11:44am PT by Eriq Gardner
How a Film About Sudanese Genocide Could Impact Filmmakers and Journalists
Fifty-four Sudanese refugees survived starvation, disease and militia attacks in Darfur to make their way to America. Now they face an attempt to kill the their lawsuit against writers and producers of The Good Lie, a 2014 film starring Reese Witherspoon.
The refugees filed their claims in February and brought forward some edgy theories about why they should be compensated after an alleged re-telling of their life stories. The lawsuit has the potential to impact other filmmakers and journalists for the simple reason that source material isn't typically presumed to be co-owned by those being interviewed for research.
But the plaintiffs in this case believe they made a deal with late film producer Bobby Newmyer and screenwriter Margaret Nagle, prior to sitting down for taped interviews. The lawsuit alleges that Newmyer's company, Nagle and other producers including Ron Howard's and Brian Grazer's Imagine Entertainment and Alcon Entertainment breached the deal and joint venture and shouldn't be allowed to enjoy copyright on the script without crediting the refugees as co-authors. Ultimately, the lawsuit makes the case for why The Good Lie can't use those interviews without permission.
The lawsuit raises some thorny legal issues — not unlike those surrounding Innocence of Muslims — and on Tuesday, the defendants filed a motion to dismiss with a 43-page memorandum that should further inform the stakes. The brief, like the lawsuit itself, is multifaceted, and those who wish to read all of the arguments on all of the claims can click here. We'll focus on the contract and copyright aspects.
The refugees aren't a group coming out of the woodwork to allege exploitation with no basis. The lawsuit says that discussions arose about compensation more than a decade ago, that Newmyer made a monetary offer to pay them, and that after filming of The Good Lie commenced, executives at the film companies are on tape as agreeing that the refugees should be compensated for their stories.
Nevertheless, the contract claims fail because there was no written agreement, argue the defendants. Certainly, there are oral pacts made all the time by filmmakers and journalists with sources — see the reporter who agrees to go off-the-record — but when it comes to verbal agreements, some states like Georgia (where the dispute is happening) impose higher burdens then merely showing an offer, consideration and acceptance.
"The contract claim, as pled, is impermissibly vague and does not establish a meeting of the minds on all material terms," states the memorandum. "Plaintiffs admit that no agreement on compensation was reached, and do not claim what the terms of the so-called 'joint venture' were going to be (or what amount of profits and losses would be shared and contributed by the parties), nor do Plaintiffs even allege who the parties to the supposed joint venture agreement were (for example, was it a joint venture of fifty-five partners, who were to split profits and losses equally?)."
The refugees, as well as an umbrella organization called the Foundation for Lost Boys and Girls of Sudan, are also asserting they deserve to be deemed as co-authors of the interviews given. They say the film itself is thus an impermissible derivative. Because they were taped, the plaintiffs say their interviews meet the copyright requirement of being "fixed in any medium of tangible expression." They also claim that the interviews possess a "modicum of creativity."
The producers of a film "based on the historical facts regarding the thousands of refugees known as the Lost Boys of Sudan" attack this theory on many grounds.
The theory fails, they argue, because "(a) Plaintiffs did not register that purported 'work' with the Copyright Office — a prerequisite to subject matter jurisdiction in this Circuit; (b) Plaintiffs do not claim to possess this supposed recording; and (c) even if such a recording existed, the Copyright Act does not protect extemporaneous answers to interview questions."
Leaving aside (a) as an issue of procedure, and (b) as an issue of evidence necessary at the pleading stage, there remains the consequential matter of whether an interviewee's contributions can rise to an original work of authorship. The topic might be considered in some new light given an appeals court's decision last year that an actress' performance in a film evinces some creativity and could be considered an independently copyrightable contribution to a joint work. So how about someone who shares a story on tape to a storyteller? Maybe this person is being a little creative in the way he or she frames the story, decides what to emphasize, and so forth.
In arguing against this proposition, the defendants point to precedent — in particular a 1981 case involving Jerry Falwell against Penthouse magazine. The brief quotes the judge as saying that Falwell "cannot seriously contend that each of his responses in the published interview setting forth his ideas and opinions is a product of his intellectual labors which should be recognized as a literary or even intellectual creation. There is nothing concrete which distinguishes his particular expression of his ideas from the ordinary."
Reality television might offer contrary evidence that what the defendants call "unscripted conversation" can never be protected, but the defendants say that whatever was said by by the refugees during the taped interview wasn't "the result of creative premeditation — they were simply statements of ideas, facts and opinion made during a conversation, and as such, are not creative or literary expression eligible for copyright protection."
The defendants are being represented by David Grossman at Loeb & Loeb as well as local counsel. The next step in the lawsuit is an opposition to the motion to dismiss from the plaintiffs — repped by the firm of Graham & Jensen — which will offer a more detailed legal rationale why the Sudanese refugees who survived so much, now deserve protection on what they told about their journeys.