Utah Filmmaker Lobbies 10th Circuit to Revive ‘Nightcrawler’ Suit

DENVER (CN) — A Utah filmmaker asked the 10th Circuit via teleconference on Thursday to revive his copyright claims over the 2014 suspense film “Nightcrawler.”

In 2008, independent filmmaker Richard Dutcher released “Falling,” a feature film about a Mormon living in Los Angeles who loses his moral compass as he works as a stringer — a freelance filmmaker specializing in gathering gruesome footage for local television news. 

Dutcher sued Bold Films, Open Road Films, NBCUniversal Media, and Universal Studios Home Entertainment in 2015 alleging their movie “Nightcrawler” — starring Jake Gyllenhaal as a stringer in L.A. — contained striking similarities to his film. 

In August 2019, one month before the case was scheduled to go to trial, U.S. District Judge Dee Benson dismissed the case.

“[T]he court determined that no reasonable jury could find that ‘Falling’ is substantially similar to ‘Nightcrawler,’” ruled Benson, an appointee of President George H.W. Bush.

Stephen Silverman, an attorney for Dutcher, argued Thursday that the issue of infringement should be decided by a jury rather than a judge.

“The primary legal issue in this case is whether originality is a question of fact or law in a copyright case,” Silverman said. Dutcher identified 47 scenes and 30 elements where he claimed “Nightcrawler”infringed on “Falling.” 

“It seems to me if there’s a copyright infringement here that means you have a copyright infringement in any film about a stringer,” countered U.S. Circuit Judge Harris Hartz, appointed by President George W. Bush. “The plots aren’t similar at all.”

In its brief filed with the court, Bold Films argues: “’Falling is about a lapsed Mormon missionary who experiences moral decline as a result of his job, struggles to hold his marriage together, and seeks religious redemption on his deathbed. ‘Nightcrawler’is about a murderous sociopath who makes amoral decisions, thrives in his job as the result of a soulless capitalist system, and ultimately succeeds because of his lack of a moral compass.”  

“They want a monopoly, but copyright doesn’t grant that,” argued attorney Jeff Hunt of the Salt Lake City firm Parr Brown Gee & Loveless on behalf of Bold Films.

“The court plays an important gate keeping role on summary judgment to fare out the unprotected material, which in this case is all of the stock elements that council recited that flow directly from the fact that these two protagonists are engaged in the occupation of the stringer,” Hunt said.

Whether the identified elements are copyrightable or stock elements remains unclear, Silverman reiterated on rebuttal.

“What defense council argued is their interpretation of the facts and it’s the jury to weigh disputes over the facts,” he said.

U.S. Circuit Judges Gregory Phillips and Nancy Moritz, both appointees of Barack Obama, rounded out the three-judge panel. It did not indicate how it will rule.

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