The Federal Court recently released its decision in Winkler v. Hendley, 2021 FC 498 [Winkler] in which it found that an author who claims to have published a non-fictional work cannot later claim that the work was in fact fictional in order to get around the principle that facts are not protected by copyright law.
This case deals with the issue of whether a creator of a work that is represented as historical non-fiction can claim copyright in the persons and events described in their work. The dispute arose between the plaintiffs, who are the owners of author Mr. Kelley’s copyright, and the defendant, author Mr. Hendley.
The plaintiffs claimed that Mr. Hendley’s book, The Black Donnellys: The Outrageous Tale of Canada’s Deadliest Feud, infringed copyright in Mr. Kelley’s The Black Donnellys and its sequel, Vengeance of The Black Donnellys. Mr. Hendley’s book and Mr. Kelley’s first book were both presented as the true story of the Donnelly family, whereas Mr. Kelley’s sequel was presented as a fictional take on the history of the family. Mr. Hendley cited Mr. Kelley’s works in his bibliography, confirming that the books were among the sources that he used to create his novel.
The court reiterated that copyright subsists in original works, whether or not they are fictional or non-fictional. They also noted that copyright protection only extends to the original expression of ideas, not facts or ideas themselves. As a result of facts not being protected by copyright, they are not considered part of a work’s originality. The court relied on this principle to establish whether Mr. Hendley’s work reproduced a substantial part of Mr. Kelley’s works because what constitutes a “substantial part” is determined in relation to the originality of the allegedly infringed work.
Many of the sections of Mr. Kelley’s first book that the plaintiffs claimed had been illegally reproduced in Mr. Hendley’s book included notes from Mr. Kelley himself that indicated that the events and information described were facts rather than his original creation. The court determined “that Mr. Kelley’s plausible assertions that the facts and events in question are true [was] sufficient to find that they are not protected by copyright” (Winkler at para 89), regardless of whether in hindsight they were indeed untrue. The Copyright Act seeks to balance creators’ and users’ rights. The court stated that this balance could not be respected if a creator was permitted to represent something as fact and then subsequently sue a user who relied on their work for infringement by suddenly claiming that it was not fact. It was established by the court that The Black Donnellys was a work of non-fiction, just as it was originally presented.
In evaluating whether a substantial part of Mr. Kelley’s first book had been copied, the court stated that almost all of the linguistic similarities between the offending passages were factual aspects of the event that do not contribute to the work’s originality. The parts of Mr. Hendley’s novel that could be viewed as using a similar mode of expression as that used in Mr. Kelley’s book do not amount to a significant portion of the originality of the work. Justice McHaffie explained the type of assessment that the court used to determine what constitutes a substantial part of the work:
“An assessment of whether a substantial part of a work has been copied is not to be undertaken based on isolated passages: Cinar at para 35. Still less is it to be conducted based on isolated words taken out of the context of the passages in which they appear. While language choices matter, a fair assessment of whether there has been a substantial taking considers the entire context rather than picking out occasional words in an effort to show greater linguistic similarity” (Winkler at para 121).
The court additionally found that there had been no substantial copying of Mr. Kelley’s second book based on the same substantiality assessment.
Ultimately, the court determined that there was no copyright infringement. The court made it clear that an author who publishes a work that they claim is based on true historical facts cannot subsequently claim that those facts are original literary creations for the purposes of avoiding the rule that there is no copyright in facts.
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