When 54 Sudanese refugees filed a lawsuit in February 2015 against the writers and producers of The Good Lie, a 2014 film starring Reese Witherspoon about those who survived starvation, disease and militia attacks in Darfur to make their way to America, we wrote at the time the dispute was “potentially groundbreaking.” Behold now a remarkable decision on Wednesday that could impact the way that research is conducted for feature films based on true stories.
The plaintiffs in the case came forward with edgy theories about why, when they sat down with screenwriter Margaret Nagle back in 2003 and shared their life stories, they were entitled to be deemed joint authors of the taped interviews. In their lawsuit against Alcon Entertainment (The Blind Side) and Ron Howard and Brian Grazer’s Imagine Entertainment, they also asserted a breach of a joint venture agreement, fraud and more stemming from the way they were promised compensation from a producer. Ultimately, if these refugees couldn’t get adequate compensation, they demanded an injunction on The Good Lie, alleged to be a derivative of the interviews and the screenplay they claim to co-own.
Injunctions are incredibly rare, and writers interview sources all the time. This couldn’t possibly work, could it? Guess what? U.S. District Judge Leigh Martin May has found that the plaintiffs have stated facts supporting a finding of copyright infringement and the entry of a permanent injunction.
There’s a wrinkle here, and it’s one that is provocative enough to be on a law school exam.
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The Sudanese refugees, who assigned their rights to an umbrella organization called the Foundation for Lost Boys and Girls of Sudan, wanted the judge to issue a declaration that they were indeed joint authors. The problem is that the Lost Boys don’t have copyright registrations on the taped interviews. After the film companies pushed for dismissal on this basis, the plaintiffs argued that the film companies should be equitable estopped from seeking dismissal because a failure to register was due solely to the other side’s refusal to provide a copy to them to deposit with the Copyright Office.
“While the Court appreciates the logic of Plaintiffs’ argument, they have not pointed to authority applying equitable estoppel to the registration requirement specifically,” writes May.
So the judge grants a motion to dismiss, but allows a refiling of the claim should they successfully register their copyrights in the future.
If it stopped here, Alcon would have gained a big victory on a technicality, but it doesn’t because Judge May next comes to the amazing conclusion that she may grant injunctive relief despite the Sudanese refugees inability to register for a copyright. And then the judge explores whether in fact the plaintiffs have asserted a viable infringement claim.
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Alcon argued that answers in an interview don’t possess the modicum of creativity to constitute an original work of authorship under copyright law.
“The Interviews, however, did not consist merely of ‘ideas, facts and opinion made during a conversation,’ like the interviews by journalists in the cases Defendants cite,” responds May. “Rather, the Interviews were a creative process designed to create material for a screenplay and film. All that an ‘original work’ must possess is ‘some minimal degree of creativity’ … even a slight amount will suffice. Plaintiffs’ telling of their personal stories in response to questions designed to elicit material to create a fictional script for a feature film likely includes enough creativity to render the Interviews an original work of authorship.”
OK, but Alcon also tried to argue that the taped interviews couldn’t be a “joint work” because there was no allegation of an intent to create one when the contributions were made.
That, writes the judge, “overlooks the allegations of the Complaint emphasizing the importance of contributions of all parties participating in the Interviews to the Screenplay and film to come.”
May also concludes, “Plaintiffs have stated a cognizable claim for protection against continuing infringement by Defendants that, if proven, warrants entry of a permanent injunction.”
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The Lost Boys, represented by attorney Jason Graham, rack up more victories. The judge determines that claims of unjust enrichment, quantum meruit (value for services rendered) and conversion of ideas aren’t preempted by the Copyright Act. The judge ruled that claims of an oral agreement concerning a joint venture were sufficient stated to survive a motion to dismiss. Likewise, the judge allowed a claim of fraud to proceed to cover the representations the film companies made in getting the refugees to share their life stories. Here’s the full ruling.
The only big victory for the defendants is dismissal of a claim for misappropriation of publicity rights under Georgia common law. Judge May basically concludes that personal stories aren’t the same as names and likenesses. “That these experiences were used in a work of fiction, not on merchandise or in a straightforward commercial appeal, further removes them from an appropriator’s archetypical effort to profit from Plaintiffs’ specific identities,” she writes.
The end result of all of this is that the Lost Boys can proceed with discovery, and the stakes of the case go up with both sides collecting evidence in advance of summary judgment motions and a potential trial. On the other hand, The Good Lie wasn’t a box-office blockbuster, with just $2.7 million in revenue worldwide. The case could be a strong candidate for settlement. If it does get to appeal, the issue of joint authorship of taped interviews will be worth watching.