Appeals Court Reminds Documentary Makers That Facts Are Not Copyrightable
from the and-again dept
Two years ago, we wrote about how a court had ruled against a documentary filmmaker who was upset that the producers of the Hollywood film We Are Marshall hadn’t paid them for the story. The documentary filmmakers had made a (what else?) documentary about the story of the football team at Marshall, where a plane crash killed the team, and then the school rebuilt its football program. The Warner Bros. film was about the same story, but as we pointed out at the time, facts aren’t copyrightable, and anyone can make a film based on historical facts. It is true that Hollywood studios often will pay for the “rights” to a story from a newspaper or author, even though they don’t need to secure the “rights” that way. They do so for a variety of reasons, such as getting more in-depth access to the writers for accuracy purposes or just for general endorsement. But there’s no legal requirement to do so.
The district court explained all of this to documentary filmmakers, but they appealed anyway, and now the appeals court has dumped the lawsuit as well, agreeing with the lower court, and explicitly pointing out you can’t copyright facts. Simply because you made a documentary about a historical story, it doesn’t give you ownership of that story. On top of that, it points out that there really aren’t very many similarities between the stories, other than they’re both based on the same historical situation, so there’s no copyright infringement claim at all. The documentary filmmakers also tried a “breach of contract” claim, because Warner Bros. had talked to them about licensing the “rights” to the documentary (again, even though there’s no legal reason to do so). But they never came to an agreement. And that’s why the breach of contract argument fails. There was no contract to breach.
It really is quite a statement on the “ownership of culture” ecosystem we’ve built up when some documentarians act as if making a documentary about a real historical story somehow gives them the rights to stop others from making a film about that story.
Filed Under: copyright, documentary, facts, we are marshall
Comments on “Appeals Court Reminds Documentary Makers That Facts Are Not Copyrightable”
Reasons
It is true that Hollywood studios often will pay for the “rights” to a story from a newspaper or author, even though they don’t need to secure the “rights” that way. They do so for a variety of reasons, such as getting more in-depth access to the writers for accuracy purposes or just for general endorsement.
and of course building up the general feeling that such “rights” need to be purchased – which they think could help them someday too.
Irony
I find this situation ironic because most times that documentary filmmakers are mentioned on TechDirt, it’s to describe the troubles they have with acquiring the rights to include copyrighted material. I can’t imagine that the makers of the documentary in question are too popular in the overall community of documentary filmmakers. If they would have won their appeal, it would have just made it all the more difficult for everyone else.
Re: Irony
in the same line of thinking; they could have been so frustrated that they figured they could reciprocate those troubles to the studios.
Re: Re: Irony
“in the same line of thinking; they could have been so frustrated that they figured they could reciprocate those troubles to the studios.”
Exactly. Documentary filmmakers get in trouble for recording facts all the time. E.g., the fact that The Simpsons was on the television in the background while recording an interview with some workers on a break. Why not flip that shit around?
It’s wrong-headed, of course, but I totally understand their ‘turnabout is fair play’ logic.
Documentary
The entitlement theory is correct, the citizenry are conditioned to think of suing them all. I dropped two documentary projects after years of research because the principle characters were demanding payment for an interview.
I try to think in terms of news-gathering, that is, the integrity would be compromised if payment was made. Even if a certain subject might be worthy of a fictional film, the odds of pitching a script successfully are vanishingly small and requires years of preparation. This barretry business is intimidating the writer.
Reminding ourselves, Mike, that copyright was intended to further the arts and sciences, it means that the writer needs to be free of the threat of lawsuits.
The sports movies in themselves are inspirational non-fiction genre. I am originally from SW Virginia, and know many people who went to Marshall. As well as the story of the football film The Spartans in Arlington. I have come into possession of a great basketball underdog team from 1937. I can decide to start packaging it or not. Every one of the principals is dead. Why should I be subject to chilling effects or being sued?
Re: Documentary
Why would anyone want to remind themselves of a popular delusion? At best it’s a pretext, but to keep on telling yourself a lie isn’t going to make copyright rise up one day to shake off its corruption to reveal shining white goodness beneath. Copyright was a privilege granted by the corrupt to the unscrupulous at the outset. From such an instrument of injustice you should not hope for more than a stream of counter-productive litigation. To expect either progress or justice is insane.
Guess the documentary didn’t do that well financially, so what else do you do to try to save face and stop bankruptcy. You sue.