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Some Things Still Can't Be Copyrighted


The Ninth Circuit Court of Appeals entered the following “unpublished” decision today in Novak v. Warner Brothers Pirctures, LLC:

Deborah Novak, John Witek, and Witek & Novak, Inc., (collectively, the “Producers”) hold the copyright in Ashes to Glory, a documentary film that portrays the rebuilding of Marshall University’s football program after it lost all but a handful of its players, coaches, and prominent supporters in a disastrous plane crash in 1970. The Producers brought this action against Warner Brothers Pictures and several related parties (collectively, “Warner Brothers”), alleging copyright infringement, breach of contract, and unfair competition, all in connection with the Warner Brothers’ subsequent production of the allegedly infringing work, the dramatic film We Are Marshall. We Are Marshall is based on the same historical facts as Ashes to Glory. The district court granted summary judgment in favor of Warner Brothers on all claims. The Producers timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Upon de novo review, we affirm.

Proof of infringement in this case requires a fact-based showing that We Are Marshall and Ashes to Glory are “substantially similar.” The district court, for its part, conducted a meticulous, almost frame-by-frame analysis of the two works and concluded that the Producers had failed to raise a triable issue of substantial similarity. Having reviewed the two works ourselves, we agree with the district court that the works are not substantially similar.

It is true that the same historical facts underlie both productions, but historical facts are not protected by copyright. See, e.g., Narell v. Freeman, 872 F.2d 907, 910-11 (9th Cir. 1989). The issue for purposes of summary judgment is whether the Producers raised a triable issue of substantial similarity between We Are Marshall and the protected expression in Ashes to Glory. That issue is determined by applying an “extrinsic” test, which “focuses on ‘articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events’ in the two works.” Except for matters of historical fact, these elements of the two works before us are not substantially similar, as the district court explained in detail. Contrary to the Producers’ claims, we conclude that the district court did compare the “actual concrete elements” between the two works, rather than mere plot ideas.

The Producers contend that the district court imposed an improperly severe standard of infringement when it quoted Narell for the proposition that “[h]istorical facts and theories may be copied, as long as the defendant does not ‘bodily appropriate’ the expression of the plaintiff.” But neither Narell nor the district court substituted a “bodily appropriation” standard for the “substantial similarity” standard. Although allowances necessarily must be made for permissible similarity in relating unprotected facts, the substantial similarity standard of infringement has long been and remains the law of this circuit. The district court properly applied that standard in conducting its analysis.

The Producers also rely on the fact that Warner Brothers had total access to Ashes to Glory before producing We Are Marshall. The Producers rely on the “inverse ratio” rule, which ostensibly lessens the quantum of proof required to show copying when the plaintiff can show that the defendant had a “high degree of access” to the protected work. This proposition does not aid the Producers here, however, because “[n]o amount of proof of access will suffice to show copying if there are no similarities” between the protected expressions in the two works. Even under a relaxed standard, the requisite similarities must be “concrete or articulable” to satisfy the extrinsic test. In this case, the only concrete or articulable similarities between Ashes to Glory and We Are Marshall consist of unprotectable scènes à faire and historical facts, which, like all facts, whether scientific, historical, biographical, or news of the day, may not be copyrighted and are part of the public domain available
to every person.

The Producers also argue that evidence of substantial similarity can be shown in the same sequencing of events in the two films, especially in the two works’ opening montages. Upon reviewing the films, we conclude that the two films do not contain the same sequencing of events: even in the two films’ opening sequences, Ashes to Glory differs significantly from We Are Marshall by including the film’s title and many additional shots of the town of Huntington and the university campus. The Producers have failed to raise a triable issue of substantial similarity, and the district court did not err in entering summary judgment for Warner Brothers on the copyright infringement claim.

My favorite part of this is that the judge actually watched both movies and supposedly conducted a “meticulous, almost frame-by-frame analysis.” Where do I sign up for that gig?

Skip Oliva is a writer and paralegal in Virginia (skip@skipoliva.com).

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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