In Winkler v. Hendley 2021 FC 498 the Federal Court seeks to remind us of the importance of separating fact from fiction when sharing real life events. If an author represents something as a fact, when it was actually fictionalized, the author may lose the ability to protect the fictionalization.
In 1954 Thomas P. Kelley, one of Canada's most talented crime authors published the popular Canadian novel 'The Black Donnellys' detailing the exploits of the notorious Donnelly family of Lucan, Ontario. In 2004 author Nate Hendley published his account of the Donnelly tragedy, titled 'The Black Donnellys; The Outrageous Tale of Canada’s Deadliest Feud '.
Hendley admitted to using Kelley’s books and other sources for research but argued that because Kelley’s account of events were factual and historical non-fiction, Kelley and his successors could not claim copyright in the events he described.
The Court rejected the plaintiff’s position that Kelley’s book was a work of historical fiction or biographical fiction and held that “[A]n author who publishes what is said to be a nonfiction historical account cannot later claim the account is actually fictional to avoid the principle that there is no copyright in facts” (at para. 4).
In arriving at its conclusion, the Federal Court reaffirmed the longstanding principle that there are no copyrights in facts as was outlined in the Ontario Court of Appeal case of Deeks v Wells,  OR 818, 1931 CanLII 157 (CA). In assessing whether or not there was substantial copying of Kelley’s work, the Court relied on the Supreme Court case of Cinar Corporation v Robinson, 2013 SCC 73 (“Cinar”). While still undertaking a holistic analysis, the Court explaining that “the assessment of whether there has been copying of a “substantial part” of either book is determined in relation to the originality of the work that warrants the protection of the Copyright Act.” In addition, the Court considered the public policy reasons for not protecting facts, noting that there is a public good in having factual works fall into the public domain so that the work may be tested, challenged, verified, or disproved.
The plaintiff’s insisted that much of Kelley’s book was either mistaken or fictional and therefore argued the principle that there is no copyright in facts could not apply in this case. In particular, the plaintiff identified passages from Kelley’s book that they claim were embellished or wholly invented by Kelley but later ended up in Hendley’s book. According to the plaintiffs, Hendley’s inclusion of the fictional events amounted to copyright infringement.
After a thorough analysis of the evidence adduced the Court found that in the edition of Kelley’s book filed with the Court, Kelley, through several statements in the book, held the work out as factual, even referring to the source of his information as eyewitnesses and other individuals with direct knowledge of the Donnelly’s events.
The Court therefore concluded that where an author presents a work as historically factual, the same author cannot complain in a copyright infringement action that a subsequent author took them at their word and relied on the facts they presented as being true. The Court noted that, “an author cannot seek to disprove their own historical account and thereby purport to claim copyright over the “facts” contained in it on the basis that those facts are not true” (at para 97).
If the decision stands, it is noteworthy for how a holistic analysis will apply to non-fictional and historical works. Canada does not exclude non-protectable elements at the outside of the substantiality analysis, or follow an “abstraction-filtration-comparison” analysis. However, the decision confirms it is the expression and selection and arrangement of facts (and history represented as fact) that is protected, and not the underlying facts (as represented). In this case, the Court found that the structure, tone, theme, atmosphere and dialogue of the primary passages being relied on by the plaintiffs were copied, either in terms of quantity or quality. Where there were similarities, the Court found that the similar phrasing or characterizations were “not particularly important or original aspects of the telling of the … story” (at para. 152). Moreover, the Court found that there was little evidence of intentional taking to save time and effort. Concluding Hendley “in essence, told the same historical tale in a different way” (at para. 153).
This decision provides a much need reminder to true crime aficionados, non-fictional authors, and historians alike: copyright protection may fall short if you claim to be giving a factual account of events, however your original expression of these events (for example, your arrangement and compilation of factual material) would be protected by copyright. Authors hoping to prove colourable imitation or non-literal copying of non-fiction and historical works may continue to face an uphill battle.