November 9, 2005

"The guy who says 'you stole my stuff' is always the jerk."

The movie "Jarhead" includes some stories that did not appear in the memoir "Jarhead." If those stories did appear in another memoir, do the moviemakers owe its author?
William Broyles Jr., the screenwriter and former marine who adapted Mr. Swofford's book for the movie, said that Mr. Turnipseed was confusing his own experience with the received wisdom of being a marine.

"The joke about the gas mask has been told 10,000 times," Mr. Broyles said by phone. "It is not his joke or mine."

Mr. Broyles admits that there are coincidences. But he says they are just that.

In [Joel] Turnipseed's book ["Baghdad Diary"], a colonel "burst onto the stage, grabbing the microphone from its stand while still in stride, like Wayne Newton doing Patton."

In the shooting script for "Jarhead," stage directions command that "Lieutenant Colonel Kazickis mounts a makeshift stage, grabbing a microphone in mid-stride like a Vegas M.C." What follows is a profanity-laced scene of call and response that is remarkably similar in both plot and language to the scene that follows in Mr. Turnipseed's book.
So are you with Turnipseed or Broyles on this one? Before you answer, compare how the two men express themselves.

Turnipseed:
"There is no way that I am going to come out ahead on this," he said. "The guy who says 'you stole my stuff' is always the jerk, but this is not something that is based on a scene I did; it is verbatim dialogue."
Broyles:
"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.

"I don't have any conscious memory of using anything out of his book," Mr. Broyles said. "I can remember reading it and thinking, this guy really has it down. It was one of those unintentional coincidences that is frustrating for him, but there has been no effort to take anything from him."
I'd say it's obvious that they need to give Turnipseed a lot of money right now. And have him sign a statement not to say anything more about your movie. Because when he talks and Broyles talks? Everyone likes Turnipseed. And tell Broyles to shut up about it too.

28 comments:

Bruce Hayden said...

I agree that they should buy him off. Otherwise, he is likely to find some Red State in which to file suit - assuming that it is, indeed, his material.

Why a Red State? Rumor is that this is another Holliwood anti-war movie, like Apocolypse Now, Platoon, etc., but released during a time of war with the implied purpose of undermining that war.

If that is the common wisdom, and, indeed, esp. if it is the truth, I can see litigation in a state supporting the war to be esp. dangerous to the makers of the film.

SWBarns said...

I think that Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177 (1976) covers this pretty well. It doesn’t matter if you remember or if you "don't have any conscious memory of using anything out of his book”; you still have infringed the underlying copyright.

One component that is overlooked is the doctrine of “scenes a faire” under which incidents, characters, or settings that are indespensible or standard are not copyrightable. A rough talking marines probably falls into this category, universal jokes and even urban legends about videos from wives probably fall into this category.

I haven’t seen the movie or read the book so I can’t give any input as to which side I come down on but when authors use phrases like “I don’t have any concious memory” it sounds like someone who has spoken with their lawyer.

SWBarns said...

And by the way, it is a bad sign that Bruce and I are the first to comment. It is an attack of the patent lawyers.

Ron said...

Let me break the patent lawyer string.
I am trying to write a novel(!). When people read some of my sections, they say 'it sounds like X book,' which is a book I haven't read. Perhaps this too paranoid, but I'm now deliberately not reading this book, until I finish so I don't have to deal with kind of problem!

At a certain level, this just gets to be nonsense.

Dave Schuler said...

If those stories did appear in another memoir, do the moviemakers owe its author?

Well, only if you actually believe in copyrights. Isn't it true that intent to violate is not required for the finding that the copyright has been violated?

This should be an interesting test for the film industry. I seem to recall that they've been fighting anything that looked like a violation of their own copyrights pretty aggressively.

Matt said...

Nope, no intent is required. Merely constructive access. If I publish a book and it sells one total copy, to my mother, I can sue someone who has written a similar book. Whether I'll win is complex--what it looks like Broyles and Universal are setting up is a "scenes a faire" defense, which might or might not work.

jinnmabe said...

This is Glenn Reynolds's chapter on plagiarism, and the appearance of it. In this situation, it looks like we have more than the appearance of it. Normally, I'm hesitant to claim plagiarism, but as Turnipseed said, with verbatim dialogue, you have a problem.

HaloJonesFan said...

Although "received wisdom" does indeed have a big part to play in this argument. The question is going to be whether Turpinseed can show that A: this wasn't just a piece of Marine oral history, and B: someone can independently corroborate his account.

But on the gripping hand...
"'I feel bad that he feels bad,' Mr. Broyles said, adding that he had read and admired 'Baghdad Express.'"

That's all for tonight folks, thanks for playing!

Matt said...

Having seen the movie and now being about halfway through the book of "Jarhead," two points are worth making:

1. I don't think the movie or the book are by design "pro-war" or "anti-war." They're just "war is." (Much as, saying, "Saving Private Ryan" was.)
2. The movie is a VERY loose adaptation of the book. Some big setpieces in the movie (the gas mask football game) are there, but others are apparently not, characters have been combined, and the like. (Notably, though the book is non-fiction, the movie contains the standard "no resemblance to any actual person..." disclaimer for fiction films, rather than the "fictionalized/combined" disclaimer for "based on a true story" film.)

