Q: I read in the trades that a studio bought the rights to a nonfiction book based on a historical figure during the Gold Rush – Deadline. If historical events/figures are open game for the public to write about, when is it necessary to secure nonfiction book rights? If not legally necessary, is there any benefit in doing so?
A: Nikki Finke has taken over Hollywood (news) and has become the “trades.” Just like this blog has taken over ultra lucrative entertainment law blogging, I’m pleased to report, bankrupting, forcing into foreclosures, and running out of town most of our feeble competition. No wonder Nikki is a devout fan of this blog. (Or so I’m told by our go-to anonymous, ax-to-grind source; or maybe the source was talking about Nicky Hilton? It’s hard to know; the source was wasted.)
Copyright doesn’t protect historical facts or any facts for that matter. Nobody owns facts or history. No matter how hard a history scholar works to unearth an obscure historical fact, the scholar doesn’t own it. But history may just be a bunch of lies we all agree on, not a list of true facts (as opposed to those all too familiar false facts). Facts are in the eye of the historian. Facts, even if they turn out to be non-facts eventually, are in the public domain. Facts are (or believed to be) the truth and fiction is lies. Truth is not protected by copyright; lies are. One more reason to lie. Life sucks less if you’re willing to cut corners, fake resumes, and roll through stop signs, and life continuously whacks truth tellers in the face with a dirty aluminum hockey stick. That’s one of them true facts.
And truth is stranger than fiction, of course, mostly because fiction has to make at least some sense to be sold. John Lennon was killed, and Yoko Ono lives on. Truth is not for profit, and its quality suffers like any other not for profit undertaking. But separating truth and fiction could be as easy and pleasant sometimes as separating a pair of Siamese twins joined at the scrotum (unless you go to www.snopes.com). Often nonfiction books are actually fictionalized nonfiction, filling fact gaps with fiction. To make a movie based on a book like that you’d need to buy the movie rights to it. And sometimes a nonfiction book is so well structured that it reads almost like a screenplay. A unique arrangement of historical facts into a specific story line might be protectable by copyright, and it may be the reason in some cases to buy the movie rights.
Even though history and facts are not protected by copyright, the expression of facts and history are. You may not simply lift a passage from a history book and stick in your screenplay. The facts that Hitler was a confrontational vegetarian and a giant fan of Shirley Temple are anyone’s to use, but the specific description of these facts you may find in an out of print history book of cute facts about Hitler are owned by the author of the description.
Nor does copyright protect historical theories, as opposed to facts. The theory that President Obama was not born in the USA is not owned by anyone. You can use it all day long. Historical theories which turn out to be false, and as such are not facts, are at their core merely false ideas. And copyright doesn’t protect ideas, true or false or in between. My long-standing theory is that Jesus of Nazareth was not married, had no children, but did practice entertainment law and was an accomplished whistler, among other things. This historical theory is just an idea not protected by copyright. I strongly urge you to use it often (and to drink green tea). But just like with historical facts, the expression of historical theories is protected.
News is also facts (ideally most of the time); nobody owns news. Osama bin Laden is dead, survived by 49 siblings. Nobody owns that news. But news gathering as a business could be protected by unfair competition laws. If you started a new news website — cnn.biz, which paraphrases in real time (or close to it) whatever it is cnn.com has on it, you’d be in a heap of legal trouble, even though CNN doesn’t own the news.
Of course, as much as I want everyone to make their decision based on my legal opinion, there are non-legal reasons to buy movie rights to a nonfiction book. The book could be a best-seller or its author could be well known, either of which could guarantee some built-in awareness of the movie. The utter lack of creativity and risk-taking is another good non-legal reason. The last time a major studio released a movie not based on a book, existing movie, a lyric, an overheard conversation, or a fast food restaurant menu, in other words the last time a major studio released an original movie, was so long ago you’d need a historian to tell you.