Rarely does one think of copyright issues surrounding how research is conducted for feature films that are based on real life events, but 54 Sudanese refugees are forging that new connection between research and copyright in one lawsuit pending in the U.S. District Court of Georgia sitting in Atlanta.
Those refugees, who survived starvation, disease and the militia attacks in Darfur, arrived in the U.S. and then sat down with film producer Robert Newmyer and screenwriter Margaret Nagle back in 2003 where they shared their life stories in a series of recorded interviews. The court found the 54 refugees to be joint authors of the script for the 2014 “The Good Lie” film starring Reese Witherspoon. The refugees created original expression in their oral telling of their stories that were fixed in tangible medium in the recorded interviews. “While some common elements of the Lost Boys’ story were publicly available, Newmyer and Nagle wanted to create a movie with real, personal and emotional details otherwise unavailable to the public at large,” says the lawsuit. “Newmyer and Nagle needed the details from the Lost Boys’ personal stories and permission to use those details in a screenplay and subsequent film. The title of The Good Lie, for instance, is said to refer to a lie once told by one of the refugees on the taped interview to would-be-captors that saved his life.
The defendants argued that the 54 refugees’ answers in the interview do not possess the modicum of creativity to constitute an original work of authorship under copyright law. U.S. District Judge Leigh Martin May found otherwise in her recent 54-page ruling:
“The Interviews, however, did not consist merely of ‘ideas, facts and opinion made during a conversation,’ like the interviews by journalists in the cases Defendants cite,” responds May. “Rather, the Interviews were a creative process designed to create material for a screenplay and film. All that an ‘original work’ must possess is ‘some minimal degree of creativity’ … even a slight amount will suffice. Plaintiffs’ telling of their personal stories in response to questions designed to elicit material to create a fictional script for a feature film likely includes enough creativity to render the Interviews an original work of authorship.”
A major flaw in the case arose when it was shown that the 54 refugees do not have U. S. Copyright registrations of the taped interviews. The defendants argued that the case must be dismissed for the plaintiffs’ failure to obtain the requisite registrations; however, the court held that the failure to register was solely due to the defendants’ refusal to provide the 54 refugees with copies of the interviews. The defendants were found to have been the sole obstacle to the plaintiff having the tape recordings to satisfy the U.S. Copyright Office requirement that the tapes be submitted as specimens of the work at issue.
The court found that the umbrella organization, the Foundation for Lost Boys and Girls of Sudan, and the 54 refugees’ lawsuit may proceed based on copyright infringement, breach of the joint venture agreement, breach of fiduciary duty, conversion of plaintiffs’ ideas, breach of the covenant of good faith and fair dealing, unjust enrichment, promissory estoppel and other claims. The complaint alleges that Robert Newmyer and others orally promised the 54 refugees that the Foundation would be one of the joint members of the movie venture; and, that the Foundation would be the sole beneficiary of any fundraising efforts associated with the movie. The court held in its March 2016 opinion both that a jointly authored copyright arose in the recorded interviews; and also that an oral promise to be joint participants in the venture is enforceable notwithstanding Newmyer’s untimely death in 2005.
This lawsuit is noteworthy even beyond the allegations of the Hollywood exploitation of Sudanese refugees as it is an ambitious attempt at a declaratory judgment over authorship predicated upon tape recorded interviews. This is a case to watch.