Can interview be an original work of authorship?
The fifty-four individual Plaintiffs (the “Lost Boys”) are Southern Sudanese refugees and residents of the state of Georgia fleeing genocidal activity occurring during the Second Sudanese Civil War. As repeated militia raids on Southern Sudanese villages made militia tactics more predictable, the Lost Boys and others were instructed to flee their villages at the first signs of attack. The Lost Boys and others walked for months through the wilderness before reaching refugee camps in Ethiopia and Kenya, experiencing many trials and tribulations, often unique to each Lost Boy. The Lost Boys and thousands of others were granted asylum and residency in the United States, and the Lost Boys settled in and around Atlanta, Georgia. As part of their effort to deliver aid to South Sudan, the Lost Boys created Plaintiff Foundation for Lost Boys and Girls of Sudan, Inc. (the “Foundation”). In 2002, some plaintiffs met Robert “Bobby” Newmyer, a film producer and partner at Defendant Outlaw Productions. When they told Newmyer about some of their experiences prior to arriving in the United States, Newmyer expressed interest in making their stories into a feature film and agreed to travel to Atlanta to meet with them. Newmyer and Outlaw recruited Nagle, a screenwriter, to write the script of a screenplay incorporating “real, personal and emotional details” of the Lost Boys’ stories “otherwise unavailable to the public at large.”
In 2003, Nagle and Newmyer travelled to Atlanta to interview a number of Lost Boys to provide Nagle with background, stories, facts, and other material to write the script. Before beginning interviews concerning their individual experiences in escaping war and making their way to the United States (the “Interviews”), the Lost Boys demanded to know what compensation they would receive for their assistance. After conferring, Newmyer and Nagle explained that, until details of any film production using the not-yet-written script were determined, agreeing on compensation from that production was impossible. Nonetheless, in exchange for participating in the Interviews, Newmyer and Nagle orally offered to pay the Lost Boys $55,000 “immediately”. Nagle and Outlaw, through Newmyer, thus partnered with the Lost Boys on the terms of this offer to (1) create the screenplay, formed through the Lost Boys’ contributions of their experiences in the Interviews and Nagle’s contribution of synthesizing those experiences into a coherent script (the “Screenplay”); and (2) seek to sell the Screenplay to a studio or filmmaker to produce a film from the Screenplay. The Lost Boys accepted this offer and proceeded with the Interviews. The Interviews were recorded, and either Newmyer or Nagle (or both) retained all recordings. Nagle used material gained from the Interviews and from subsequent discussions with certain of the Lost Boys to write the Screenplay, later titled The Good Lie.
Over the next several years, the rights in the Screenplay were sold multiple times. The corporate defendants, in conjunction with Nagle, revised the screenplay and began to film The Good Lie in Atlanta in early 2013. None of the defendants contacted the Lost Boys to discuss their compensation for or consent to the film’s production before beginning to shoot the film. The Lost Boys soon thereafter contacted the director of the film, Philippe Falardeau, and producers for Black Label Media and Imagine Entertainment, Molly Smith and Karen Sherwood. Smith and Sherwood confirmed that the screenplay for The Good Lie was a revised version of the Screenplay. Smith agreed with the Lost Boys that their life stories were used in the Screenplay and that they should be compensated for their use. Negotiations thereafter broke down, and counsel for certain of the Corporate Defendants denied any obligation to compensate Plaintiffs for their contributions to the Screenplay, denied that Smith conceded that the Screenplay used the Lost Boys’ life stories. Lost Boys irrevocably assigned all of their intellectual property rights in their respective life stories and all rights in their claims against Defendants to the Foundation.
Plaintiffs filed lawsuit. Defendants argued that Plaintiffs cannot proceed because they failed to register their copyrights. In response, Plaintiffs argued that they cannot register for a copyright in either the Interviews or the Screenplay because they lack copies of either to deposit with the Office of Copyright. Plaintiffs alleged that they are rightful co-owners of an original joint work of authorship (the Interviews) and of a derivative work that makes use of the original work (the Screenplay), but couldn’t sue for copyright infringement against the Screenplay Defendants because they lack possession of a copy of the Interviews (which have never been registered), and so couldn’t submit a valid registration application. The Court has allowed Plaintiffs leave to re-file their Copyright Act claim should they successfully register their copyrights in the future, or if a valid registration application is denied by the Register of Copyright.
Defendants first argued that Plaintiffs’ copyrightable contributions to the Interviews were not fixed in a tangible medium of expression, and so they may not bring a copyright claim. This argument ignored Plaintiffs’ plausible allegation that the Interviews were tape-recorded and so were able to be “reproduced … with the aid of a machine or device.” Defendants next claimed that the Interviews cannot constitute an original work of authorship because “an interviewee cannot claim copyright protection for his answers in an interview.” 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 cited. 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.