ESPN Must Face Copyright Trial Over Football Documentary

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ESPN can't evade a trial for copyright infringement after a Mississippi federal judge on Monday denied the sports giant's motion for summary judgment.

The dispute centers on two documentaries about the life of college football player Chucky Mullins, who was paralyzed during a 1989 game between University of Mississippi and Vanderbilt University while tackling Brad Gaines. Mullins died as a result of complications from his injuries in 1991.

Charles Smith Jr. and his production company 38 Films sued ESPN, Wendy Yamano and others in August 2016 for breach of contract, fraudulent misrepresentation and copyright infringement, among other claims. He says the 2014 ESPN documentary It's Time: The Story of Brad Gaines and Chucky Mullins used his footage without paying an orally agreed upon license fee or giving appropriate credit.

Smith set out to make a documentary about Mullins' life in 2004, and hired Micah Ginn and Matthew Nothelfer to assist him. The film, Undefeated, featured interviews with the athlete's family, friends, Ole Miss players and staff and Gaines.

Fast forward to 2013, when Yamano contacted Ginn about her ESPN documentary. Ginn told her about Undefeated and sent her a copy of the film upon her request.

Smith claims he understood the ESPN documentary to be about Gaines and he agreed in an oral contract to license footage from his film at a rate of $3,000 per minute used and Ginn gave Yamano their entire archive of digital files. Meanwhile, the defendants say their film is about Gaines, not Mullins, and that they didn't use any footage actually featured in Undefeated or owned by 38 Films.

Smith says they digitized and altered the third-party footage in their archives and Yamano's use of it violated the terms of their contract — but defendants contend that even if they did use footage mastered by 38 Films that wouldn't rise to copyright infringement.

U.S. District Judge Michael Mills found upon viewing the two works that "identical or similar footage and photographs featured in Undefeated are also depicted in It’s Time."

"The question of whether the digital media existing in It’s Time came directly from Undefeated is important if, as the Plaintiffs argue, the Plaintiffs altered the footage from its original form in the digitization and production process," writes Mills. "By removing images of the Confederate flag being waved in the Ole Miss stadium, presumably to avoid uncomfortable plot ironies, Plaintiffs altered the media from its original state. In doing so, the Plaintiffs instilled more culturally sensitive graphics to the footage, changing the picture to fit their hagiographic narrative."

Whether that creative expression is enough to make the footage copyrightable is a question for the jury, Mills found.

Defendants also argued that Smith and 38 Films don't own any right to Mullins' story, but Mills notes that courts have held that an author's expression of facts may be protectable even if the facts themselves are not.

"Plaintiffs assert that copyright laws protect their storytelling in Undefeated, and that the selection of interviewees and their stories, as well as the sequence in which those stories appear, is included in their storytelling," writes Mills. "A reasonable jury could find that the selection and order of interviews, stories, and historical footage in Undefeated is an original work of authorship, and further, that the Plaintiffs’ expression of Mullins’ story is protected under copyright law."