Copyright case examines the issue of history repeating itself

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John Simpson
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By Tony Poland, LegalMatters Staff • It has often been said that one cannot rewrite history but that is not necessarily the case when it comes to copyright law, says Toronto intellectual property lawyer John Simpson.

Simpson, principal of IP and new media law boutique Shift Law Professional Corporation, says that fact is borne out in Winkler v. Hendley, a Federal Court decision dealing with two books based on the infamous “Black” Donnellys, whose ongoing 1880s feud with neighbours in Lucan, Ont., led to bloodshed and murder.

Heirs of Thomas P. Kelley claimed that Nate Hendley’s 2004 book The Black Donnellys: The Outrageous Tale of Canada’s Deadliest Feud infringes copyright in Kelley’s 1954 book,The Black Donnellys and its sequel, Vengeance of The Black Donnellys.

The suit alleged Hendley copied Kelley’s “fictional events, his creative embellishments of historical events, and his cinematic story-telling style.”

While Hendley and his publisher, James Lorimer & Company Ltd, admitted using Kelley’s books along with other sources, they successfully argued that Kelley’s original The Black Donnellys was published as a true crime novel and that the “facts” it recounted are not subject to copyright protection. The judge in the case agreed.

‘Copyright only protects original expressions’

“Copyright only protects original expressions, which require skill and judgment to create so it does not protect historical facts,” Simpson tells LegalMattersCanada.ca. “The key takeaway in this decision and that I expect will be cited in the future is that original expressions will not be protected by copyright when they are presented as plausible assertions of fact.

“The judge ended up basically saying if you write something fictitious and you hold it out as factual, then effectively it becomes history because that’s all history ever is – what people present as fact even it turns out to be fiction.”

Simpson explains that while the Copyright Act protects expression rather than facts or ideas, that protection is not limited to the specific words used but extends to “literal and non-literal” copying. “Original expression extends beyond the words, phrases and paragraphs. You cannot appropriate the creator’s characters and the overall story in a work of fiction and just tell it in a different way.”

Similarly, while historical facts are not protected by copyright because they’re not original creations, the expression of those facts is, he says.

“In other words, you cannot just take a very well-written history book and copy it. The author has used skill and judgment to write it,” says Simpson. 

In his ruling, Justice Nicholas McHaffie writes he agrees “with the defendants that an author who publishes what is said to be a nonfiction historical account cannot later claim the account is actually fictional to avoid the principle that there is no copyright in facts.”

Book was presented as a true historical account

“Having presented the Donnellys’ street battle and other facts and events as a true historical account based on ‘unimpeachable sources,’ Mr. Kelley could not later assert that he was not to be taken at his word,” McHaffie writes. “The principle that there is no copyright in facts is one of long-standing.”

The court found that Kelley’s book was “not presented as a work of historical or biographical fiction” but as a true story.

“This assertion of truth is backed up by a number of statements made by the author in the book. At the conclusion of the Introduction, dated April 1953, Mr. Kelley states: “The material for the following pages was gathered from old newspapers, police and court records, as well as other unimpeachable sources and by several trips to the Lucan area,” McHaffie notes.

He says he reviewed both books as a whole, “including elements such as the structure, tone, theme, atmosphere and dialogue.”

“On my assessment, few of these elements as represented in The Black Donnellys were copied in The Outrageous Tale, either in terms of quantity or, more importantly, quality,” McHaffie writes.

Plaintiffs argued against ‘true crime’ designation

The plaintiffs also argued against the “true crime” designation saying that “claims of truth may themselves be used as a literary device” citing Gulliver’s Travels and The Blair Witch Project as examples of so-called true stories that a reasonable reader would not take as fact.

“I found this argument interesting and creative. It is almost like something you might see in a creative law school exam,” says Simpson. “But the difference is that in those cases everyone knows that they’re not true stories. Those are implausible assertions of fact. Ultimately, it’s not whether something is fact or fiction, it’s about how it’s presented.”

He says if Kelley had presented the book in a different way instead of as a “true crime” story containing information gathered from “unimpeachable sources,” his heirs’ argument may have been successful.

In such cases, Simpson says an author should include a disclaimer in the publication, stating that it is a work of fiction.

In the end, the decision was the right one, he says.

“It wouldn’t be fair and it wouldn’t be sensible if it had gone the other way,” Simpson says. “It would expose all sorts of historical writing to this debate.