The Good Lie Lawsuit: Why the Lost Boys’ Copyright Claim Will Fail

Who Owns the Copyright in Your Life Story? Nobody.

There is, in my mind, a rebuttable presumption that earnest Hollywood movies are the equivalent of eating overcooked vegetables: you only watch them because they’re good for you, and most of the vitamins have been leached out. Thus, I’ve never watched The Good Lie, an earnest Hollywood movie about the “Lost Boys of Sudan,” who have a remarkable story no matter how you tell it.¹Another way to put people off is to market the movie as though it were really about the American agency worker, played by Reese Witherspoon, rather than about the Lost Boys themselves. Apparently, the marketing didn’t do the movie justice. It really is about the Boys.

The movie is really about the three men on the right, not so much about REESE FREAKIN’ WITHERSPOON.

The Good Lie gets my attention because it is the subject of an ambitious and astounding lawsuit filed last week in the Northern District of Georgia, which has a fascinating, if misguided, copyright angle. You can read the lengthy (but compelling) Complaint here. The plaintiffs are dozens of Lost Boys who had been interviewed by the early producers of the movie (whom we’re just going to call the screenwriters²Initial producers of a movie do a lot more than arrange for preparation of the script, eventually turning a germ of an idea into something that can be pitched to Hollywood producers.. Everyone allegedly knew that the interviews’ purpose was to help write a script, and everyone expected a movie to eventually be produced.

The Lost Boys were savvy enough not to give their life stories away for free, but the screenwriters didn’t have a lot of money. The real money would come later, but only after the script was written, which meant the interviews had to happen first. The Lost Boys did the best they could³Well, sort of. Putting in writing would’ve been better., allegedly extracting oral promises of upfront money and a portion of profits down the road. None of this was in writing, unfortunately.

The interviews took place. Dozens of Lost Boys were videotaped telling their life stories in response to questions put to them by the screenwriters.

The Magic of Joint Authorship

Most of the claims in the lawsuit relate to oral agreements that might or might not have been in place about who was to pay whom how much. But the most intriguing claim, and the one getting the most press coverage, is a copyright claim. It’s not quite a claim for copyright infringement⁴It ought to be a claim for “equitable accounting,” really.. It’s a claim that they are part owners of the copyright in the interviews, and as part owners—and this is a bit hazy—they are one way or another entitled to a share of the proceeds made by the movie.⁵Please do not read Count II of the Complaint as an accurate rendition of the applicable copyright law, because it gets about every other thing wrong. If the screenwriters are also joint authors of the interviews, they were entitled to exploit the interviews to make a derivative work, i.e., the screenplay. But, as explained below, they would have had to “account” to the other joint authors for their share of the proceeds.

The key copyright concept at play here is a “joint work.” When two or more people intentionally contribute to a single work, the work is a joint work. The upshot is that all of the contributors are “authors” of the work, and they share initial ownership of the copyright, regardless of the relative importance of their contributions. Thus, if there were two authors of a joint work, they would each own 50% of the copyright in the work, even if one did more work than the other.⁶You can contract around this. They would be co-owners of the copyright.
The other key concept at play here is that co-owners are (with one notable exception⁷The notable exception is that a co-owner can’t logically grant an exclusive license without the other co-owners’ permission.) permitted to exploit the copyright how they see fit, without permission from the other co-owners. But they have to “account to” the other co-owners, i.e., pay the other co-owners their share of any money made. Thus, if there were two 50–50 owners of the same copyright, and one owner licensed the copyright for $100,000, she’d own the other owner $50,000. But the other couldn’t complain about whatever deal the first owner struck, which is why last time I suggested sometimes it’s better to be a licensee than an co-owner of a copyright.

Becoming a joint author of a work isn’t quite as easy as it sounds. For one thing, although the contributions don’t have to be equal, courts are normally unimpressed with minor contributions. The intent element is also important. The authors don’t have to be actively collaborating, but they have to have some common idea what they’re producing. Thus, making a crucial suggestion or providing inspiration to an author doesn’t make you a joint author—it just makes you helpful (and/or a muse and/or a chump).

Here, I have no doubt that the Lost Boys are, at least⁸It’s possible they are the sole authors of the interviews, depending on how extensive questions were. There’s skill but not necessarily a lot of creativity in asking good questions., joint authors of their own interviews, but I doubt that gets them anything. Although they are responding to questions and are talking about facts—i.e., their own life stories—they choose their words, they choose what to include and what to leave out, and so forth. Since the interviews were videotaped, that makes them “fixed in a tangible medium.”

Your Work Is “Derivative,” But in the Nicest Possible Way.

Interviews aren’t screenplays, but the Lost Boys’ lawyers seize upon the concept of “derivative works.” As copyright owners of their own interviews, the Lost Boys share the exclusive right to make “derivative works” with the screenwriters; i.e., only the Lost Boys and the screenwriters are permitted to make derivative works of the interviews or to authorize others to do so.

And…? Well, here the Complaint gets muddled. The Lost Boys seem to say that they accordingly own a portion of the copyright in the screenplay, or that the screenplay (and ultimately the movie) infringes the copyright in the interviews, but neither view is correct. It would be more correct to say that, the Lost Boys are accordingly owed their proportional share of any money the screenplay brings in, as co-owners of the copyright in the works on which the screenplay was based.

