It’s a True Story…Except for the Part That I Made Up

Stephen Carlisle July 13, 2017

Beyond the hot topic of “fake news,” two recent controversies highlight the important distinction between what’s true and what’s fiction: it’s a lot easier to sue for copyright infringement if you made it up.

First up is a lawsuit over “The Conjuring” film series. ¹ Here, the Plaintiff is suing over what are supposed to be his exclusive rights to tell the story of real life paranormal investigators Ed and Lorraine Warren. ² Yet, if the stories are true, they are facts and history, which no one can claim a copyright on. To get around this, the Plaintiff now claims that the Warren’s “lied” to him about their exploits. Since the stories are now “made up” and therefore “fiction” this makes the events portrayed in the stories copyrightable. ³

Along the same lines is a lawsuit based upon the Tupac Shakur bio-picture “All Eyez On Me.” The Plaintiff claims that the motion picture infringed upon the series of articles he wrote about the late rapper for Vibe magazine which were published in the 1990’s. ⁴ Again, we have the same problem. If what was reported in Vibe is true and factual, then anyone can help themselves to those facts, but not the resulting expression. So, the Plaintiff has to confess to one of the great taboos of journalism: “’While some of the content in these articles was factual, some portions of the article were changed or embellished by Plaintiff,’ states the complaint.” ⁵ To wit:

“’In fact, the name and character of ‘Nigel’ in the Original Work was specifically created by the Plaintiff without the authority or encouragement of Tupac Shakur,’ writes Powell’s lawyer. ‘This made-up character of Nigel was the embellishment of a real-life character that was central to the narrative in Plaintiff’s articles. This made-up character was copied and pasted into Defendant’s film to play the same central character and role in the Infringing Work as he did in the Original Work.’” ⁶

Well, this is a convenient game of “gotcha.”

Especially with the case of “The Conjuring.” The majority, if not main appeal of the movie, is that the events are “true to life” and “really happened.” So is it permissible to clearly represent that the facts of the story are “true” but then when someone copies these events, jump up and say “It’s a true story, except for the parts I made up.”?

Not surprisingly, the reaction of the courts is “not so fast.”

Consider the case of Houts v. Universal City Studios. ⁷ There, the author of a “true crime” book “Where Death Delights” sued the studio and producers of the TV show “Quincy” over alleged similarities between to the two works. The Court noted at the outset:

• The book jacket of the American hardcover edition extols the books as “real life detective stories;”
• The spine of the Dell paperback edition has the notation “N–F,” expressly informing the public that the book is non-fiction; and
• The first page of the paperback edition proclaims that “[h]ere is a book that shows that truth can be more brutal than fiction.” ⁸

Given these representations, it did not take the court long to apply the doctrine of “copyright estoppel.”

“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.” ⁹

Seeking to avoid the application of this doctrine, the author then makes an argument that should now be familiar to those of us who are familiar with what passes for discourse on twitter and Facebook:

“Plaintiff further argues that because of the absurdity of some of the stories within Where Death Delights, any reader should have known that the stories were really fictionalized, irrespective of representations on the jacket cover about the book’s factuality.” ¹⁰

The Court wasn’t buying it.

“[I]t is a non sequitur to argue that the stories hold themselves out as being fiction because the stories are not believable. Furthermore, Ninth Circuit courts have found that intrinsic evidence of a story’s absurdity, evidence clearly more ludicrous to the average reader than the stories in Where Death Delights, would not overcome evidence that the plaintiff had expressly held the book out as factual in the introduction to the book.” ¹¹

The court entered summary judgment in favor of the Defendants.

The Houts case was cited for this proposition in a book about the notorious criminal John Dillinger. ¹² There, the author claimed to that he “played fast and loose with the facts in order to create a more profitable Dillinger story.” ¹³ The result was the same. The author had “represented his books to be factual accounts of the bank robber’s life and death.” ¹⁴ The doctrine of copyright estoppel applied to the facts of the case. While ruling the book itself was copyrightable, “[n]either the ideas that Dillinger did not die in 1934 nor the historical facts cited by [the author] in support of the Dillinger story are protected.” ¹⁵

Along the same line of reasoning, claiming that a story is far-fetched nonsense is not a complete defense to actions for defamation.

In Mitchell v. Globe International, a 96-year-old woman found that her picture had been placed next to a story in the Sun tabloid with the headline “World’s oldest newspaper carrier, 101, quits because she’s pregnant.” ¹⁶ The defense of the tabloid: “C’mon. Everyone knows we make stuff up.” The person who wrote the story in question testified he had been given the Plaintiff’s picture and the headline, and then made up the rest of the story. ¹⁷ Plaintiff’ picture was selected because they assumed she was dead. ¹⁸ An editor for the Sun testified:

“[The  Sun is a] tabloid that is published mainly for entertainment. It deals with offbeat, fantastic, very unusual stories.” (citation omitted) [T]he Sun publishes stories which border on fantastic. The Sun’ s stories are not necessarily true. (citation omitted) The Sun is a magazine. A great many of the articles in the Sun, as I said before, are fantasy, fantastic, very much like science fiction. There are a sprinkling of actual happenings in the articles about actual happenings in the paper; those are very, very well updated.” ¹⁹

By sprinkling real stories amongst the fake stories, the Sun obviously hopes that a patina of truthfulness will spruce up the phony content. This proved fatal to the Sun’s motion for summary judgement.

“The articles are written in a purportedly factual manner. No distinction is made between those articles that are wholly fictional and the articles that are intended to be factual. Fictional articles are not denoted as such. The Sun apparently intends for the readers to determine which articles are fact and which are fiction or what percentage of a given article is fact or fiction.

The layout, captions, and style of writing contained in the article is similar in format to news articles. There are no cautionary statements appearing in this article or to the court’s knowledge in the entire edition of the Sun.” ²⁰

In sum, if you represent that the story is true, the courts are not going to let you deny the truth of the story later to your advantage.

Even if you had your fingers crossed when you said it.