Dean Rodney A. Smolla, Delaware Law School, Widener University
May 24, 2016
The U.S. District Court for the Northern District of Georgia, in a decision by Judge Leigh Martin May, recently issued an order allowing a copyright infringement case brought on behalf of 54 Sudanese refuges against the makers of the film “The Good Lie.”1
The 2014 film, which starred Reese Witherspoon, depicts the struggle of survivors of militia attacks in Darfur attempting to make their way to the United States. The refugees agreed to taped interviews with screenwriter Margaret Nagle, sharing with Nagle their life stories. Nagle used the interviews to write the movie.
In a claim with potentially far-reaching implications for many creative works based on real events and the stories of real people, the court has provisionally allowed the plaintiffs to proceed on claims of copyright infringement, on the theory that the refugees being interviewed were engaged in a joint effort with the screenwriter to produce a film, and that the interviews that were created thus became the joint copyright property of the interviewer and the interviewees.
The refugees, who survived terrible hardships, walking for months across the wilderness before reaching refugee camps in Ethiopia and Kenya, are surely inspiring and sympathetic plaintiffs. But as the cliché goes, hard cases make bad law, and I’m afraid that the hardships suffered by these plaintiffs may indeed have made exactly that.
The court held that “Plantiffs’ 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.” The plaintiffs reasoned that if the refugees were joint owners of the interviews, they in turn were entitled to control the use of those interviews to create a derivative work, the movie itself.
The filmmakers claimed that there was no joint ownership of the interviews because the interview process was never intended to be the creation of a “joint work” within the meaning of copyright law. The court, however, quoting a Seventh Circuit opinion in Janky v. Lake Cty. Convention & Visitors Bureau,2 held that “[T]he intent prong does not have to do with the collaborators’ intent to recognize each other as co-authors for purposes of copyright law; the focus is on the parties’ intent to work together in the creation of a single product, not the legal consequences of that collaboration.” The court reasoned that the refugees had alleged sufficient facts in their Complaint to support the claim of joint authorship, stressing the importance of contributions of all parties participating in the interviews to the screenplay and ultimate film.
The court’s order also concluded that other claims brought by the refugees, on theories such as unjust enrichment, quantum meruit, and breach of oral contract were not preempted by the Copyright Act, and could move forward as well. The case will thus now move forward into the discovery stage.
If the plaintiffs do ultimately prevail, their victory may be at once disruptive and disturbing. Authors interview people for stories all the time. It surely cannot be that a source quoted by a journalist in an interview somehow has a copyright claim cognizable against the journalist for accurately capturing (or quoting verbatim) the statements of the source. It’s at best a play on words regarding “intent” to understand an interview as the occasion of the creation of a joint work for purposes of copyright law. If that becomes the default position, then all journalists, historians, writers, and filmmakers who interview real people will be forced to obtain waivers or licenses from their subjects. This would be highly cumbersome, act as a major drag and deterrent on this critical form of information-gathering, and invite vexatious litigation.
It is, of course, perfectly possible that the subjects of an interview and the writers conducting the interview would in fact intend the effort to be a joint work. A filmmaker might say to a subject: “Let’s make a movie together. You tell me the story, I will write the script, and we will jointly own the copyright.” The default position of the law, however, should be that this is not what is intended in routine interviews, whether for workaday stories by journalists, or longer, more ambitious projects such as books or movies. Rather, there should be some affirmative evidence demonstrating such an intent to create a joint work before joint copyright in the resulting interviews is recognized.
Thus, a person might refuse to be interviewed unless paid, or unless cut in as a joint-owner of the copyright, on whatever terms might be negotiated. But if you sit down with an author or screenwriter and voluntarily tell your story, even knowing that the interviewer intends to use that story to produce a movie or book, and you voluntarily give the information away for free, you ought not later be able to claim some ownership or right to financial benefit after the fact. It strikes me that any other rule will have a dangerous chilling effect on newsgathering and the production of creative works based on real events and real people.