But all that assumes the screenplay is a derivative work of the interviews in the first place, which it almost certainly is not. “Derivative work” is defined as a work “based” on a preexisting work, but uses “based” in a very narrow way. It’s meant to include adaptations, translations, abridgments, editorial revisions, and so forth. It’s not meant to include merely relying on a preexisting work. Otherwise, it would be impossible to, for example, write a biography while making reference to the subject’s diary or letters; or to write a journalistic profile after interviewing the subject.

If Copyright Doesn’t Protect Facts, How Do You Protect Your Life Story?

In addition, the Lost Boys have a fundamental problem with their copyright claim (no matter how they couch it): copyright doesn’t extend to the facts contained in the interviews. Copyright protects only original, creative expression, not facts. From my reading of the Complaint, it appears that the screenwriters stuck exclusively to the facts divulged by the Lost Boys in the interviews and not to the Lost Boys’ expression. In short, the screenwriters—or anyone else, for that matter—were free to mine the interviews for factual content.⁹What if one of the Lost Boys made up some episode of their life, and that episode found its way into the screenplay?

For example, the screenplay and the movie both include a scene where one of the Lost Boys becomes sick from eating the unfamiliar Western food on the airplane as emigrates to the United States. This story, apparently, is taken from one of the interviews, and, without the interview, the screenwriters would never had thought to include it. But that story is also a fact—a thing that actually happened—and anyone has a right to re-tell that story using their own words.

This immediately strikes us as unfair because these facts aren’t like other facts. They’re highly personal to each Lost Boy, and in every sense except legal, they “belong” to the teller. It may seems wrong to mine other people’s lives for facts so one may enrich oneself (or, at least, private, non-famous people’s lives), but that’s a wrong that copyright law does not right.

People can and do sell their “life stories” to writers. In those cases, copyright isn’t really the operative law. The operative law is a kind mishmash of publicity-rights and trade-secret¹⁰Even though your life story isn’t related to a “trade,” it does gain economic value from being secret, and even if bits of it are known to others, you are still the most efficient source of facts about your life. laws. Those laws can protect facts, unlike copyright law, but I wouldn’t rely too heavily on them. Publicity rights aren’t for everyone (literally), and trade-secret protection tends to evaporate the moment you actually share your story with the potential author (unless you take strong steps to prevent that).

What Malcolm X, “Moms” Mabley and Al “Spawn” Simmons Tell Us About Joint Authorship

A more intriguing theory the Lost Boys could pursue is that they are joint authors, with the screenwriters, of the screenplay itself. All parties knew that the interviews’ purpose was to help write a screenplay. The Lost Boys gave those interviews knowing they were contributing to a screenplay.
Alas, this theory would fail, too. The main problem is that the Lost Boys could only control what they said in their interviews, but they had no say over what portions of those interviews, if any, went into the screenplay. In the end, creative control remained with the screenwriters.

Consider the lawsuit over Spike Lee’s Malcolm X, Aalmuhammed v. Lee. Lee had hired Aalmuhammed as a consultant about Islam, which was important because Lee wanted to emphasize Malcolm X’s conversion to Islam. According to Aalmuhammed, he contributed two entire scenes and translated a good deal of Arabic into English for use in the movie. He argued he was, therefore, a joint author of the movie. Despite all of these contributions, however, the court concluded that the movie was, from beginning to end, a Spike Lee joint. Lee exercised creative control over the movie as a whole, including whether or not to take Aalmuhammed’s advice or use the scenes Aalmuhammed allegedly created.

That’s not all. The Lost Boys would still have the problem that their contributions are, essentially, factual. Most courts, however, require that, to be a joint author, your contribution has to be, by itself, copyrightable. Their case would, thus, not be much different from the dispute “Moms” Mabley case, Childress v. Taylor. In that case, an actress who had become fascinated with the comedian “Moms” Mabley¹¹And who wouldn’t? prevailed upon a playwright to write a play about the comedian’s life. The actress didn’t write the play, but she provided reams of research and lots of creative advice to the playwright. The actress still wasn’t a joint author of the play, however, because her contributions—mostly factual research—were not copyrightable. Facts aren’t copyrightable, remember?¹²There may be exceptions to this rule. In one of the geekiest cases of all time, Gaiman v. McFarland, writer Neil Gaiman claimed ownership of several characters in McFarland’s Spawn comic book series. Gaiman had written the scripts that introduced those characters, but one of the character was, at that stage, only a “stock character” (a surprisingly knowledgeable wino), which isn’t by itself copyrightable. But it was also true that once McFarland penciled in the character, it was copyrightable. Writing for the Seventh Circuit, Judge Posner—who has something of a history of off-beat copyright decisions—held that Gaiman was a joint author of that character, but he carefully cabined this holding by emphasizing the illustrative nature of the character, contrasting it with merely literary descriptions of characters. The only difference between that case and this one is that Lost Boys provided factual autobiographical information, rather than biographical information. But that’s not really a distinction in copyright law.

One really roots for the Lost Boys to win here. They didn’t have to tell their life stories, and they have to watch others profit from them. Although the events of your life are facts, you were still the person who had to live those events—and in the case of the Lost Boys, those events were harrowing indeed. But copyright law just isn’t very protective of life stories. The Lost Boys’ theory of joint enterprise and oral contracts would seem to stand a better chance.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.