by Thomas B. James, copyright attorney at the Law Office of Tom James in Cokato, Minnesota
It is black letter law that copyright only protects expression. No one can claim a copyright in facts. As long as you use your own words, you are free to repeat factual information that someone else has reported, even if the report is protected by copyright.
What happens, though, if the information you copy, although purportedly factual, turns out to be fictional?
Logically, you might think that the copying could be infringement In some cases, depending on what and how the material is copied, it might be. Under the copyright estoppel doctrine, however, copying material that the author/publisher represented to be factual is not infringement even if the purported facts are not true.
The Ninth Circuit recently had occasion to expound upon 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 The plaintiff claimed that various scenes in the play were copied from the unpublished autobiography.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, the judge ruled, they were not protected by copyright.
On appeal, the plaintiff argued that the copied scenes included embellishments that were not historical facts. 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 actually true or not, the Court ruled. Under the doctrine of copyright estoppel, which the Court renamed “the asserted truth doctrine,” neither actual facts nor material that is presented as factual are protected by copyright.
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Copyright estoppel is a well-established copyright defense. It holds that if an author represents a work to be factual, or historically accurate, then he or she cannot later claim, in court, that the work, or parts of it, are fictional. 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.
Because the term estoppel is bound up with the concepts of culpability and detrimental reliance, the Court decided the term does not accurately reflect the nature of the defense in copyright law. 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. It is enough to show, simply, that the author intended readers to think the work was factual.
Published vs. unpublished works
Because a showing of detrimental reliance is not necessary, it does not matter if the work is published or unpublished. The pertinent question is simply whether the material, as written, purports to be factual.
Truthfulness as a literary device
Sometimes a work of fiction will be 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. Orson Welles gained notoriety for using truthfulness as a literary device in his radio play, “War of the Worlds.” He told the fictional story through a series of what sounded like actual news broadcasts. Fictional works that use truthfulness as a literary device do not come within the meaning of “purported facts.”
The question in all cases 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 to the effect that it was just a fictional story made up for entertainment purposes. It was not presented as fact.
The Court correctly 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 being abducted by aliens, for example, may be repeated without fear of copyright infringement liability. The pertinent question is not whether the information presented in a work is, in fact true. What matters is whether it is presented as a true statement of fact.
Corbello is only precedential in the Ninth Circuit. Nevertheless, because it builds logically upon a cogent exposition of the asserted rights doctrine (nee copyright estoppel), courts in other jurisdictions are likely to consider it persuasive.
The key take-away: Copyright protects expression, not ideas, facts, or purported facts.