Judge Reminds Documentary Makers You Can't Copyright Facts

from the once-again...-with-feeling dept

In the past, we've discussed the oddity that moviemakers often purchase the rights to true stories before making movies about them. There's really no legal reason for them to do so -- as you can't copyright factual information. Anyone can make a movie based on a true story without purchasing any kinds of rights. Now, there may be some business reasons for doing so. Licensing the story from either those who were involved or who initially reported on it may allow you to have those people more involved in making the movie itself (though, that could just be handled by hiring them to advise, rather than "licensing" the story). Still, it did seem odd that it was so common for true stories to be "sold" this way.

Now a judge is reminding people that true stories aren't copyrightable. Rose M. Welch points out a ruling from a lawsuit filed by two filmmakers who had made a documentary called Ashes to Glory: The Tragedy and Triumph of Marshall Football, about the 1970 plane crash that killed the Marshall University football team, and the aftermath where the school tried to rebuild its football program. A few years ago, Warner Bros. made a (non-documentary) movie called We Are Marshall starring Matthew McConaughey about the same story. No one denies that Warner approached the documentary filmmakers about licensing their work -- but no agreement was reached.

The documentary makers then sued Warner for copyright infringement when their movie came out. However, a judge has dismissed the lawsuit, noting that you can't copyright facts, and most of the material in the film could easily have been gleaned from public news stories concerning the events. The judge also pointed out that We Are Marshall was heavily fictionalized and contains plenty that is unrelated to the documentary. As the judge noted: "Even though the two works have the same story as their subject, they are not substantially similar as the phrase is used in copyright jurisprudence."

It will be interesting to see if this leads studios to be less willing to license stories before making movies. This ruling also could mean bad news for the woman who claims to own the rights to the play Jersey Boys, as the situation there is pretty similar. Warner Bros. put out a statement saying how wonderful this decision was, though the company has its own history of overly aggressively trying to enforce its copyrights.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Lonnie E. Holder, Oct 23rd, 2008 @ 2:18pm

    What Can Be Said

    I kept hoping for brilliance to flood my brain (didn't happen), so I am stuck with the mundane.

    Who in their right mind ever thought they could copyright history?


    reply to this | link to this | view in thread ]

  2. icon
    Jazz (profile), Oct 23rd, 2008 @ 3:08pm

    Wouldn't the point of purchasing rights to a true story be so that the studios can avoid, for example, defamation law suits if they get any of the facts wrong and cast REAL people in a 'fictional' and bad light?

    Just a thought.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Oct 23rd, 2008 @ 4:04pm

    Re: What Can Be Said

    "Who in their right mind ever thought they could copyright history?"


    reply to this | link to this | view in thread ]

  4. identicon
    No Six Pack, Oct 23rd, 2008 @ 6:05pm

    Does this mean we will see less movies "based upon a true story" ? I hope so.

    reply to this | link to this | view in thread ]

  5. identicon
    Lonnie E. Holder, Oct 23rd, 2008 @ 7:19pm

    Re: Based On

    Yeah, they will be replaced by "inspired by" a true story.

    reply to this | link to this | view in thread ]

  6. identicon
    Trollificus, Oct 23rd, 2008 @ 9:48pm

    What can be copyrighted.

    "Who in their right mind ever thought they could copyright history?"

    Anyone who thought there could be a buck made by holding that it could be. Oh yeah, lawyers. Right mind? Not demonstrated.

    and, @Jazz
    I think studios (and newspapers, novelists, columnists, essay writers, editorialists and the writing staff of every freaking comedy show) have the right to portray anybody more or less as they please...unless they are making a movie that also purports to be a news report or sth.

    reply to this | link to this | view in thread ]

  7. identicon
    bowerbird, Oct 24th, 2008 @ 12:25am

    when a studio buys a story from you,
    the contract makes you stipulate that
    the story is yours alone, which means
    that anyone who wants to bring a suit
    must file it against you, not the studio.

    so they're purchasing lawsuit protection,
    invariably at a price that's much cheaper
    than having to defend against such a suit,
    because the proceeds from their product
    are outside the sphere that can be claimed.


    reply to this | link to this | view in thread ]

  8. icon
    Richard Ahlquist (profile), Oct 24th, 2008 @ 5:21am

    errr ok so your saying

    Facts cant be copyrighted. Hmm so that means the encyclopedia cant be copyrighted?

    reply to this | link to this | view in thread ]

  9. identicon
    Kevin S. Brady, Oct 24th, 2008 @ 5:51am

    Re: errr ok so your saying

    Sure it can. While the underlying bare facts themselves are not copyrightable, the encyclopedia's presentation (in words, diagrams, photos, etc.) of those facts can be.

    reply to this | link to this | view in thread ]

  10. identicon
    Tony, Oct 24th, 2008 @ 9:41am

    Re: Re: What Can Be Said

    You seem to have missed the part that said "in their right mind."

    reply to this | link to this | view in thread ]

  11. identicon
    LostSailor, Oct 24th, 2008 @ 10:31am

    Good Reasons to License

    To echo what Jazz and Bowerbird said, there are plenty of very sound business reasons to license the rights to a "true" story from the principals involved.

    Jazz mentioned the non-copyright reasons of avoiding potential suites for various forms of invasion of privacy (including "casting in false light"), defamation, libel, etc. This is especially true in the case of dramatic works of "true" events. Bowerbird is correct that they are purchasing lawsuit protection.

    There's also the benefit of being able to market an "authorized" edition.

    Ultimately this is not a copyright issue, unless the subject of the "true" story has previously published a work about the story and another dramatic presentation (movie, TV show) cribs too closely from that.

    reply to this | link to this | view in thread ]

  12. icon
    Killer_Tofu (profile), Oct 27th, 2008 @ 6:05am

    BASED on a true story

    While IANAL, I think they cannot be sued anyways.
    They pretty clearly state, BASED on a true story.
    They never say that This IS the story and is 100% factual.
    Unless perhaps they are making a documentary and that is how they intend it.
    But the big studios only make movies based on true stories, and could really change anything in the movie they wanted to.

    I will point out the movie Fargo. It says it is based on a true story. However, looking at the special features on the film, the guys who made the film just tossed it in there. It was in no way based on a true story.
    So, how much do the words based on a true story mean? They mean absolutely nothing.
    They can change anything, and unless they are claiming them to be the precise facts, I think the line "Based on a true story" is lawsuit protection enough.

    reply to this | link to this | view in thread ]

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