Q: I read in the trades that Fox bought the rights to the nonfiction book The Floor of Heaven which is based on an historical figure during an historical event. If historical events/figures are open game for the public to write about, when is it necessary to secure nonfiction book rights? Holy Blood Holy Grail was used in the research for Dan Brown’s Da Vinci Code — they sued him and lost. So I’m really confused as to when it applies. And am asking because I have a script based on an historical figure and used one particular book heavily in my research — should I inquire about the rights? If not legally necessary, is there any benefit in doing so?
A: We get two types of questions very frequently. The first, of course, is: “are you single?” The second involves the making of movies based on historical people or events. I had no idea so many filmmakers were interested in making movies that are generally incapable of a sequel. What’s the point of making movie if you can’t follow it a few years later with a derivative, unimaginative rehash? I’m still waiting for Thirteen Days 2: The Bangkok Missile Crisis but I’m pretty sure it’s never going to happen.
The thing about history is that we wouldn’t know it unless someone else tells it to us, whether it’s your bespectacled bunned-haired 8th grade history teacher or the author of the latest book about a heretofore untold slice of times past. Therefore, any movie based on history is almost certainly going to be derived from some pre-existing work (10,000 B.C. excluded of course). Does that mean you’d have to acquire rights from the author of the Kim Jong Il biography you once read if you reference in your film that his fashion sense is only one step above his human rights record? Of course not. Copyright law does not protect facts, even if the collecting of those facts was the result of an intensive years-long process of one historian. Effort does not equate to copyright protection (just as lack of effort doesn’t necessarily negate copyright protection).
Copyright law does, however, protect how an author crafts a story around facts. You can read a brilliant book or piece of reporting and, though it’s a factual story about a true event, the author’s creative touches and decisions will be evident throughout the piece. If that piece inspires a filmmaker, as they often do, it’s inconceivable that the filmmaker’s film about that true event won’t share creative similarities with the material on which it’s based (such as plotting, framing, and narrative). In addition, the more a factual piece attempts to tell a story as entertainment, the more likely that author may have embellished, fictionalized or hypothesized about certain events. If found to be fiction, those aspects of the story will certainly qualify for copyright protection. Therefore, as a rule of thumb, if you’re going to be basing a film solely on a particular book or article that tells a unique story about a factual event, you should acquire the rights from the author to do so.
Contrast a piece of factual storytelling with, say, an Encyclopedia reference about the same event (or, I guess, a Wikipedia reference for you youngsters). That reference is going to be very cut and dry and written in a manner more akin to a listing of facts than storytelling. Those bare bones, general facts will also almost assuredly be found in numerous other reference books/articles. You should be able to pull these facts from various sources without the need to acquire rights from the authors of those sources.
Your situation, of course, is more difficult to address because it sounds like you’re pulling the majority of your facts from one book about a certain event, which, for the purposes of this blog, I’ll assume is more of a specific historical reference book (e.g., dry) than a novel about a true event (e.g., creative). You may only be pulling facts, but most of the facts in your film will come from the same source. In addition, if it’s an obscure enough event, that source may be the only source of those facts.
Well, time for me to take off my lawyer hat and put on my practicality hat. While it may be questionable as to whether the author of the book in question could succeed in a copyright infringement suit against you if you merely take facts from his/her book (as opposed to more creative aspects of the book), if you indeed cull most of the historical facts that show up in your film from one book, chances are that the author won’t be happy. And unhappy people in this country file lawsuits. And lawsuits are expensive, even if you win. And because you’re making a movie about an historical event, not this month’s super hero du jour, you may not have the kind of money to deal with that sort of expense. Therefore, the safest approach in a situation like this, and the approach common in the industry, is to obtain rights from the author. It should be noted that obtaining such rights may come with other benefits. For example, you may be able to engage the author, for a sum that may reduce or negate your rights acquisition costs, to serve as an historical consultant to help you tell the story accurately. (I really enjoy the use of “an” before “historical.”)
With respect to the Da Vinci Code case you referenced, Dan Brown culled from Holy Blood Holy Grail what were presented in that book as facts, despite the fact that many would voraciously debate the truthfulness of those claims. Because those authors presented the claims as facts, they were treated as such by the court. Dan Brown didn’t follow any sort of narrative or other creative aspect of Holy Blood Holy Grail, but instead created his own unique, creative and fictional story around the “facts” presented by the authors; therefore, he wasn’t found to have infringed upon their copyrights. If the authors of Holy Blood Holy Grail claimed that their work was complete fiction, the case may have been decided differently.
That case should teach you two things: (1) it may be impossible for an author to successfully sue you for copyright infringement if you’re only using facts from that author’s book, but (2) if you make unique facts from one source central to your film, you may be sued nonetheless and have to incur the cost to successfully defend yourself.
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.