Rights: 'made up' history

[Keith Loh]

A hypothetical situation:

A writer (not me, but I am interested in the answer) is writing a fantasy script that is based upon a historical notion that is not accepted by most people.

There is a book that claims that this history is real and purports to be an academic work and is written like an academic history. It is a NY Times best seller.

The writer does not want to read this book because of rights issues. He doesn't want to be accused of taking anything from the book.

But to me, the book is a history of facts. Therefore, if we are to believe this 'history', these are not made up. i.e. not a work of fiction, so these are events that actually happened.

Therefore, can't the writer read this for research and be free and clear of rights issues?

I suspect I know the answer but I think it is an interesting situation.

For example, what about the UFO people. Someone writes a book where they claim a vast conspiracy involving UFOs and the human race. You write the X-Files. Providing you aren't taking someone's personal story of how they were anally examined by the grays, wouldn't they have to go to court to show they made it all up while you were just taking them at face value that these events are part of history?

[Keith Loh]

Just to clarify. The concern in this hypothetical situation is not creative pollution but rights. And let us say the script would not be a slavish rendition of the events but may have characters set in these times taking part in these events.

[Richard Alvarez]

Keith,

Not real clear on your concept, but I'll take a stab at it, until Paul Tauger weighs in.

Historical FACTS are open for interpretation. For instance, many facts are known about the JFK assasination, but there are many theories about the 'truth'. Someone writing a fictional story that takes those known facts and builds on them, is pretty much in the clear. Whether or not they build it around a 'lone gunman' or 'mafia hit' or 'cia conspiracy'... all of which have been made into movies and books, is irrelevant in my mind. This writer/filmmaker would simply be creating a fictional work based on historical facts that are in the public domain. Ditto for something like "Roswell" perhaps... lots of facts on the record, many variations of truth in print and celluloid.

Is this what you're asking?

[Joshua Starnes]

He's free and clear as long as all he uses are the facts and none of the conclusions. If he as already come to a significant amount of conclusions on his own that are similar to the books, he will be in for a battle, one that is extremely difficult to prove, though the popularity of the book will be against him.

He could take some steps, like writing all his conclusions down before reading the book and mailing them to himself, video taping himself buying the book for the first time, keeping his book receipts - you know, some sort of proof that he came to these conclusions before reading the book - but that stuff is all circumstantial, and may not help in a law suit.

[Keith Loh]

Originally Posted by Richard Alvarez

Keith,
Historical FACTS are open for interpretation. For instance, many facts are known about the JFK assasination, but there are many theories about the 'truth'. Someone writing a fictional story that takes those known facts and builds on them, is pretty much in the clear. Whether or not they build it around a 'lone gunman' or 'mafia hit' or 'cia conspiracy'... all of which have been made into movies and books, is irrelevant in my mind. This writer/filmmaker would simply be creating a fictional work based on historical facts that are in the public domain. Ditto for something like "Roswell" perhaps... lots of facts on the record, many variations of truth in print and celluloid.

Is this what you're asking?

The author of the book has interpreted the facts to support a minority theory. So the historical facts are there but the interpretation hasn't been laid down in a history until this book. The interpretation, however, has been mythologized previously, just never been substantiated in a history.

So, can the screenwriter write a fictional screenplay based upon the story but also using the interpretation in the book?

[Keith Loh]

Originally Posted by Joshua Starnes

He's free and clear as long as all he uses are the facts and none of the conclusions.

What if the conclusions are in general public discussion prior to the book? But the book is the best-known serious example that lays them down as history.

For example, there is a mythology about aliens coming from space and kidnapping people and there are events around Roswell that are known to be facts. But someone has written what they purport is a serious history about this using the same facts available to anyone else. Let's also say that this history has an ingenious interpretation of these facts that opens it up to a whole new level of discourse. In ten years there may be several histories following this theory (proving or disproving it). But right now, this is a breakthrough book and a best seller.

