Appeals court affirms 'We Are Marshall' copyright ruling

By Kelly Holleran | Jul 19, 2010

PASADENA, Calif. -– Producers of the film "We Are Marshall" did not infringe on copyright laws as alleged by the makers of the documentary "Ashes to Glory," judges for the U.S. Court of Appeals for the Ninth District found.

The opinion filed July 15 affirms the U.S. District Court for the Central District of California's finding that "Ashes to Glory" producers Deborah Novak and John Witek had insufficient evidence to prove that "We Are Marshall" contained significant similarities to the Emmy Award-winning documentary.

"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," the opinion says. "Having reviewed the two works ourselves, we agree with the district court that the works are not substantially similar."

Although coinciding facts form the basic plot lines of both productions, copyright laws do not protect historical facts, the court found. Therefore, producers of "We Are Marshall" legally could use the same facts as those found in "Ashes to Glory" in their film, the judges opined.

In addition, the Court of Appeals ruled that Novak and Witek did not enter into a contract with Warner Brothers as the plaintiffs alleged in their complaint and appeal.

In their complaint, Novak and Witek said a Warner Brothers representative contacted them in November 2003 about making a feature film of the same name.

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.

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.

However, the Court of Appeals found that the contract was never completed and, in turn, is not valid.

"The evidence conclusively establishes that, when negotiations broke off, the parties had not reached agreement on the purchase price," the opinion says. "'The failure to reach a meeting of the minds on all material points prevents the formation of a contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract."

Novak and Witek filed their suit in June 2007 in the U.S. District Court for Central District of California, claiming copyright infringement, breach of contract and unfair competition.

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

U.S. District Court case number: 2:07-cv-4000

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