Tuesday, October 30, 2012
Matt Kellogg, Covington & Burling LLP, has published The Problem of Fictional Facts: Idea, Expression, and Copyright's Balance Between Author Incentive and Public Interest at 58 Journal of the Copyright Society of the U.S.A. 549 (2011). Here is the abstract.
One of the central principles of copyright law is that an author may prevent others from using her expression but not her ideas. Known as the idea/expression dichotomy, this is how copyright law gives authors an incentive to create new works while ensuring that the public may continue to use and build on the ideas underlying those works. In practice, however, distinguishing expression from idea often proves quite difficult, and nowhere is this difficulty more apparent than in cases involving fictional facts.
Fictional facts are the building blocks that make up a work of fiction. Seen from the author’s perspective, they are unique creations that define the plot, characters, and setting of the work and are therefore deserving of protection. To the audience, however, these same fictional facts are the work’s abstract ideas and should be available for anyone to repurpose. Several important copyright decisions from the past fifteen years have centered on fictional facts, including disputes over a Star Trek viewers’ guide, a book of Seinfeld trivia, and, more recently, a Harry Potter encyclopedia. Yet little has been written on the doctrinal problems that fictional facts present or possible solutions that courts might implement.
To begin, this article offers an overview of how fictional facts are typically used and why both authors and audiences believe they are worth fighting over. It then explores the status of fictional facts under current copyright law. One decision in particular, Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., made a lasting impact when the Second Circuit improperly introduced originality into its analysis of the idea/expression dichotomy. The article concludes with a proposal for a fictional-fact-specific infringement test that tries to balance author incentive and the public interest. In contrast to fair use, which provides an affirmative defense to infringement claims, this revised test considers whether copying fictional facts constitutes infringement in the first place.
Download the article from SSRN at the link.