Over the years, federal courts have been consistent in refusing to extend copyright protection to the facts and “truths” that are presented in nonfiction books, documentaries, and other works. This is because copyrights extend to “original works of authorship,” not to facts and ideas.

This issue has become nettlesome in recent years because, when a nonfiction work has been used as the basis for a movie or television show, authors have been routinely backtracking on their “nonfiction” claims. The authors claim some part of the work has been “embellished” or fictional. The authors then argue that those fictional elements are copyrightable and that they are entitled to pursue legal claims based on copyright infringement.

In a recent decision, the Ninth Circuit has attempted to put an end to these types of copyright claims by creating what it calls the “asserted truths doctrine.” Essentially, if an author claims that a book or other work is “nonfiction,” then the author cannot later claim, in copyright infringement litigation, that part of the work is fictional and thus entitled to full copyright protection. See Corbello v. Valli, Case No. 17-16337 (US 9th Cir. September 8, 2020). Other federal circuits have reached similar results but under guise of the doctrine of estoppel.

The case involved the hit production called “Jersey Boys on Broadway.” The “Jersey Boys” franchise is based on the lives of the musical group called The Four Season. The Broadway production was based on a ghostwritten and unpublished autobiography by one of the founding members of The Four Seasons, Tommy DeVito. The autobiography is generally presented as a straightforward historical account. The book is presented in a first-person narration — DeVito — and is described as the “complete and truthful chronicle of the Four Seasons.” At trial, the plaintiff — Donna Corbello, the current owner of the autobiography’s copyright — claimed that there were six elements of the book that were copied in the Broadway production. A jury agreed and found that the production infringed on the autobiography, that use of elements from the book was not fair use, and that ten percent of the success of the Broadway production was attributable to infringement of the book. However, the trial judge overturned the jury verdict and held that use of the book was “fair use” under applicable copyright legal doctrines.

On appeal, the Ninth Circuit affirmed, but on the grounds of the asserted truths doctrine. Essentially, the autobiography was asserted to be nonfictional. Each of the six elements alleged as copyright infringement were factual elements from the book. As such, those factual elements were not copyrightable and there was no infringement. The plaintiff tried to defend by arguing that the book had not been published. However, the Ninth Circuit rejected that argument. It does not matter whether or not a nonfiction book has been published. The facts presented in the book are not copyrightable and, if the book is asserted to be nonfiction, an author cannot claim otherwise for purposes of copyright infringement litigation.

For more information and/or if you have questions about protecting your copyrights and other intellectual property, contact the copyright lawyers at Revision Legal at 231-714-0100.

The Idea-Expression Dichotomy and Its Limits

Copyright protection under 17 U.S.C. § 102(b) explicitly withholds protection from any idea, procedure, process, system, method of operation, concept, principle, or discovery. Courts have long applied this principle, known as the idea-expression dichotomy, to prevent copyright owners from monopolizing facts or historical events simply by writing about them. The classic statement of the rule comes from Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), where the Supreme Court held that facts are not copyrightable because they are not authored—they exist independently of any writer’s creative choices.

The asserted truths doctrine developed by the Ninth Circuit extends this principle in a specific direction: it applies equitable estoppel-like reasoning to prevent a nonfiction author from claiming copyright in facts the author publicly represented as true. The doctrine addresses a form of strategic inconsistency that had proliferated in Hollywood-adjacent copyright litigation.

How the Asserted Truths Doctrine Works in Practice

The doctrine operates in three steps. First, the court asks whether the work was presented to the public as nonfiction—looking at genre labels, dust-jacket language, press interviews, copyright registration filings, and any sworn statements the author made in prior proceedings. Second, the court identifies which elements the plaintiff claims were infringed. Third, the court evaluates whether those elements were among the facts or events the author asserted to be true. If they were, the court holds them uncopyrightable.

This means the doctrine can apply even if a claimed fact turns out to be embellished or invented, so long as the author told the world it was true. The Ninth Circuit’s logic is that an author should not be permitted to receive the reputational and commercial benefits of being a truth-teller when marketing a book and then pivot to claiming the same content is fiction when seeking copyright damages.

What the Doctrine Does and Does Not Protect

The asserted truths doctrine does not strip all copyright from a nonfiction work. A nonfiction author still retains protection in original creative expression: the selection and arrangement of facts, the prose style, metaphors, dialogue that is clearly invented rather than transcribed, and structural choices. The doctrine is narrow—it targets the factual assertions themselves, not the author’s creative treatment of those assertions.

For works that blend fact and fiction—what publishers sometimes call narrative nonfiction or creative nonfiction—the analysis becomes more nuanced. An author who carefully distinguishes throughout the work between verified events and dramatized reconstruction may have a stronger argument that the dramatized portions are independently copyrightable. Authors and publishers who anticipate this issue should be deliberate about how they characterize the work’s factual basis in all public communications.

Implications for Content Licensing and Clearance

For producers, studios, and publishers who acquire rights in nonfiction works for adaptation, Corbello v. Valli is a cautionary but ultimately helpful decision. It reduces the risk that a source-book author will later claim copyright infringement in the facts drawn from the book for an adaptation—provided the production team can demonstrate that the adapted elements were the very facts the author asserted to be true. This reinforces the importance of thorough literary clearance opinions before production begins.

For nonfiction authors, the lesson is to be consistent. Statements made in press releases, author notes, copyright registration applications, and depositions in prior litigation can all be used to establish what facts the author asserted as true. Authors who wish to preserve maximum copyright protection should identify clearly in the work itself which portions are documented fact and which are creative interpretation or reconstruction.

If you have questions about copyright registration, literary rights, or defending against copyright infringement claims, contact the copyright lawyers at Revision Legal at 231-714-0100.