[Robert Knecht Schmidt]

The dilemma you describe is identical to the one Dan Brown placed upon himself when he wrote The Da Vinci Code--see this excellent Salon.com article for details (you will need to go through a click-through advertisement to read the whole thing).

The conspiracy underlying the plot of The Da Vinci Code is ripped off part-and-parcel from Holy Blood, Holy Grail, a fraudulent nonfiction work with only the thinnest sheen of academic authenticity. Two of its coauthors, Michael Baigent and Richard Leigh, have filed suit against Brown in a UK court; Brown pleads that his is a work of fiction.

You can quickly see that something of a double-paradox is created.

If Holy Blood, Holy Grail is a work of nonfiction as it presents itself to be, then the ideas contained within it are harder to copyright--no one can own the facts of history.

But the chief fraction of the allure of The Da Vinci Code amongst readers (and soon, moviegoers) is the perceived plausibility of the conspiracy. It is interesting because it might be true; after all wasn't it based on real scholarship?

The authors of Holy Blood, Holy Grail only have a real chance of recovering damages from Brown if they admit the extent of their contribution to fiction in their book; on the other side of the coin, Brown is only safe from accusations that there is no reality to the conspiracy described his book (a public perception he has done nothing to promote but shamefully little to refute) as long as he can point to Holy Blood, Holy Grail for backup--essentially an admission of the plagiarism.

Rule of thumb. Where there's money to made, you can bet somebody, somewhere is eventually going to sue you. The best way to cover your rear is to thoroughly document your research, be honest about your inspirations for certain ideas and elements, and register successive revisions of your work product with the WGA, the Copyright Office, etc.

See also: the author claiming Ridley Scott's new movie about an obscure knight in the Crusades was stolen from his pitch. The woman who wrote books about "muggles" and sued J.K. Rowling over her Harry Potter series. The challenges to Michael Crichton and his wife's authorship of the screenplay to Twister. The suit brought by the families over Wolfgang Petersen's The Perfect Storm. And on and on.

[Keith Loh]

Robert, you got the gist of my question, thanks.

So, if the author of the 'historical' book does not admit that it is made up, then the screenwriter would be on more solid ground (even if it went to court) because it would just be based upon a rendering of facts.

In the real situation that prompted me to ask this question, I really doubt that the writer would have any real issue because his fantasy would really only take place in the setting. The overall concept is already in popular mythology. I thought he was paranoid for not wanting to read it.

Thanks for the rundown on the Dan Brown issue. I only heard bits about that.

[John Sandel]

Keith, if any of this comes into a court for resolution, the judge will try to make a decision based on questions of rights and damages. Your distinction between myth and history, in this forum, may or may not impress a judge, who's a human being with his/her own fliters on these things.

Often, too, the legal criteria are fuzzy. The judge might be convinced that Author A used ideas without consult with or permission from Author B, but that B didn't suffer significant damage. Ditto as to whether or not someone's rights were violated. It is interesting when you consider the question of previous publication of whatever "facts" are under scrutiny.

An established publisher with deep pockets will sometimes win a case like this if they can convince a judge that their profits and/or brand stands to be compromised when a competitor---even an independent with miniscule marketing resources---lands on a similar notion. When the veracity of "facts" or a "history" may be undecidable, judges will often look to memorialization; hence the various services which register documents' primacy, like the Writer's Guild, etc.

[Peter Wiley]

My understanding is that, in the U.S., ideas and facts cannot be copyrighted. What can be copyrighted is expression about ideas and facts. Previous works about George Washington don't prevent me from writing yet another book about him, nor does Stargate SG1 prevent me from making a TV show about people who fly back and forth between planets via wormholes. If people did not steal each others ideas Hollywood would be impossible.

Things do get a little more difficult if I want to include a character called Samantha Carter in my TV show because she is part of the original exprssion of SG1. There is no bright-line threshold that separates idea from expression when the ideas in stories are very similar. What there is is a lot of complicated case law that one absolutley needs a professional to sort through for a specific case.

