A recent Court decision highlighted the basic copyright principle that copyright does not protect facts. This is true even though the facts are taken from your life story.
The case, Eggleston v. Twentieth Century Fox Film Corp. 1 alleged that the television series Empire based its central character “Cookie Lyon” upon the Plaintiff and allegedly took material from the Plaintiff’s memoir “The Hidden Hand,” in violation of Plaintiff’s copyright. As part of the allegations, Plaintiff alleges that a film producer had a meeting with the series Producer Lee Daniels at which a copy of “The Hidden Hand” was given to him.
In the complaint, Plaintiff alleges 23 similarities between herself and the “Cookie Lyons” character. The problem is that, if factual, these personality traits or events could be copied. It is the way in which those facts are expressed that creates a copyright.
The Court points to a similar situation in the case of Vallejo v. Narcos Productions 2 in which it was admitted that certain events detailed in Plaintiffs memoir were included in the TV series Narcos. There, the court found that while the series “used unprotectable facts from Ms. Vallejo’s memoir [it] did not copy her expression of those facts because the plot, setting, mood and the character interplay are not substantially similar.” 3
And so it is with “The Hidden Hand.” The Court writes:
“Applying the holdings of these cases to the issue of whether a ‘real person’ as depicted in a memoir can be copyrighted, it is clear that the historical recitation of individual facts that Ms. Eggleston presents in her memoir would fall on the ‘fact’ side of the fact/expression dichotomy and cannot claim copyright protection. Nevertheless, certain aspects of the way her life story is expressed and depicted in her writing would be protected—a memoir is not a bulleted list of facts about a person’s life, but involves significant arrangement and selection, as well as reflection and inner monologue that provides context and color to the facts…Thus, a screenwriter could not lift lines of dialogue from ‘The Hidden Hand,’ nor structure a scene to mimic exactly one that Plaintiff describes.
But Plaintiff does not identify any scene, dialogue, or portrayal that was copied in this way. In Narcos, the Eleventh Circuit was not troubled that the fictional character in the show was clearly based directly on the life of the real Vallejo as she appeared in her memoir. Similarly, here, using some of the facts of Eggleston’s life—even if they were transferred into a new, fictional character—does not violate copyright protections without a further showing that particular creative expressions concerning the depiction of Eggleston’s character that were unique to her memoir were copied… [T]he development of this issue in the caselaw as cited indicates that the pleadings do not sufficiently describe protected elements of Plaintiff’s work that were infringed.” 4
So, could the writer when creating the memoir sprinkle in various fictional events and attributes, thus turning the “factual” work into something more protectable?
Sorry, but we’ve been down that road before, and the answer is no, you can’t.
As recounted in my previous blog post, 5 the doctrine of “copyright estoppel” will kick in.
“Under the doctrine of copyright estoppel, once a plaintiff’s work has been held out to the public as factual the author-plaintiff cannot then claim that the book is, in actuality, fiction and thus entitled to the higher protection allowed to fictional works.” 6
The sum of these principles is why, much to some people’s astonishment, anyone can write a book, or make a movie, or a television series about your life, even without your permission.
So why do studios buy “life story” rights from people if they don’t have to? First off, to protect themselves from defamation suits. Within that agreement will be the permission to fictionalize part of the person’s life, and while the subject may be given a chance to review the finished product, the subject will never have the ability to demand changes.
Secondly, the studio is hoping to get “inside” information or facts that will make the story more interesting that are not publically known.
So as here, and in the Narcos case, once you’ve let the “cat out of the bag” by publishing a memoir, the facts contained therein are now free for the taking.
So it may be “your” life, but you don’t own it.