"In the early morning of August 24, 1875, eight members of
the notorious Donnelly family of Lucan, Ontario, armed with nothing
more than clubs, won a pitched street battle against eighteen
townspeople intent on revenge. Or did they?"1 These are the opening words of a recent
Federal Court case, Winkler v Hendley, which involved the
question of whether copyright should subsist in fictional elements
of a work that was marketed, published and perceived to be
historically factual.
In his 1954 book, The Black Donnellys, Thomas P. Kelley recounted the history of the notorious Donnelly family; from their migration to Lucan, Ontario from Tipperary, Ireland, to their long-running trouble with the law and their neighbours, and ultimately, to their unsolved murders. Over the years, the Donnelly family tale has been heralded as one of Canada's most infamous "true crime" stories. The Black Donnellys, in particular, presents itself as "The True Story of Canada's Most Barbaric Feud." In libraries across Canada, The Black Donnellys has been published, presented, and accepted as non-fiction for the last 67 years. The dramatic account of the Donnelly family feud has been trusted and relied upon by readers, researchers, and storytellers, alike.
Mr. Hendley, the defendant author, relied on the factual
tellings in The Black Donnellys as a primary source for
his original literary work, The Outrageous Tale. In doing
so, he recounted many of the historical "facts" published
in The Black Donnellys, which the plaintiffs, Mr.
Kelley's descendants, alleged infringed the copyright. To
overcome the principle that there is no copyright in facts the
plaintiffs asserted that several of the historical accounts
presented as true in The Black Donnellys were, instead,
elaborations of the truth, or in some cases the pure product of Mr.
Kelley's imagination.
The central question for the Court on the summary judgment
motion was whether it is copyright infringement to copy details
represented as facts in a prior work, but that were never really
facts at all. In answer, the Court stated that where facts, even
embellished or invented ones, are presented as historically
accurate, the author presenting those facts cannot later claim
copyright in them.
The Court concluded that where an author credibly presents a
work as historically factual, such facts then fall within the rule
that there is no copyright in facts, regardless of whether their
objective truth is later questioned or even disproved. Given this
finding, once the facts were discounted the Court found that the
remaining alleged copying did not amount to a substantial part and
was not infringing.
Given today's climate where fiction and half-truths are often presented as facts, authors should keep in mind the general rule that there is no copyright in facts, even if later discovered to be fiction.
Footnote
1. Winkler v Hendley, 2021 FC 498 at 1.
For more information about eligibility for copyright, please contact a member of our team.Copyright & Digital Media team.
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