"We Are Marshall" Did Not Infringe Documentary's Copyright
This is an update to my post about the lawsuit filed in June 2007 by two documentary film makers from Huntington, West Virginia against Warner Bros. Pictures and other defendants, which alleged that their documentary, "Ashes to Glory" was unfairly used in the movie "We Are Marshall."
Deborah Novak and John Witek alleged 24 specific similarities between their work and the movie. They sued for copyright infringement, breach of contract, fraud, and unfair trade practices.
The United States District Court for the Central District of California disagreed, though, and on October 20, granted the defendants' motion for summary judgment against all of the plaintiffs' claims. Novak v. Warner Bros. Pictures LLC, Civil Action No. 07-CV-04000 (C. D. Cal. 2007).
Judge Gary Alan Feess concluded that the plaintiffs were unable to prove that the two works are "substantially similar," which is required in order to establish a claim for copyright infringement:
Though the two works tell the story of the November 14, 1970 air plane crash, that event, and the events that preceded and followed, are all matters of public record which cannot be copyrighted. Copyright protects only an author's original expression and not historical facts or events which means, as noted by the Supreme Court that "the fact/expression dichotomy limits severely the scope of protection in fact-based works." Feist Publications, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 340 (1991). Here, Plaintiffs have created and produced a fact-based narrative that recounts, in an historically accurate way, what happened before and after the 1970 air plane crash. Defendants, on the other hand, have produced a dramatic recreation of the events that, though based on the historical record including the documentary, does not appropriate Plaintiffs' expressive elements and makes no pretense of being historically accurate. Thus, even though the two works have the same story as their subject, they are not "substantially similar" as that phrase is used in copyright jurisprudence.
The court also rejected the plaintiffs' breach of contract claim, on the grounds that after failing to reach an agreement with Thunder Road Film Productions for an option or purchase of the rights to "Ashes to Glory," the plaintiffs contacted other production companies. The court reasoned that if the plaintiffs knew they didn't have an agreement with Thunder Road, "plaintiffs cannot now, with the success of 'We Are Marshall' itself an historical fact, revive a claim that they never believed they had in the first place."
In order to establish whether the two works are substantially similar, the court engaged in a very thorough comparison of their styles of presentation, content, characters, and plot. But simply because the producers of "We Are Marshall" were aware of and had seen "Ashes to Glory" does mean that the defendants infringed on the plaintiffs' copyright or breached an implied contract.
Here are posts from The Hollywood Reporter, Esq. Blog and the Movie Blog, both of which conclude that Judge Feess got it right.
