Protective order issued in 'We Are Marshall' suit

By Cara Bailey | Mar 31, 2008

"We Are Marshall" stars Matthew McConaughey and Matthew Fox.

LOS ANGELES - A protective order was approved by a federal judge after two local filmmakers requested the financial information related to "We Are Marshall," including how much revenue the film brought in and the compensation of several people involved with the film.

Deborah Novak and John Witek are suing Warner Bros. Pictures for $40 million in punitive damages for copyright infringement. According to the suit, Novak and Witek requested information including revenues earned from "We Are Marshall," as well as cost incurred and current and future net income.

U.S. District Court Judge Gary A. Feess signed the order Feb. 15 in the Central District of California. The order says that any document or transcript produced or filed in the proceeding may be designated as "Confidential."

The order states that for the purpose of this case, "Confidential Information" includes revenue earned by the production companies, compensation paid to Basil Iwanyk, Mary Viola, Jamie Linden, Cory Helms and Joseph McGinty Nichol, as well as other producers, actors, directors and writers involved with the film.

Novak and Witek filed the suit last June in the U.S. District Court for Central District of California, claiming Warner Bros. copied from the documentary "Ashes to Glory."

"Ashes to Glory," an award-winning documentary produced by Novak and Witek was released in 2000. It is the story of the rebuilding process Marshall University took after losing 75 members of the community in a plane crash, including most of the football team and coaches.

"We Are Marshall," is a feature film, released in 2006, and also tells the story of Marshall's football program being rebuilt after the plane crash. It was released by Warner Bros. Pictures on Dec. 22, 2006.

The documentary concludes with the team's first win after coming back from the plane crash. In the lawsuit, Novak claims she was in the stands on Sept. 25, 1971, when Marshall defeated Xavier in Huntington. The suit says Novak spent the next 25 years developing "Ashes to Glory."

"This involved countless hours sifting through volumes of first-hand sources, interviewing family members involved in the tragedy, as well as surviving football players, coaches, sports reporters, and relevant members of the community," the suit says.

According to the lawsuit, 10 days after "Ashes to Glory" was released on DVD in November 2003, Novak and Witek were contacted by Mary Viola, requesting to option the documentary for use in a feature film of the same name.

The suit says Viola claimed she was particularly interested in using Novak and Witek's work, because they had already done the necessary research, and Warner Bros. did not want to have to duplicate the work already done.

On Dec. 12, 2003, Viola sent an "option agreement" to Novak and Witek. The option agreement was a contract that said if the rights for "Ashes to Glory" were sold for development into a feature film, Novak and Witek would receive "enumerated benefits" in exchange. The benefits included a lump sum of the sale of all rights in "Ashes to Glory," producer credit on the film, compensation, and writing credits, among other benefits.

The suit also says Basil Iwanyk, the producer of "We Are Marshall," told Novak and Witek he would also serve as a producer on the film, in a package deal with Thunder Road and Warner Bros.

In February 2004, the suit states Viola sent Novak and Witek a "free option agreement." The contract was for the purchase of the rights to "Ashes to Glory," including its title, themes, contents, plot, plot structure, and characters for development into a feature film.

"The contract, prepared and drafted by Defendants, identifies 'Ashes to Glory' as an 'original' work, 'created' and owned by Plaintiffs," the suit says.

Between February and March 2004, the suit says Cory Helms and Jamie Linden were hired to write the feature film.

On March 1, 2004, the suit says Viola contacted Novak and Witek and informed them that the contract was done, and all parties were "on the same page."

In January 2006, Warner Bros., Thunder Road and Wonderland announced their plans to release "We Are Marshall."

On Dec. 22, 2006, the film was released in theaters with Iwanyk and McG credited as producers and Linden and Viola as co-producers. Helms was given "story by" credit and Linden was given both "story by" and "screenplay" credit.

Novak and Witek claim there are extensive similarities between "Ashes to Glory" and "We Are Marshall," including the chronological order of events, tone, sequencing, emphasis, characters, theme and archival clips.

The suit says both films open with an aerial view of Huntington and Marshall, in the fall, and begins at the annual memorial service for those lost in the plane crash.

Also, the suit claims the events that take place in the Morehouse home, including the news bulletin that scrolled across the bottom of a television showing the same episode of "The Newlywed Game," where exact, even though Novak and Witek picked that episode at random, to depict the show generally.

More than 20 other similarities are included in the lawsuit.

The suit also claims the producers, writers and actors all admit they studied "Ashes to Glory" to prepare for their parts in "We Are Marshall."

In the six-count suit, Novak and Witek seek $40 million in punitive damages, any statutory damages conferred by the Copyright Act of 1976, and attorney's fees and costs.

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