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Ninth Circuit Creates “Asserted Truths” Doctrine for Copyright Cases Involving Works of Nonfiction

By John DiGiacomo

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 The Broadway production was based on a ghostwritten and unpublished autobiography by one of the founding members of The Four Seasons, Tommy DeVito.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.

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