9:18am PT by Eriq Gardner
'Sully' Producers Face Airplane Consultant's Co-Authorship Claim
In the Warner Bros. film Sully, producers attempted to re-create the spectacular "Miracle on the Hudson" landing in 2009 by US Airways pilot Chesley Sullenberger. Now, Warner Bros., Village Roadshow Films, RatPac-Dune and others behind the Clint Eastwood movie are in court with the man who sold filmmakers an Airbus A320 aircraft to use.
Scott Heger, the chief executive of Blair Adhesive Products, got $1.25 million for selling an aircraft. But he claims he deserves more. According to his lawsuit, there were "two main characters" in the 2016 film: Sullenberger (played by Tom Hanks) and the Airbus A320 — and for the latter, producers needed Heger's assistance for the "acting" of the plane. Heger alleges he was asked to serve as an "aerial coordinator" on the film, but that the producers have failed to compensate him for such consulting services. He's also asserting a copyright claim, now looking to be deemed a co-author of Sully for his supposed contribution to the film.
On Friday, after having the case moved to federal court, the producers sought to dismiss the copyright grab and told a California federal judge that Heger was attempting to "overcomplicate what is at best a garden variety action for breach of contract by asserting claims that veer into the frivolous."
To be a co-author, Heger will need to show that Sully was a "joint work," and that the various authors intended their contributions to be merged into an inseparable work. The seminal case in this realm is Aalmuhammed v. Lee, where an expert in the 1960s civil rights era came forward to assert he was hired by Spike Lee to render assistance in creating the 1992 film Malcolm X. The 9th Circuit Court of Appeals rejected Aalmuhammed's attempt at being deemed a co-author because Lee wasn't bound to accept his suggestions. (The case was recently discussed extensively in a fascinating decision regarding authorship in modded video games.)
Heger claims he did indeed exert control over Sully, the parties made manifestations of a shared intent to be co-authors, and the audience appeal of Sully is partly attributable to his contributions.
The producers, in a motion to dismiss, respond that it's all nonsense.
"Heger’s claim to co-authorship is far weaker than even the claim in Aalmuhammed," they state.
"Nowhere in the [complaint] does Heger allege that he had ultimate decision-making authority on what was or was not included in Sully," they continue. "As in Aalmuhammed, while Heger purportedly made recommendations, there is no allegation that [Warner Bros.] or Mr. Eastwood had to accept them. There is no allegation that Heger could dictate how, or if, the portions over which he purportedly had 'total control' would be incorporated into the film."
The producers also dispute the supposed shared intent to be co-authors, saying that it would be "illogical" to conclude otherwise when the screenwriter nor anyone else involved in the film was afforded such status. They also point to Heger's allegation that everyone working on the film executed "work for hire" agreements and how Heger is separately and inconsistently insisting he's an employee who deserves compensation.
Plus, they nod to both the film's credits and the copyright registration without Heger's name.
And as for his contribution to the film's audience appeal, the producers say Heger offers no support.
Did anyone really go to see the film for the aircraft — not Tom Hanks? Was the act of directing actors on how to channel Captain Sully during the miracle flight truly an independently copyrightable contribution, or as defendants argue, an act "bereft of any creativity and [consisting] of nothing more than communicating historical facts"?
Michael O'Connor and David Jang, attorneys at Kelley Drye & Warren, are co-piloting the litigation for the film defendants, and here's their bird strike.