You might find http://www.ivanhoffman.com/ helpful.

Just for fun, here is another DaVinchi Code suit http://www.davincilegacy.com/Infringement/. Take a look at the filings links and you'll see what I mean by complicated.

[Keith Loh]

Originally Posted by John Sandel

An established publisher with deep pockets will sometimes win a case like this ...

Yes. Anyone can sue you for anything and if they have the resources they can win.

[Joshua Starnes]

Originally Posted by Keith Loh

What if the conclusions are in general public discussion prior to the book? But the book is the best-known serious example that lays them down as history.

For example, there is a mythology about aliens coming from space and kidnapping people and there are events around Roswell that are known to be facts. But someone has written what they purport is a serious history about this using the same facts available to anyone else. Let's also say that this history has an ingenious interpretation of these facts that opens it up to a whole new level of discourse. In ten years there may be several histories following this theory (proving or disproving it). But right now, this is a breakthrough book and a best seller.

It would give you an easier time of proving your side of the case, but you might still get sent to court. These cases revolve around one side showing what they think the other side knew and when they knew it. If the writer is, for instance, an academic in this field, and the conclusions used in the book are not entirely original, only the facts are (which could, theoretically, have been found by anyone) then he has a strong case and will probably win. But he could still get taken to court. There are a lot of variables involved. The book you say is a Top 10 book, so the author will know that many people will have read it and assume the information is being widely dessiminated (which is what the book is for) and for the most part won't care (or can't do anything about it if he does - the other half of the equation is that the aggrieved party has to prove that they have been damaged somehow by the theft, which usually has to do with whatever the other party benefited by allegedly committing the theft - gah, too much lawyer speak) if someone else begins working on their own personal project along the same lines. Unless that project is a movie script that results in a major feature film being made that makes mucho, mucho money. When that happens, rationality goes out the window and law suits start flying like missles. Granted that's a worst case (or best case, I suppose) scenario, but it's something to kept in mind. The writer could probably win his case, but he would have to endure a lot of years of legal trouble and sky high legal fees in order to do so.

Usually for the person being sued, unless he's making what a Dan Brown or a J.K. Rowling is making, it's too much trouble and too costly to be worth it.

[Bob Costa]

One thing that can enhance the defense of your position is if you use more than one book for reference and research. If several books present the same "facts" as history, it is much harder for any one to claim damages. If you only use one book as the basis for your own book or screenplay, you probably are stealing ideas and should get sued.

[Richard Alvarez]

I think John has a good point. The larger the dissemenated base of information is, the better off your hypothetical author is going to be.

A friend of mine , stumbled across an obscure historical tale base in fact about a month back. It struck him immediately as a great idea for a film. Not wanting to base his script SOLELY on the article in hand, he hit the libraries. The story was recounted in numerous historical journals, some with beter information, some with slightly differing views. The point is, he felt comfortable creating an outline for the script, based on the fact that this obscure story was nevertheless on record for those who wanted to dig it up. He will take the facts, and create an entire script of fictional characters based on the historical accounts.

Had he NOT found any other supporting research or stories, he would have felt compelled to approach the publisher for rights. You see this sometimes at the Academy Awards for screenwriting, "Based on previously published material". Usually it's a book, or a short story, but occasionally it's an "Article". So newstories and magazine articles are also optioned as sources for screenwriting material.

[Keith Loh]

Originally Posted by John Galt

One thing that can enhance the defense of your position is if you use more than one book for reference and research. If several books present the same "facts" as history, it is much harder for any one to claim damages. If you only use one book as the basis for your own book or screenplay, you probably are stealing ideas and should get sued.

Right. So the screenwriter should do his best to find those facts in other places as well as in this popular book to show that the ideas did not come exclusively from the popular book.

And how good a tactic is it to try and show that the screenwriter has never read this top ten NY Times best seller book? Can you prove that someone has never seen a very popular work?