In “Lost Boys” suit over 2014 movie, judge OKs novel copyright theory

March 31, 2016

(Reuters) – Is an interview a creative collaboration between questioners and their subjects? And, if so, do interview subjects have copyrights? They might, according to a provocative ruling last week by U.S. District Judge Leigh May of Atlanta.

In 2003, a film developer and a screenwriter from Los Angeles sat down in Atlanta to interview 54 Sudanese “Lost Boys,” refugees who fled their villages in South Sudan to escape genocide; walked for months to reach camps in Ethiopia and Kenya; and resettled in the U.S. in the 1990s. The refugees told the movie people their life stories, not just about their struggles in Sudan and the camps but also the difficulties they faced when they came to the U.S.

The film developer died in 2005 but the screenwriter, Margaret Nagle, eventually wrote and sold a script about the Lost Boys. Nagle’s script ultimately became the 2014 Reese Witherspoon movie The Good Lie.

The Sudanese refugees Nagle had interviewed in 2003 believed they recognized personal details from their stories in the film. In 2015, after negotiations with the movie’s producers failed, the refugees and the Foundation for Lost Boys and Girls of Sudan filed a complaint in federal court in Atlanta against Nagle, the film developer’s estate and the movie companies that produced The Good Lie. The refugees’ lawyers at Graham & Jensen claimed the defendants had breached a promise made to the refugees in 2003, when Nagle and the developer allegedly said they’d make sure the refugees would be compensated if a movie were ever made.

The contract issues, which I first read about in the Atlanta Daily Report, are interesting but idiosyncratic. I was more intrigued by an additional theory asserted by the refugees: The suit accused the defendants of violating the federal Copyright Act. According to the Lost Boys, a recording exists of the refugees’ 2003 interview with Nagle. They do not have a copy of the recording, whose existence is in dispute, and have not registered a copyright with the U.S. Copyright office. They nevertheless asked for a declaratory judgment of their interest in the interview and of Nagle’s script for The Good Lie, which they said had derived from the interview.

The defendants, represented by Loeb & Loeb, moved to dismiss the refugees’ case, arguing (among other things) that the copyright issue is a dead end. According to the defendants, even if a recording actually exists of the 2003 interview, interview subjects do not have rights over the answers they provide.

The brief cited case law from two federal trial courts. In 1981, a judge in Lynchburg, Virginia, dismissed Jerry Falwell’s copyright and privacy suit against Penthouse, ruling that Falwell’s answers to questions from journalists could not “be recognized as a literary or even intellectual creation.” (Falwell had claimed the journalists sold the interview to Penthouse against his wishes.) In 2000, a judge in East St. Louis, Illinois, cited the Falwell decision when he ruled that a prison inmate convicted of sexually assaulting two boys had no rights over the videotape of an interview he gave to a television reporter who supposedly broke a promise not to use excerpts from the tape. “Plaintiff’s claim fails because the utterances made during an interview are not an expression of an idea for the purpose of copyright law,” the opinion said. “They are simply an idea, and thus not subject to copyright protection.”

Like Falwell and the prisoner, the Lost Boys defendants argued, the refugees had simply offered impromptu ideas, facts and opinions in the interview. Their statements, according to the motion to dismiss, “were not protectable literary works nor were they the result of creative premeditation and as such, are not creative or literary expression eligible for copyright protection.”

In response, the refugees said the interview was part of a “joint creative process” that led to The Good Lie script. “The participants were not merely relaying historical facts in a rote manner, but were telling their life stories in a way that would be emotionally gripping and educational,” the brief said. “They were shaping their stories so that they could be conducive to a film screenplay.” The Lost Boys’ lawyers compared their interview to a conference call Swatch executives conducted with analysts in 2011; in 2013, the 2nd U.S. Circuit Court of Appeals affirmed Swatch’s copyright over the recording.

Judge May’s March 22 decision concluded that the refugees may have rights stemming from the 2003 session. “The interviews were a creative process designed to create material for a screenplay and film,” she found, distinguishing the give-and-take between the Lost Boys and the movie people from journalism. “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,” the judge wrote.

I should point out that Judge May also found the refugees and the foundation don’t actually have copyright claims because they haven’t registered a copyright. (She reluctantly rejected their lawyers’ argument that defendants are to blame for that failure because Nagle and the producers refuse to turn over the interview recording.) She dismissed the Lost Boys’ claim for a declaratory judgment on their rights over the interview – but said they nevertheless had asserted sufficient allegations for copyright infringement and could be entitled to an injunction.

The judge’s ruling is just on a motion to dismiss, but, as a journalist, I worry about her reasoning. Reporters interview people every day. Presumably, many of those people – like the Sudanese refugees in the case before Judge May – offer answers designed to shape the telling of their stories. Can they record the interviews, register copyrights and claim rights to the reporters’ work? Judge May seems to distinguish between journalism and fiction, but many writers of non-fiction use the same narrative techniques as novelists. And many writers of fiction conduct interviews to inform their work. Is every interview subject a co-author?

The Lost Boys are, of course, incredibly sympathetic plaintiffs, even more so if it is true that they were promised compensation and then cut out of the movie deal. (Supposedly a producer of The Good Lie offered the group $1 million after a meeting with the refugees in 2013 but later withdrew the offer.) But I sure wish their case were premised only on the defendants’ alleged breach of their joint venture agreement, not on an unregistered copyright on a fact-finding interview.

I left a phone message for plaintiffs lawyer Jason Graham but didn’t hear back. Defense lawyer David Grossman said he is not authorized to comment.

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