Creative Facts Not Afforded Copyright Protection
June 14, 2021
By Martin Brandsma and Tamara Céline Winegust
The Federal Court of Canada recently confirmed the longstanding principle that facts are part of the public domain and free to use by all—even when they are later claimed to be made up. In Winkler v. Hendley, 2021 FC 498 (“Winkler”), Justice McHaffie determined that historical facts held out as true are not subject to copyright protection, regardless of their objective truth. The author’s (and publishers’) plausible assertions for nearly 70 years that the historical facts and events presented in the author’s book were true and based on “unimpeachable sources”, was sufficient to allow the Court to find they were not protected by copyright—regardless of their objective historical truth and the Plaintiff’s claims that some of the “facts” were the author’s own creations. Consequently, the Defendant’s copying of (untrue) facts for his own book based on the same events did not amount to a taking of a “substantial part” of the original portion of the Plaintiff’s work and was not copyright infringement.
Winkler comes five years after Maltz v Witterick, 2016 FC 524 (“Maltz”) in which the Federal Court also considered copyright infringement of a non-fiction work. In Maltz, Justice Boswell found an author’s fictionalized telling of a Polish women’s efforts to rescue a Jewish family during the Holocaust did not infringe the copyright in a documentary recounting the same person’s story. There, the Court found no substantial taking or use by the Defendants of anything owned by the Plaintiffs because “the use of common historical facts is not copyright infringement”. In Winkler, Justice McHaffie relied in part on Maltz, and came to essentially the same conclusion.
Taken together, Maltz and Winkler suggest an emerging trend of Courts providing works that represent their content as historical truths with very narrow copyright protection. They suggest that fiction writers and academics need not avail themselves of “fair dealing” to defend their copying of purportedly true factual information from secondary sources (i.e., sources that are not the historical record itself), even if those sources may be original works subject to copyright protection in their own right. Importantly, however, neither of these cases forecloses the availability of concerned plaintiffs successfully advancing other causes of action—for example, a misappropriation of personality or privacy torts, defamation, or contract claims—when the facts of their life story (or those of another person) has been told by another without authorization.
The claims in Winkler related to a 19th century event involving the Donnelly family in the town of Lucan, Ontario. The Plaintiff Winkler—the heir of P. Kelley, the author of a 1954 book, The Black Donnellys and a sequel book, Vengeance of the Black Donnellys from 1962—claimed the Defendant, Hendley—the author of a 2004 book, The Black Donnellys: the Outrageous Tale of Canada’s Deadliest Feud—and Hendley’s publisher, infringed Winkler’s copyright by copying events described in the books, as well as creative embellishment of those events and story-telling style. The 1954 book had been sold for many years as “non-fiction”, and was marketed by the author and publishers as a true historical account based on “unimpeachable sources”. In the course of the present litigation, Winkler advanced claims that some of the information and events described in Kelley’s books contained were not drawn from history; rather they were inventions of the author—including the phrase “The Black Donnellys” itself—or were embellishments or details invented by the author to fill in details absent from the record. In dismissing Winkler’s claims, Justice McHaffie emphasized that the original books were treated and marketed as “true crime” and fact for over six decades—and not as historical or biographical fiction.
The decision was rendered in response to the Plaintiffs’ motion for summary judgment for copyright infringement, and the Defendants’ motion for summary judgement to dismiss the case.
No Copyright Protection for Facts or Matters Held Out as Facts
In Canada, copyright subsists in every “original” work of which the author is a citizen or resident of a treaty country. An “original” work is one that involves the exercise of skill and judgement and is not simply copied from another work. The Copyright Act makes no distinction between the protection of an original literary work of fiction or non-fiction. However, it is generally accepted that copyright protection does not extend to facts or ideas. Instead, it protects the original expression of those ideas. Because facts are not protected by copyright, Courts have not considered them to be part of the “original” portion of a work.
When assessing infringement, it is first necessary to consider the scope of the copyright at issue, as a defendant cannot infringe in ways that do not fall under copyright protection (i.e., using a fact is not an infringement of copyright). For works of non-fiction, copyright subsists in the particular means, method, and manner in which the facts are presented in the work (e.g., the selection and arrangement of the facts), rather than the underlying facts themselves. As noted by the Court in Winkler, this originality may include the structure, tone, theme, atmosphere, and dialogue of the work (Winkler, para. 54).
In Winkler, the Plaintiffs’ principal argument was that the Defendants infringed copyright by including certain facts and events in their book that were not objectively true (even though they were presented as such in the original book). Such untrue “facts” were therefore, original works, and protected by copyright.
The Court rejected the Plaintiffs’ argument outright. It noted that the 1954 Book was continuously published as non-fiction throughout its 67-year publication history. Moreover, it pointed to evidence showing the 1954 Book was not presented as a work of historical or biographical fiction, but instead as a “true crime” story (including the author’s own representations as to the “truthfulness” of the book in its introduction).
The Court concluded it did not need to determine whether each fact asserted was historically untrue—the author’s plausible assertions that the facts were true was sufficient to find they were not protected by copyright. Importantly, the Court devoted a fair portion of the reasons to discussing the history and policy behind the principle that copyright does not extend to “facts”.
In doing so, it recognized the pitfall of attempting to use copyright as a tool to dictate what version of history is “true”, and that not every work of history depends solely on research confirmed through primary sources, nor should it have to: “there is value in the ‘encouragement and dissemination‘ of [non-fiction stories that are designed to appeal to our sense of drama and human interest, rather than act as academic treatises] that would be hindered if the authors of such works were required to effectively confirm the veracity from primary sources of every fact presented in a non-fiction narrative before being able to rely on the author’s statement that it is true”.
For the Court, this approach also respected the user-creator balance underlying Canadian copyright law. All these factors lead the Court to conclude:
where an author presents a work as historically factual, they cannot complain in a copyright infringement action that a subsequent author has taken them at their word and relied on the facts they presented as being true. In other words, an author cannot seek to disprove their own historical account and thereby purport to claim copyright over the “facts” contained in it on the basis that those facts are not true.
Consequently, the Defendant author in Winkler was entitled to consult the Plaintiffs’ book as a historical source, and to use that information to prepare his own work on the subject.
Having found no copyright in the facts themselves, the Court assessed whether there was any infringement of the passages claimed by the Plaintiffs based on other elements, including the structure, tone, theme, atmosphere, and dialogue. Although the Court found a few of these elements in the Defendants’ book, the Court found any similarities in phrasing or characterizations were not particularly important or original aspects of the 1954 Book or diminished its value. Rather, it told the same historical tale in a different way.
Of note, the Court’s approach to the 1962 sequel was slightly different, as that book had always been presented as a fictional “ghost tale”. While the Court found the Defendant author’s inclusion of a fictional character from the Plaintiffs’ 1962 book did amount to a non-literal copying of a passage from that book, in the context of the 1962 book as a whole, it did not amount to a “substantial part” of the original work, and thus was not infringing.
Winkler may be the first Canadian case to discuss a work of “non-fiction” later claimed to be “fiction” by the (albeit subsequent) copyright owner. It shows that an author cannot seek to disprove their own historical account and claim copyright over the facts contained in it on the basis that those facts are not true. The Court’s reliance on the author’s own representations about the 1954 Book (i.e., non-fiction vs. fiction), appears to have fundamentally affected the Court’s analysis. It suggests that creators should be mindful how they choose to present and characterize their works to protect their copyright interests. Where an author holds matters out as facts—even if those facts are subsequently found untrue—copyright protection in the underlying work relates to the expression of those ideas. Purported facts, ideas, and themes themselves cannot be monopolized.
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