We Are Marshall Decision Emphasizes that Facts Are Not Copyrightable

The Real-Life Event

 

On November 14, 1970, a Southern Airways flight carrying the Marshall University football team, most of its coaches, and numerous fans crashed into a West Virginia hillside. There were no survivors.

 

Among the outcomes of the tragedy was the decimation of the Marshall University football program. After a struggle to rebuild itself, the football team won an emotional last-minute victory over Xavier during the first post-crash home game. The airplane crash and its aftermath received national media coverage.

 

The Tragedy Yields a Documentary and a Feature Film

 

In 2000 Deborah Novak and John Witek  produced Ashes to Glory, The Tragedy and Triumph of Marshall Football, a documentary memorializing the crash, its aftermath, and the rebuilding of the Marshall University football program.  After unsuccessfully trying to option rights to Ashes to Glory from Novak and Witek, Thunder Road Film Productions in conjunction with Warner Brothers produced and released We Are Marshall a 2006 feature film based on the Marshall University plane crash.  The Thunder Road production weaves fictional elements into the fact-based story.

 

Novak and Witek sued the We Are Marshall producers claiming that the feature film infringed the copyright in their documentary, Ashes to Glory.  Novak and Witek’s claim was dismissed without a trial.  The court ruled that We Are Marshall is not substantially similar to Ashes of Glory which is a requirement for a successful copyright infringement action.  The court also agreed with Thunder Road’s argument that the works are similar only in that both deal with the events surrounding the November 14, 1970 airplane crash, and that those events are historical facts in which no one can claim a copyright interest.

 

Lessons for Producers and Writers of Stories Based on Real-Life Events

 

If you’re producing or writing a film or book based on real-life events, you might use existing books and other works covering the same events as research resources.  You can do that.  However, while you can freely copy and use facts from those existing works, you can not take any of the copyright­able expression from the resource.

 

For example, author Jack Robinson infringed a fact-based work when he wrote American Icarus: The Majestic Rise and Tragic Fall of Pan Am, a manuscript about the rise and fall of Pan Am Airlines. Robinson used as a research source a biography of the Pan Am Airlines founder written by author Robert Daley. There was no problem with Robinson’s use of factual and historical material from the biography.   However, Robinson used over twenty-five to thirty percent of the exact words and phrases from the biography, duplicating Daley’s organization, writing style, punctuation, details, scenes, events, and characterizations.