Q: Let’s say I’m writing a script for a film on the life of Mister X, a public, historical figure. In the process of doing my research, I run into interesting details about the life of Mister X in a non-fiction book (let’s call the book The Real Life of Mister X), and I want to use some of these details for my story. Do I need to contact the writer of The Real Life of Mister X and ask for his permission?
A: You’ll be happy to know that facts are not protected by copyright. I’m the only entertainment lawyer to climb Everest. That’s a fact. But it’s not protected by copyright. You can use it in your script, free of charge and without my permission. The interesting details you discovered about Mr. X are nothing but facts about him that you can freely use.
I don’t know Mr. X well, but let’s say he was a famous orthodox rabbi and you unearthed the fact that Mr. X had a flowery tattoo on his chest that read: “Don’t **** with Mr. X.” (This is a blog for the whole family, and many of our readers are very young children, including preschoolers, so pardon a bit of censorship.) That’s a very interesting detail (particularly under the circumstances, including orthodox Judaism’s ban on tattoos), and it’s also a fact about Mr. X that you can (and really should) freely use in your script. In fact, you should use it as the working title of your script.
In a little legal aside, if Mr. X actually had this tattoo, the tattoo itself might be protected by copyright, just like any other artwork. So if you wanted to replicate the tattoo in the film, that could be a copyright problem. But of course, you could simply create a different artwork with the same text to avoid any possible copyright problems.
So facts are not copyrightable. Barbara Roberts is Barbie’s full name. President Obama is the 44th president, but only 42 men had been president before him. Israeli stamps use kosher glue. These are all important facts, and you can use them freely.
What you can’t use freely, however, is the expression of facts. Let’s say I wrote a poem (as I have) about Barbara Roberts learning about the misnumbering of U.S. presidents while visiting Israel and sending a letter home about it using a kosher stamp. While you can use all the facts from my poem, you cannot use the poem itself. Similarly, while you can use the details about Mr. X from The Real Life of Mister X, you can’t copy the way these facts are actually expressed in the book.
But here is another thing to be careful about. Just because it’s in some book doesn’t mean it’s true. For all I know, The Real Life of Mister X is full of lies, untruths, fabrications, distortions, and typos. Mr. X might very well be Howard Hughes, and The Real Life of Mister X might very well be Clifford Irving’s fake autobiography about him. Interestingly, and potentially painfully relevant to what you’re doing, fabricated “facts” are not real facts, and they might be protected by copyright precisely because they are not facts. In other words, fabricated “facts” (or, as some vulgarly refer to them, lies) are fiction. Truth can be stranger than fiction. But fiction is protected by copyright; truth is not.
Of course, copyright would not protect small fabricated “facts” — for example, if the author of the book fabricated Mr. X’s height and you used that “fact,” you probably wouldn’t have copyright issues. But if the author of the book fabricated an entire chapter of Mr. X’s life — for example, he fabricated a long, torrid series of affairs Mr. X had with his dentist’s wife, sister, and daughters, and you used the details of these affairs, you might be infringing the author’s copyright.
By the way, all of this assumes that Mr. X is dead. Of course, if he is not dead yet, you also need to worry about not defaming him. Truth is an absolute defense to defamation. So if you use facts about Mr. X, defamation is not a problem. But if you use fabricated “facts,” defamation is a possibility; defamation is more than just a lie about someone. For example, except in some unique circumstances, lying about someone’s shoe size — saying it’s 10.5, not 10 — is not defamation, even though it is a lie (but this is a subject for an entirely different blog). And just because you’re repeating what you read in some book doesn’t get you off the hook on defamation, either — repeating a defamatory statement is still defamation.
Finally, if you use sources to write your script, it’s important to keep good records so you can create an annotated version of the script indicating what was used and from which source. This would be important if a potential financier, for example, wanted to evaluate the legal risks for himself.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.