Why Are You Paying For Factual Works?

I have several clients that have paid dearly for the film rights to various nonfiction works, including articles and books (“Underlying Factual Works”), often paying for multiple sources to anyone that wrote anything on the topic. I have argued against this practice, since facts cannot be copyrighted, so there is no need to pay to use factual information in a film as long as you don’t copy the “expression” of the Underlying Factual Work, such as following too closely the narrative storyline it uses. The only issue that gave me pause was how to discern fact from fiction in case the author of the Underlying Factual Work took liberty with the facts and wove in some fictional elements, notwithstanding calling the work factual.

This issue was just resolved in the Ninth Circuit (which includes California) by an important case (Corbello v. Valli, which dealt with the Jersey Boys play) that held that if the author of a work presents the work as factual, they are estopped from later arguing otherwise to make a copyright claim that someone used fictional elements from the work in a film. The court basically told the author, “You made your bed, go lie in it.” This approach limits the author of a purportedly factual work to a copyright claim that someone copied the “expression” of the work, such as the storyline, which is a much tougher case to make and will almost always fail unless the Underlying Factual Work has a unique approach (such as a reverse timeline) that is copied in the film. It will be almost impossible to make this claim if both the Underlying Factual Work and the film simply follow a linear timeline.

  So go ye forth and use all the Underlying Factual Works you want to make all the films you want with impunity. And book authors, if you want to preserve a copyright claim, you might want to include this disclaimer on the cover: “This book includes fictional elements that are inspired by a true story,” although that disclaimer might not play so well in a newspaper article.

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