Judge dismisses 'We Are Marshall' copyright suit

By Cara Bailey | Oct 23, 2008

"We Are Marshall," starring Matthew Fox and Matthew McConaughey, was released in December 2006.

HUNTINGTON - A federal judge in Los Angeles dismissed a copyright infringement lawsuit filed over the film "We Are Marshall," claiming the historical facts portrayed in the movie cannot be owned or protected by copyright.

U.S. District Judge Allen Feess on Oct. 20 granted Warner Bros. Pictures summary judgment against Huntington documentary filmmakers Deborah Novak and John Witek, who were seeking $40 million in punitive damages.

Novak and Witek filed a suit in June 2007 against Warner Bros. and other defendants, claiming the makers of "We Are Marshall" stole work produced in "Ashes to Glory," a documentary Novak and Witek released in 2000. The suit said "We Are Marshall" included more than 20 similar events with "Ashes to Glory."

Both films tell the story of the 1970 plane crash that claimed the lives of 75 members of the Huntington and Marshall communities, including the majority of the university's football team. The plane crashed Nov. 14, 1970, as it was preparing to land at Tri-State Airport near Huntington after a game at East Carolina University.

"We Are Marshall" was released in December 2006.

Feess' ruling states that although the two works are similar and tell the same story, the events involving the crash, and the events that preceded and followed, are all matters of public record that cannot be copyrighted.

The judge used the precedent determined in the 1991 case Feist Publications, Inc., v. Rural Tele. Serv. Co., in which the Supreme Court ruled that copyright protects only an author's original expression and not historical facts or events which means, "the fact/expression dichotomy limits severely the scope of protection in fact-based works."

According to the order, Novak and Witek produced a fact-based narrative that recounts, in a historically accurate way, what happened before and after the 1970 plane crash.

The defendants produced a dramatic recreation of the events that, though based on the historical record, does not used Novak and Witek's expressive elements and makes no pretense of being historically accurate, the order says.

The suit also named Thunder Road Film Productions, Legendary Picture Films, Wonderland Sound and Vision, Cory Helms, Jamie Linden, Mary Viola, Basil Iwanyk, McG and others as defendants.

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