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IP/Entertainment Case Law Updates

Novak, et al. v. Warner Bros. Pictures LLC, et al.

Plaintiffs created a documentary, Ashes to Glory, The Tragedy and Triumph of Marshall Football, that tells the story of the 1970 plane crash that took the lives of most of the Marshall University football team. Defendants watched plaintiffs’ documentary and contacted them about securing the rights to the story. The parties negotiated for several months, but did not agree on compensation or credit issues, and no agreement was ever signed. Defendants later produced the movie We Are Marshall, a fictionalized account of the same story. Plaintiffs sued for copyright infringement and breach of implied or express contract.

The court held, on summary judgment, that defendants’ movie did not infringe plaintiffs’ copyright in their documentary. The court also held that, while the parties had negotiated for rights, they did not reach an express agreement, nor was there an implied contract for defendants to purchase plaintiffs’ rights in the documentary.

At the outset of its analysis, the court rejected the “inverse ratio rule” proposed by plaintiffs, which provides that the more proof there is of a defendant’s direct access to plaintiff’s work, the less of a showing of similarities will be needed to establish liability. Defendants admitted they watched plaintiffs’ documentary while developing their movie, and plaintiffs argued that defendants’ access to their work lowers the standard of proof required to show substantial similarity. The court noted that the “inverse ratio rule” has been rejected by the Ninth Circuit, which held “no amount of proof of access will suffice to show copying if there are not similarities.”

The court explained that because plaintiffs’ documentary is historical, the only protection available to plaintiffs is in their presentation of historical events, “by which the Court refers to the sequencing, pace, narration, and selection of footage, photographs, events and individuals portrayed – but not the events themselves.” The court held that, while defendants’ movie and plaintiffs’ documentary tell the same basic story based on the same historical events, the two works were not “substantially similar” because the only similarities between the works arose from their common use of unprotectible historical facts. “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.”

Regarding the breach of contract claim, the court held that the parties negotiated but never reached agreement on a contract: neither the Option and Consulting Agreement nor the Option Short Form were signed by the parties and plaintiffs’ agent attempted to sell the Marshall story to other production companies after negotiations with defendants failed. The court also held that there was no Desny implied contract claim because such a claim is premised upon the implied promise to pay for the services of conveying the idea, and here defendants had plaintiffs’ work before they even approached the plaintiffs.

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