Q. May I use another author’s interpretations of historical events in my novel?
A. This question can be important to authors of historical thriller and mysteries. In the case of Crane v. Poetic Products, Ltd. (S.D. NY 2009), a federal district court was presented with this very issue. The dispute involved an allegation that a play (The Last Confession) based on the death of Pope John Paul I infringed on a nonfiction book (In God’s Name) on the same subject. The author of In God’s Name had concluded that the Pope was murdered by a cabal of men both inside and outside the Vatican.
In its analysis, the Crane court noted that historical facts and events are, in general, not protectable elements under the U.S. Copyright Act, including theories or plots — citing Hoehling v. Universal City Studios, Inc. (2d Cir. 1980). The Hoehling court decided that a hypothesis charging a particular individual with destroying the Hindenburg zeppelin was based entirely on the interpretation of historical facts and was not protected by copyright. Therefore, the court ruled, the hypothesis could be freely used by subsequent authors. The Court also ruled that this doctrine applies to “scènes à faire” — scenes in a novel typical for that novel’s genre, such as car chases in action movies; listening devices and gadgets in spy movies, etc.
In 1991, however, the Supreme Court diluted the Hoehling doctrine in the case of Feist Publications, Inc. v. Rural Telephone Service Co., which held that while copyrights do not apply to facts themselves, “thin” copyright protection exists for an original selection or arrangement of facts. Nevertheless, “the copyright is limited to the particular selection or arrangement.”
In applying these two cases, the district court in Crane found that only the expression of In God’s Name’s theories and surrounding facts, specifically the selection, coordination, and arrangement of its theories and facts, was protectable. Therefore — under general copyright law principles –to determine whether In God’s Name expression was infringed by The Last Confession, the Court had to decide whether The Last Confession was, in the eyes of an ordinary lay observer, “substantially similar” to these protectable elements.
The author of In God’s Name had extensively documented its claims of alleged infringement with line-by-line comparisons of quoted passages from its work with that of The Last Confession. Although the Court found several instances of similarity of phrases and terms, such similarity was, in its view, only with regard to historical facts, not with regard to expression. In addition, the play does not conclude that Pope John Paul I was murdered, leaving it up to the audience to decide. Based on its analysis the district court found that the two works were not similar in protected expression, or look and feel.
Unfortunately for mystery authors, “substantial similarity,” as with “look and feel” is more often a subjective than an objective assessment.
©2011 Daniel N. Steven