PatCA said...

The movie is sinking, so perhaps they need the publicity?

In Hwood, the big debate is whether someone like Turnipseed wins or loses by asserting a claim. I would guess, lose.

I read in the LA Times something about the movie being about a "pointless" war. Do they insert this modifier automatically in front of every "war"? I thought 1991 was a legal war against Saddam's invasion of Kuwait.

Matt said...

Actually, the movie outperformed expectations, making 20M+ last weekend. And the "pointlessness" of war generally is made by the film--not that war is bad or good, but that 90+% of war (especially that war) was waiting, followed by more waiting, followed by still more waiting. It's a Pinter-esque sort of situation. One of the major point in the movie is that the lead character doesn't fire his gun (except in target practice) during the course of the war.

Undercover Christian said...

I saw the movie, enjoyed it, and didn't think it was particularly anti-war. There were definitely anti-war elements, but I think the filmmakers were too afraid of losing revenue to be overt about it.

One of the things that got on my nerves: In the movie they walk through a bunch of cars that have been bombed by the USAF. This strike actually took place during the Gulf War. The filmmakers fail (on purpose I think) to make it clear that the cars were full of Iraqi troops. Instead they made it look as if the USAF just bombed a highway full of regular civilians.

All of that said, I wouldn't be surprised at all if the writer plagarized Turnipseed. There were many seemingly dishonest elements in this movie (apart from anti-war things) that would make me question Broyles credibility.

jeff said...

Over on the milblogs, I've seen at least one comment that says that Marines who have either seen it, or read the book, call the guy a whiner.

dick said...

Jeff,

What I have seen on the milblogs is that he is not just a whiner, he is also a liar about his experiences. Men who served with him say none of what he is reporting happened and that he was in fact not even a very good marine when he was there. They have no use for him at all. They also complain that the movie is totally wrong in most of what it depicts as to what the forces would actually do. All in all not a good thing from their point of view. If you are going to purportedly make a movie about true events, then the movie should be true and not totally baseless.

Bee said...

Jeff,
Which guy do they call a whiner? Swofford?

Al Maviva said...

Swofford has always struck me as a guy who tries to wear the stereotype of the disturbed vet who isn't quite right, a good man caught up and destroyed by a bad system, etc. This could in part explain his literary darling status, it's an act that's probably easy to put over on people with no military experience, who hold the views of the military as a desparately bad place, and war as unremitting hell. I've seen a review, maybe it was Harpers or the Wash Post Review a couple years ago, describing Swofford's book and experiences as searing. Really? Searing? I found most of my six months in the sandbox with the Army's First Infantry Division to be somewhat boring, a bit absurd, and rather humorous when you think about all the funny little things that went on. It wasn't this grim, nihilistic experience that Swofford apparently had, it was a mostly upbeat existence, cheerful and good young guys training and waiting, doing some crummy details like burning human waste, coupled with a sort of grim resolve to do the job, even if it meant dying. I read some reviews over at Amazon, with some of these liberal freaks talking about desparate "lower caste" or "lower class" soldiers stuck in a bad situ, like Swofford's characters. Really? One of the guys in my squad was the son of two doctors. He deployed with a broken vertebra, because he didn't want to let down the unit. Another guy was the son of a judge, and bound for law school after his hitch. Along with a lot of fairly average middle class kids.

It wasn't happy happy funtime with Thurston Howell III, but you stick to your friends and you deal with it. It's not like life over there was a starkly draw soap opera for us, as it apparently was for Swofford. We just got along, and when we had chances to get forward on raids and patrols, guys volunteered and knocked out the missions. Man, we had some fun too, and although there was a month of fairly rough stuff with patrols and the big attack, and then two months of handling the starved, tortured and abused refugee flow, it wasn't some cradle-to-grave emotionally traumatic situation a la Platoon. The guys whose wives left them when they came home probably suffered bigger emotional blows then, than when they were on missions. Guys hugging each other before going into battle? I heard some "eff your mother" "not if I see her first" type banter, but nothing so earnest as Swofford describes. I don't remember anybody downing the unit or the Army either, other than the usual griping; we were proud to be in a distinguished unit in which so many brave men had fought and we very consciously hoped to live up their example and sometimes talked about trying to walk in some big footsteps made by undeniably heroic men. I guess that was rather earnest of us. A few guys I served with had a couple issues they worked through when we returned, but they were okay after a couple months, not exactly scarred for life by it, and those particular soldiers were in a really tough little fight that wiped out the mech infantry squad they were in, so we figured they were entitled to take a deep breath, and that their experiences didn't constitute an indictment of the unit, or the war, or "the whole corrupt system, man."

But Swofford comes back "seared" and all disillusioned after he didn't do any fighting, and writes a book pointing out how bad war is and how awful the Marines are? Weird dude, Swofford. A Marine friend of mine, a staff sergeant with two tours in Afghanistan amd just back from honest-to-God hard fighting in Western Iraq, went to see the film and walked out, saying it was bulls***. Maybe it's the difference between an angry lower enlisted guy, and a professional who has been "in" for a couple tours and made some rank. I don't know. But I do know that if I ever wrote a book about GW I it would mostly be a comedy, because that's what the military usually resembles, and war is no different.

