(Copyright 2021 Thomas B. James, Law Office of Tom James) 

As most people know, copyright only protects expression. It does not protect facts. Though some have tried, no one can claim ownership of reality. What this means, from the standpoint of copyright law, is that you are free to repeat factual information that someone else has reported, even if the report is protected by copyright. Since expression is protected by copyright, however, you have to use your own words.

What happens, though, if the information you copy, although purportedly factual, turns out to be fictional?

Logically, you might think that since it is fictional, it is protected by copyright, so copying it could be infringement  In some cases, depending on what and how the material is copied, copying it could very well be infringement. Under the copyright estoppel doctrine, however, copying material that the copyright owner represented to be factual is not infringement even if the purported facts turn out to be untrue.

The Ninth Circuit recently had occasion to address this principle.

Corbello v. Valli

Corbello v. Valli et al., Case No. 17-16337 (9th Cir., September 8, 2020) was a copyright infringement suit brought by the estate of a co-author of an autobiography of Tommy De Vito, one of the original members of the Four Seasons. The work was never published. De Vito, however, gave a copy of it to Frankie Valli. Valli was working on Jersey Boys, a Broadway play based on the band’s history. The plaintiff claimed that various scenes in the play were copied from the unpublished autobiography.

After trial, the jury found that infringement had occurred. The judge, however, entered judgment as a matter of law for the defendants, holding that the alleged infringement involved historical facts. As such, they were not protected by copyright.

On appeal, the plaintiff argued that the copied scenes included fictional embellishments. As such, counsel argued they should be treated as fiction rather than facts. The Court disagreed. It didn’t matter if the scenes presented in the autobiography were true or false, the Court ruled. Under the doctrine of copyright estoppel (which the Court renamed “the asserted truth doctrine"), neither actual facts nor fictional material that is presented as factual are protected by copyright.

Copyright Estoppel

Copyright estoppel is an established copyright defense. It holds that if an author represents a work to be factual or historically accurate, then he or she cannot later to heard to claim that it is not. The principle is predicated on the idea that readers of purportedly nonfiction works should be entitled to rely on the author’s representations about the truthfulness of the matters asserted in them.

Asserted Truths

Because the term estoppel is bound up with the concepts of culpability and detrimental reliance, the Court believe that the term does not accurately reflect the nature of the copyright defense. In copyright law, a defendant may invoke the defense without having to make a showing that the author intended to make a false representation on which other people would rely. It also is not necessary to prove that any particular person was actually deceived or detrimentally relied on the author's representations. It is enough to show that the author intended readers to think the work was factual.

Published vs. unpublished

Because a showing of detrimental reliance is not necessary, whether a work is published or not does not matter. The relevant question is simply whether the material, as written, purports to be factual.

Truthfulness as a literary device

Sometimes a work of fiction is presented in what looks like a traditional nonfiction format. A short story writer, for example, might choose to tell the tale through a series of imagined newspaper articles. A screenplay might include a scene where a fictional news anchor reports a plot development as if it were a breaking news story. The most famous/notorious example of this is Orson Welles' radio play, "War of the Worlds." Fictional works that use truthfulness as a literary device do not come within the meaning of “purported facts.”

It all starts to sound complicated, doesn't it? All it really comes down to, though, is how the work, taken as a whole, is presented. Although many people mistook Welles’ play for actual news broadcasts, he included multiple disclaimers during the broadcast letting listeners know it was just a fictional story made up for entertainment purposes. Although a lot of unalert listeners mistook it for fact, it was neither presented as fact nor intended to be taken as true.

Incredible facts

The Court in Corbello observed that material may be excluded from copyright protection when it is presented as factual even if people are not likely to believe it. The alleged “facts” reported in a  purportedly autobiographical account of an alien abduction, for example, may be repeated without fear of copyright infringement liability. The pertinent question is not whether the information presented is actually  true.  What matters is whether it is presented as a true statement of fact.

Conclusion

Corbello is only precedential in the Ninth Circuit. Nevertheless, because it builds logically on a cogent exposition of the asserted rights doctrine (known in some other jurisdictions as copyright estoppel), courts in other jurisdictions are likely to consider it persuasive.

Bottom line: Copyright protects expression, not ideas or facts. In some cases, copyright also might not protect false representations that are presented as if they are true. 

Brought to you by Thomas James at the Law Office of Tom James.