Novel May Have Infringed Non-Fiction Book

November 9, 2002

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Novel May Have Infringed Non-Fiction Book

It is well established under copyright law that historical facts are not copyrightable. Facts, ideas, themes, subject matter and titles are inherently not eligible for copyright protection. Thus, a novelist can freely borrow facts from encyclopedias, newspapers and other source books and incorporate these facts in his own a fictional work. Moreover, actual quoted comments from third parties should not be copyrightable since they are not original to the author -- and originality is one of the requirements for copyright protection. An interesting case brought in Utah, however, has resulted in a ruling that the author of a non-fiction book might have a claim against a novelist who borrowed information from his work.

The Plaintiff was a W.W. II veteran who wrote a memoir about his experiences including participating in the Bataan Death March. The defendants are Dean Hughes the author of the "Children of the Promise" series of novels and his publisher. The novels portray the life of a Mormon family. A portion of one novel closely follows the Plaintiff’s actual experiences as told in his non-fiction book.

The federal district court granted defendants motion to dismiss because a non-fiction book is entitled to minimal protection under copyright law, and because the novel borrowed only unprotected facts. But the Court of Appeals reversed, and sent the matter back to the trial level.

The Appellate court said that while “supersubstantial similarity” must ordinarily be shown in infringement cases based on borrowing from factual compilations, such as telephone directories, the non-fiction book here contained more creative effort and original expression. Therefore, the appropriate standard that should have been used by the lower court was “substantial similarity.” The court noted that both books contained identical scenes, and the novelist had borrowed the actual remarks of persons as quoted in the non-fiction book. While borrowing such third-party quotes would usually not be a basis for copyright infringement (because third party quotes are not original to the book author), the court reasoned that the quotes here were more likely paraphrased remarks. The court noted that the author did not contemporaneously record the actual words spoken, and thus the quoted material is more likely to be the author’s expression based on his recollection of what others said, rather than the actual words that were spoken.
Jacobsen v. Deseret Book Co., 287 F.3d 936, 2002 U.S. App. LEXIS 7351 (10th Cir. 2002).

Mark Litwak to Speak at the Deep Ellum Film Festival
I will be presenting a special workshop on November 16, 2002 at the upcoming Deep Ellum Film Festival in Dallas, Texas. The three-hour seminar explores how independent films are financed and distributed. Topics include financing via pre-sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross-collaterization and creative accounting. Particular attention is paid to how producers and filmmakers can protect themselves by watering down warranties, getting added to the E & O policy, using lab access letter to retain possession of the negative, utilizing termination and arbitration clauses.
Details: Admission $20Deep Ellum Film Festival HeadquartersSaturday, November 16, 2002 from 2:00 pm to 5:00 pmLimited to 50 peoplePlease RSVP to Workshop@def2.org include name, phone numbers, and address
I will also be participating in a panel discussion on November 17 at 11:00 AM on “Film Distribution... I've made a film, how do I sell it?" This panel explores the many facets of independent film distribution, and how an independent filmmaker can better his odds.Deep Ellum Film Festival: http://www.def2.org