Welcome to the suck

The movie Jarhead opened this past weekend to a healthy $27.7 million take and mixed reviews. One person that caught the flick was Joel Turnipseed (actual name!) of Minneapolis. Mr. Turnipseed is a former Marine himself and was more than a little surprised to see portions of his Gulf War memoir, Baghdad Express, brought to life on the screen. Suprised because Jarhead is based on Anthony Swofford's Gulf War memoir, not Joel's. Complications, as they say, are ensuing. The operative phrase being "suing," although no action has yet been filed. The New York Times has the story to this point.

I guess Joel doesn't appreciate how much an aspiring screenwriter would love to see anything he/she has written brought to life on the big screen. You're living the dream, Mr. Turnipseed.

I have not seen Jarhead. I have not read the book, or Baghdad Express for that matter. I have no idea whether his claims have merit or not. As an attorney who has handled intellectual property matters and worked on an actual copyright infringement case against a film company, however, I was surprised to see this quote from the screenwriter, William Broyles, Jr., in the Times article:

"I feel bad that he feels bad," Mr. Broyles said, adding that he had read and admired "Baghdad Express." "Maybe some of it stuck in my mind or maybe it was already there," he said.

This is the kind of statement that causes defense lawyers to utter an excited "WHAT?!" and start reading the client the riot act. Without getting into the subject matter too deeply, the two main elements of proof of copyright infringement are: (1) access; and (2) substantial similarity. A plaintiff must show that the defendant first had access to the copyrighted work and that the alleged-infringing work is substantially similar. The plaintiff does not have to prove actual copying. This is why, ostensibly, nobody in the industry will even open up an unsolicited work that is sent to them. No one wants there to be even a question of whether they had access to a work that is later said to form the basis for an infringement action. Of course, I doubt any executives are losing sleep over not having to read all of the spec scripts that get trashed as a result of this policy.

It seems to me, unfortunately for the well-rested executives at Universal, that Mr. Broyles has given some clear evidence of access for Mr. Turnipseed and his counsel. The question then becomes just how substantially similar are the alleged infringing passages. But if you're at that point in the analysis, you've already lost at least half the battle. There is also the question of damages, e.g., how much did the alleged infringement contribute to the value of the work, which is a whole other can of worms requiring (expensive) expert testimony. The lesson I think any screenwriter, aspiring or not, can take away from this is don't go talking to the New York Times about your creative process if a question about the source of your ideas arises. A terse "no comment" will suffice. Your attorney will likely thank you for it.