I'm looking forward to seeing the movie and may read the book now it's back on the radar, but I'm not counting on getting anything out of it.

Synova said...

They've read it, or talked to someone who read it, and call the guy a whiner and vow *not* to see the movie.

I haven't seen a single movie review on the milblogs I read (which is far from all of them, of course.)

As to the copyright thing... I don't think that similarity could possibly be enough all by itself. Selling one book to your mother (or having a manuscript on your computer) isn't going to work unless you can show that the other guy had seen it. Right?

And then it's the verbatim stuff that matters. Plots and ideas and situations can't be copyrighted.

To the writer who's friends say your book resembles someone elses... you're probably smart not to read the other book until you're done, but at that point, write to the publisher and explain that you've got a completed novel that is similar to so-and-so's highly successful work in *these* ways and different in *these* ways and likely to appeal to the same audience base, would you like to see it?

Good luck.

Troy said...

Al Maviva...

Who do you think you are? We all know that military people are toothless white trash freaks from West Virginia who just got through making Ned Beatty squeal like a pig or urban black guys or poor latinos who are being forced to be cannon fodder for Halliburton and Big Oil.

Now back to reality... How do the Kossacks write that crap all day every day? It's tiring just pretending to be hateful and bitter.

Unfortunately I won't be giving Jarhead my hard earned dollars -- perhaps the book.

Oh! and thank you for your service -- sincerely.

wildaboutharrie said...

This reminds me of the Rolling Stones' song "Anybody Seen My Baby", whose refrain sounded a lot like k. d. lang's "Constant Craving". They gave her a credit and substantial royalties for inadvertantly appropriating her riff.

Broyles does not sound credible to me.

MD said...

Al Maviva, wow. I mean, wow. This is why I love comments sections on blogs - you never know what you're going to get.

I remember sitting next to a young guy (at a wedding) who was in the first Gulf War and I asked him about his experiences. "Didn't do much. Gotta blow up a lot of sh*t. That was cool." He was hilarious - low-key and pretty laconic. We mostly talked about his kids and his wife after that. Nice guy.

I tried reading Jarhead a couple years ago - a far cry from my normal chick-lit fare and the trying to be more 'edumacated' stuff like Balzaz (which is my current fascination, for some reason. That and chick lit. No accounting for taste). I couldn't read two pages of Jarhead, I got bored, but I figured that was because I just didn't 'get' being a young twenty-something guy in the military. I've read both positive and negative reviews of Swofford's book on milblogs, but mostly negative.

MD said...

How about Balzac, instead of Balzaz. And after the Armando-of-daily-kos comments on this blog, I was going to try so hard to avoid typos....

Bridget E. Wilde said...

As far as I can see, the strongest evidence for plagiarism (as opposed to drawing on general lore) comes not from the speech but from those script directions. It is easy to claim that speeches given by Marine officers follow a certain pattern naturally - harder to explain how Broyles' directions have paraphrased every element of Turnipseed's sentence.

{a colonel - paraphrased in article} = Lieutenant Colonel Kazickis

burst onto the stage = mounts a makeshift stage

grabbing the microphone from its stand = grabbing a microphone

while still in stride = in mid-stride

like Wayne Newton doing Patton = like a Vegas M.C.

This is easily a point Turnipseed's lawyers can use as a springboard to argue that the speech that follows is specifically derived from Turnipseed's work, rather than coincidental.

It won't hurt their case that Broyles has admitted to having read Turnipseed's book, thereby satisfying their need to prove that he had access to the work.

amba said...

Balzaz will do it for you any day -- he's so full of pizzazz.

Matt said...

That sentence, though, strikes me as almost exactly the sort of thing the "scenes a faire" doctrine is made for. What military movie doesn't feature a swaggering officer giving a big speech on a stage?

MaryGinder said...

Anyone else picturing John Turturro in 'Secret Window" showing up at the door and very creepily saying
"You stole my story"?

DRJ said...

Is this the same Bill Broyles who was founding editor of Texas Monthly magazine? (http://www.library.txstate.edu/swwc/archives/writers/broyles.html)

MD said...

Yikes, re-reading my comments I feel a need to clarify something - the guy I talked to who was in the first Gulf War was clear he wasn't involved in combat and so when he said he 'blew stuff up,' he was talking about some kind of training or excercises? Anyway, I was re-reading parts of Jarhead after this thread-conversation and it struck me again how much the book had more to do with the author's general, shall we say, emotional malaise, than anything else.

Tim Worstall said...

Just a thought here (I’ve not read either book, am not a lawyer and certainly won’t be seeing the movie)but if Turnipseed didn’t invent the scene, if it really is a verbatim account of an actual happening, then how is it his copyright?

Be a bit like a reporter claiming copyright on the President’s speech.

Also, all the movie makers need to do is find someone else who wasthere and claim they got it from him.