appropriate.

Although the court found Miramax not responsible for interference with contractual relations allegations against it, other counts will go before a jury in August. Allegations are copyright infringement and breach of implied-in-fact contract, the latter excluding Miramax.

‘If there is a settlement of any interest we will consider it, but right now we will proceed to go to trial as planned,’ Kroonenburg says.

Jeff Sakson, senior VP of national publicity for Universal Pictures in L.A., would only say the studio’s lawyers ‘feel the suit is without merit.’

Matthew Hiltzik, VP corporate communications for Miramax Films in New York, says that the company is ‘confident we will win this case on the merits.’

A source on the side of the defense acknowledges that discussions between the two sides are ongoing in advance of the trial date.